How is this legal?

[Jenrick]

Intent, under the law normally requires "substantial steps" taken to complete the offense or commit elements of the office.

Constructive possession is basically having taken substantial steps. What else are you going to do with an SBR upper if you only own rifle lowers that are not SBR registered? Sure you can argue you'll put it over the mantle and admire it, and never ever attach it to your lower. That is however best left for a judge or jury to determine the truthfulness of that statement. The issue is that an SBS barrel or an SBR upper really has no "purpose" other then being used to produce a short barreled firearm.

No matter how unlikely it is that people are using their "solvent separators" to filter their gun cleaning fluids, it is a legitimate use of those components. Same with building a suppressor with steel wool, tennis balls, and PVC pipe. Certainly constructed into a suppressor it's a problem, but having those three items in a box in your garage is not in of itself constructive possession.

-Jenrick

 

[basicblur]

Because if it's a rifle lower then you are in "constructive possession" of an illegal SBR. ATF has long taken the position that "once a rifle, always a rifle".

That sounds more like the yes part than the no (regulating by intent)?

As you state:

If you have the parts the presumption is that you have them for the purpose of assembling them into a firearm.

If they make that determination for a particular style of lower, what's to stop them from making it for another (if they haven't already done so)?

You got two lowers - one a rifle, one a pistol, and one short upper.
How does the ATF determine what lower you are going to mate the upper to?

Sounds like we're right back at "intent not being regulated"?

Hey, it's not my game - I choose not to tempt fate as some seem to do.
I'm just asking questions regarding the statement that "you can't regulate intent".

Mebbe you can't, but it sure seems like they're doing so?

 

[Elkins45]

You got two lowers - one a rifle, one a pistol, and one short upper.
How does the ATF determine what lower you are going to mate the upper to?

They don't need to determine it. They can just look and see which upper you have it attached to. The point being that you have the means (the pistol lower) to use the short barrel upper in a non-NFA application. Unless they catch you mounting it to the rifle lower you're GTG.

The problem would be if you ONLY had a rifle lower and a short upper. In this case the only possible use for the short upper is to mount it to an unregistered rifle lower. The particular collection of parts you possess can ONLY be assembled in an unlawful way. If you want to posess a short upper then you need to either have a pistol lower in your possession or have a valid stamp on a Form 4 for a lower.

 

[USAF_Vet]

Generally, constructive possession is an add-on charge. Often it's the only one that actually can be made to stick.

I can strip a maglight and stuff some engine freeze plugs down the tube with every intent of using it as a suppressor. But until I fire a shot through it and use it as such, it is a solvent trap. I can buy a Sig brace with every intent of using it as a stock. But until I actually shoulder it, its is an arm brace. Solvent traps and arm braces are perfectly legal items when used as designed and marketed.

It's a bit different when you have a short barrel upper, a stocked lower, no pistol lower, and no long barrel upper. In that instance, whether or not they are actually mated, the only configuration for them is as an SBR. There is no other use for either the lower or the upper. I suppose a charge of Constructive Possession in that instance would be regulating intent, but only because there is no alternate, lawful use. Is that regulating intent? I don't know, seems like it could be argued that way (and it apparently it is).

No one ever said the NFA or even the ATF made sense. NFA regulated short barrel rifles and shotguns due to their ease of concealability, but failed to get handguns, the easiest firearms to conceal, added to the roster of NFA control.

Constructive possession can stick even without intent, because until we have a trio of psychic triplets weeding out criminals before crimes are committed ala Minority Report, no one can prove intent. I have an AR pistol and an AR carbine and a box of parts, including extra stocks. I have zero intent of constructing an unregistered SBR (but every intent of filing a Form 1 for it). If, for some reason, ATF has reason to search my home and finds my box o'parts in one part of my house, and a compatible host for an SBR in another part of my house, can I get charged with CP? Perhaps, but the onus would be on them to prove my intent, which would be arguable considering I've taken steps to separate the parts from each other and don't store them in reasonable proximity to each other (gun in the cabinet upstairs, stocks in their boxes locked in my toolbox in the garage). But then again, I'm not giving ATF any reason to get a warrant to search my home for something and stumble upon gun box o'parts and my secured firearms.



I'm one of those guys though that believes NFA should be repealed entirely.

 

[basicblur]

They don't need to determine it. They can just look and see which upper you have it attached to.

In my little example, nowhere did I mention the uppers and lowers were attached.

The point being that you have the means (the pistol lower) to use the short barrel upper in a non-NFA application.

And are we not back to regulating intent?
Mebbe I have a pistol lower on the way, or was in the process of ordering one before you so rudely kicked my door in.

Unless they catch you mounting it to the rifle lower you're GTG.

Pretty darn definitive statement there - I wonder if all ATF folks feel the same way?

 

[USAF_Vet]

What did you do previously to garner the ire of said door kickers? ATF generally isn't in the habit of kicking down the doors of law abiding citizens to round up their gun collection for random inspection.

 

[HRnightmare]

While waiting for my form to be approved to assemble my SBR I kept my 10.5" upper on a pistol lower simply for the purpose of legally zeroing it in. I had all the parts in my safe to convert it to an SBR without having the form first. Some people go to the extremes (or at least they say they do) of doing things like having a friend keep the upper or putting it in their other home... If you are worried about someone coming into your house, discovering something that could be built into an unapproved SBR and actually convincing a States Attorney to prosecute you, chances are VERY VERY high that a "constructive possession" charge is the least of your problems.

This "constructive possession" sounds like something out of the Minority Report. I can't find a single article or even claim of someone being charged with it, much less convicted. I truly think this is to ward off people like one I know who owns a lot of property, has several shotguns and AR's in both pistol and rifle configuration but legally owns NO NFA items. I know for a fact that when he shoots on his property (which cant be seen from the road and is gated to no one can surprise him by showing up) that he puts the pistol upper on his rifle lower. I think he also has several of the "solvent traps" that use an automotive filter to suppress his guns.

Its my believe that the "constructive possession" is a scare tactic for guys like this. The scare that if law enforcement come around the corner and saw his rifle lower and a 10" barreled upper next to each other, even if not assembled he could still be charged with a crime.

 

[Elkins45]

While waiting for my form to be approved to assemble my SBR I kept my 10.5" upper on a pistol lower simply for the purpose of legally zeroing it in. I had all the parts in my safe to convert it to an SBR without having the form first. Some people go to the extremes (or at least they say they do) of doing things like having a friend keep the upper or putting it in their other home... If you are worried about someone coming into your house, discovering something that could be built into an unapproved SBR and actually convincing a States Attorney to prosecute you, chances are VERY VERY high that a "constructive possession" charge is the least of your problems.

This "constructive possession" sounds like something out of the Minority Report. I can't find a single article or even claim of someone being charged with it, much less convicted. I truly think this is to ward off people like one I know who owns a lot of property, has several shotguns and AR's in both pistol and rifle configuration but legally owns NO NFA items. I know for a fact that when he shoots on his property (which cant be seen from the road and is gated to no one can surprise him by showing up) that he puts the pistol upper on his rifle lower. I think he also has several of the "solvent traps" that use an automotive filter to suppress his guns.

Its my believe that the "constructive possession" is a scare tactic for guys like this. The scare that if law enforcement come around the corner and saw his rifle lower and a 10" barreled upper next to each other, even if not assembled he could still be charged with a crime.

Constructive possession convictions are likely reported as "illegal gun" or "illegal silencer".

Besides, as bad as a conviction would be a prosecution resulting in an acquittal would likely lead to financial ruin.

 

[Midwest]

ATF generally isn't in the habit of kicking down the doors of law abiding citizens to round up their gun collection for random inspection.

That happens in the U.K. And if we don't stick up for our rights, that could happen here too.

http://www.foxnews.com/world/2014/10/20/uk-gun-owners-now-subject-to-warrantless-home-searches/

SBR should be taken off the NFA and be classified as handguns. Silencers are not a firearm and should not be regulated. Hughes amendment should be abolished as well
.

 

[yugorpk]

Ive seen everything now.

http://www.amazon.com/JMPF-MagLite-...sC1oWoL&dpSrc=sims&preST=_AC_UL160_SR153,160_

http://www.amazon.com/MagLite-Solvent-Combo-Threaded-Adapter/dp/B00ZMJZRPM/ref=pd_bxgy_468_img_y

 

[LubeckTech]

When is an AR lower classified as a rifle or pistol?
I would think at the time of manufacture.

 

[Aaron Baker]

When is an AR lower classified as a rifle or pistol?
I would think at the time of manufacture.

You'd be wrong.

That is, at least, if you're talking about "stripped" lower receivers. If you buy a stripped lower that has never been built into a functioning firearm, then it's a receiver. That's it. Not pistol. Not rifle. Just a receiver.

Now, the ATF's current rule is that if the first configuration that a receiver is built into is a rifle, then it is forever a rifle and cannot be configured as a pistol. "First a rifle, always a rifle."

As a side note, many people may remember the older rule: "Once a rifle, always a rifle." That rule is no longer true.

The distinction is important, because under the new rule, if you build the receiver as a pistol first, then you may later configure it as a rifle, and then later turn it back into a pistol. The only thing you may not do (at least without a tax stamp) is put both a stock and a short barrel on at the same time. Under the current rule, even if the pistol is turned into a rifle, it can be turned back into a pistol. Under the old rule, once the pistol became a rifle, it had to stay that way.

This is a fairly arbitrary set of rules because it deals with interpretation of arcane federal laws. It raises numerous questions every time the topic comes up, the most common of which may be: how does the ATF know how you configured a receiver first? The answer is: they most likely don't and can't ever prove an "original" configuration.

Now, if you buy a completed rifle, then obviously they know it came from the factory as a rifle, and you can never make it a pistol. If you buy a completed pistol, then they know it came from the factory as a pistol, and you can make it a rifle, and then make it a pistol again (repeat as many times as you want) and there's nothing the ATF can say or do to stop you.

Another question that's often asked is: what's a rifle? What's a pistol? It's not always intuitive. Because barrel length doesn't really matter, even though it seems like it should. But here's some examples to explain:

16"+ barrel and stock: rifle
less than 16" barrel and no stock: pistol
16"+ barrel and no stock: pistol
less than 16" barrel and stock: short-barreled rifle (either illegal or legally registered, as the case may be)

The ATF has also clarified that ANY buffer tube may be used on a "pistol" AR15 build. It doesn't have to be a dedicated pistol-style tube that a stock can't attach to. It can be a rifle-style buffer tube or an adjustable carbine-style buffer tube. (Now, you could conceivably run into a constructive possession issue if you have a stock laying around that WILL attach, but that's not what I'm trying to delve into right now.)

So, let's say you buy a stripped lower and want to do an AR15 build. The best order of construction is to put the 16"+ barreled upper on the lower BEFORE you add the stock to the buffer tube. Voila! You just made a pistol. Now add the stock. Boom. It's a rifle. Take the stock off again, it's a pistol. You can do that any time you want now.

On the other hand, if you put the stock on the buffer tube while assembling the lower, and then add the 16"+ barreled upper, you've just made a rifle without it ever being a pistol first. Now it can only ever be a rifle.

And that, my friends, is why the ATF's interpretation of arcane federal firearms laws is ridiculous.

But, in short, a stripped receiver is not "officially" ever classified as anything. And as long as it's built as a pistol first, it can be both a pistol and a rifle, depending on how it is currently configured.

Aaron

 

[dogtown tom]

Aaron Baker

Quote:
When is an AR lower classified as a rifle or pistol?
I would think at the time of manufacture.

You'd be wrong.

That is, at least, if you're talking about "stripped" lower receivers. If you buy a stripped lower that has never been built into a functioning firearm, then it's a receiver. That's it. Not pistol. Not rifle. Just a receiver.

It doesn't even need to be a stripped lower, a complete lower with buttstock is still a firearm receiver and recorded as Other Firearm on the Form 4473.

To meet the definition of "rifle" it must have both a rifled barrel and shoulder stock attached.

 

[Aaron Baker]

It doesn't even need to be a stripped lower, a complete lower with buttstock is still a firearm receiver and recorded as Other Firearm on the Form 4473.

True. It's just much common, in my experience, to find completely stripped lowers for sale. But I guess "complete" lowers are not that uncommon. You're absolutely right that they aren't rifles yet. So I suppose there's no reason one couldn't take the stock off before putting an upper on, thus creating a pistol before it's a rifle.

Aaron

 

[USAF_Vet]

When is an AR lower classified as a rifle or pistol?
I would think at the time of manufacture.

Aaron has it right, but a lot of people get confused because some AR lowers have "Pistol" engraved into the receiver. It is purely cosmetic, or a requirement of State Law, although I know of no state that requires pistols be labeled as such.

Per federal law, a lower built into a pistol need not have any such markings. A "pistol" marked receiver can be used in a rifle build. Manufacturers only annotate completed firearms in their records as pistols, rifles or shotguns. Stripped receivers are none of those, and transfer simply as a firearm, and manufacturer records are annotated as such.

 

[Theohazard]

Aaron has it right, but a lot of people get confused because some AR lowers have "Pistol" engraved into the receiver. It is purely cosmetic, or a requirement of State Law, although I know of no state that requires pistols be labeled as such.

Here in WA, pistols have an extra state form a buyer needs to fill out in addition to the 4473. Also, if the buyer is purchasing a pistol and they don't have a WA state Concealed Pistol License, they have to go through a state waiting period instead of the normal FBI NICS background check. However, if the firearm isn't a pistol, the state doesn't get involved and only federal rules apply.

Some time in 2013, the state Department of Licensing (the agency that regulates gun sales) decided that they would get involved in the sale of AR lowers since they could be made into pistols. FFLs were told to ask customers buying an AR lower if that lower was going to be made into a pistol; if they answered "yes" they were supposed to fill out a state pistol form and go through the waiting period if they didn't have a CPL. Some FFLs decided to play it safe and require all AR lower sales to be sold as a pistol; the 4473 was still marked "other" but the extra steps to sell a pistol were still followed.

Eventually the ATF put a stop to this. Now lowers are back to being sold without state pistol paperwork, regardless of what the buyer's intentions are. But that period further confused people here in WA about "pistol lowers". And it doesn't help that Mega, a local manufacturer of AR uppers and lowers, sells lowers marked as "pistol".

 

[tepin]

yugorpk,
You are finding all the ATF sting operations on eBay and Amazon.
**

A pistol can become a rifle and converted back to a pistol but a rifle can never become a pistol (NFA violation).

The nice thing about buying stripped lowers or pistol lowers is you have the flexibility to use it as a pistol or rifle.

If you were to buy a rifle at Gander Mt. and remove the stock and replace the 16" upper with a 10" upper you would be violating the NFA (making a pistol from a rifle).

Everything depends on the lower and how it originally registered: "Other", "Pistol" or "Rifle".

 

[yugorpk]

yugorpk,
You are finding all the ATF sting operations on eBay and Amazon.
**

You give the ATF a lot more credit than I do.

 

[newfalguy101]

Everything depends on the lower and how it originally registered: "Other", "Pistol" or "Rifle".

A lower, stripped or assembled, is a receiver is a receiver and is ALWAYS an "other".

A lower, stripped or assembled, does NOT meet the definition of either a longgun OR a handgun.

 

[Aaron Baker]

A pistol can become a rifle and converted back to a pistol but a rifle can never become a pistol (NFA violation).

This is partially true. A firearm that started as a rifle (from the factory) can never become a pistol. However, a firearm that started life as a pistol, then became a rifle, can become a pistol again. (That's a change in recent years to the longstanding "once a rifle, always a rifle" rule.)

Everything depends on the lower and how it originally registered: "Other", "Pistol" or "Rifle".

On a federal level, there is no "registration." Even the 4473 sales form is not a "registration" of the firearm as a particular thing.

But, if by registration, you mean what configuration the firearm left the factory as, then your statement is true as far as it goes.

If it leaves the factory as a receiver (what used to be "other," but is now "receiver" on the 4473), then it can become anything.

If it leaves the factory as a pistol, then it can be a pistol. Or it can become a rifle. And if it becomes a rifle, it can become a pistol again.

If it leaves the factory as a rifle, then that's all it can ever be.

Aaron

 

[newfalguy101]

If it leaves the factory as a receiver (what used to be "other," but is now "receiver" on the 4473), then it can become anything.



Aaron

Actually, there is no option for "receiver", its "other"

"other" is the correct option for anything that doesn't meet the definition of

"Rifle" or Shotgun" or Handgun", such as receivers, suppressors and pistol grip ONLY shotguns

Prior to ATF amending the 4473's a few years ago, the only options were longgun or handgun.

 

[pjeski]

The actual option is:

Other Firearm (Frame, Receiver, etc. See Instructions for Question 18.)

And the instructions are fairly clear.

 

[dogtown tom]

Aaron Baker

Quote:
A pistol can become a rifle and converted back to a pistol but a rifle can never become a pistol (NFA violation).

This is partially true. A firearm that started as a rifle (from the factory) can never become a pistol. However, a firearm that started life as a pistol, then became a rifle, can become a pistol again. (That's a change in recent years to the longstanding "once a rifle, always a rifle" rule.)

Huh?
How is it "partially true" then you write the exact same thing?

newfalguy101

Quote:
Originally Posted by Aaron Baker If it leaves the factory as a receiver (what used to be "other," but is now "receiver" on the 4473), then it can become anything.

Actually, there is no option for "receiver", its "other"

Actually, there is.
While Question 18 "Type of Firearm" only gives the dealer Handgun/Long Gun/Other Firearm.........Question 29 requires the dealer to be more specific:
Pistol, revolver, rifle, shotgun, receiver, frame, pistol grip firearm that expels a shotgun shell, as well as NFA firearms: SBR, SBS, AOW, Machine Gun and silencer.

 

[newfalguy101]

Actually, there is.
While Question 18 "Type of Firearm" only gives the dealer Handgun/Long Gun/Other Firearm.........Question 29 requires the dealer to be more specific:
Pistol, revolver, rifle, shotgun, receiver, frame, pistol grip firearm that expels a shotgun shell, as well as NFA firearms: SBR, SBS, AOW, Machine Gun and silencer.

You got me.

However, the receiver "other" in question 18, is still just a receiver in question 29........

 

[Aaron Baker]

Huh?
How is it "partially true" then you write the exact same thing?

Yeah, I'm really not sure what I thought I read. I remember writing it and thinking that he'd said something along the lines of the old "once a rifle, always a rifle" rule. But clearly he didn't. Sorry, folks.

Aaron