Please help explain constructive possession

[Elkins45]

SNIP

Dealers who knowingly transfer a firearm frame or receiver as a "long gun" are committing a violation of federal law. Not just that, but they are stupid, stupid, stupid for not reading the instruction printed in every Form 4473. Read: https://www.atf.gov/firearms/qa/may...eiver-unlicensed-individual-who-less-21-years



One doesn't need to be a lawyer to know you are wrong. So wrong you will be embarrassed after some reading.
An "assembled lower" whether with a pistol grip and pistol buffer.........is just a firearm receiver until a barreled upper is attached. Same with an assembled lower with shoulder stock.....just a receiver until completely assembled as a rifle.
Start with "Meaning of Terms": https://www.ecfr.gov/cgi-bin/text-i...&tpl=/ecfrbrowse/Title27/27cfr478_main_02.tpl



Well, being that that's been the guidance from ATF for over a decade you think every dealer would know. Again, even if the dealer erroneously checks handgun or long gun instead of other firearm.......that doesn't change what the firearm actually is. No more so than if he checked "Long gun" on a Colt Python doesn't make that Python a rifle or shotgun.



One just did.
When in doubt, read the instructions to Question 24 on page 5 of the 4473. And again, a completed lower DOES NOT have the "defining characteristics" of a long gun or handgun.

Everything you said is true but it doesn’t mention a possible pitfall that might be lurking. Suppose Joe Schmoe walks into Marty’s gun shop and trades his used AR lower for something. To everyone in the room it looks like a lower, but unbeknownst to Marty that receiver was first assembled as a rifle. Legally it can never be assembled as a pistol, so even though it looks like a receiver it is de jure a rifle. If Marty checks “receiver” on the 4473 he’s technically incorrect and if Billy Bob buys it and builds a pistol he’s unknowingly broken the (stupid) law.

I have no idea if anyone has ever ended up in the jackpot because of this, but it is technically a possibility. So I guess if you ever buy a used AR lower you should only use it to build a rifle.

 

[WestKentucky]

Everything you said is true but it doesn’t mention a possible pitfall that might be lurking. Suppose Joe Schmoe walks into Marty’s gun shop and trades his used AR lower for something. To everyone in the room it looks like a lower, but unbeknownst to Marty that receiver was first assembled as a rifle. Legally it can never be assembled as a pistol, so even though it looks like a receiver it is de jure a rifle. If Marty checks “receiver” on the 4473 he’s technically incorrect and if Billy Bob buys it and builds a pistol he’s unknowingly broken the (stupid) law.

I have no idea if anyone has ever ended up in the jackpot because of this, but it is technically a possibility. So I guess if you ever buy a used AR lower you should only use it to build a rifle.

The question there is how it could ever be proven. And with it being pretty obvious that Billybob could not possibly know, what DAwould prosecute, and what judge would let the trial proceed? Confiscate the weapon, sure, but jail? Hard to believe. Technically possible, yeah, but realistic... probably not.

 

[Frank Ettin]

The question there is how it could ever be proven....

It all depends on the totality of the circumstances and, because of the totality of the circumstances, what evidence might be available. It’s never safe to assume that one’s unlawful conduct can’t be proven.

 

[WestKentucky]

It all depends on the totality of the circumstances and, because of the totality of the circumstances, what evidence might be available. It’s never safe to assume that one’s unlawful conduct can’t be proven.

Or that what one believes to be lawful conduct is not in fact unlawful given circumstance unknown to that individual.

 

[Frank Ettin]

Or that what one believes to be lawful conduct is not in fact unlawful given circumstance unknown to that individual.

I'm not sure what you're saying here. Did you mean to say, "...believes to be lawful conduct is in fact unlawful..."?

 

[WestKentucky]

I'm not sure what you're saying here. Did you mean to say, "...believes to be lawful conduct is in fact unlawful..."?

Yeah. If I think it’s legal and I do it without having the knowledge that it is in fact illegal then it doesn’t change that a crime was committed, it does however change the stance on intent portion of the law.

 

[dogtown tom]

Everything you said is true but it doesn’t mention a possible pitfall that might be lurking. Suppose Joe Schmoe walks into Marty’s gun shop and trades his used AR lower for something. To everyone in the room it looks like a lower, but unbeknownst to Marty that receiver was first assembled as a rifle. Legally it can never be assembled as a pistol, so even though it looks like a receiver it is de jure a rifle.

No, its a receiver because it does not meet the definition of "rifle" in federal law. The dealer is required to record acquisitions of the firearm as it is, not as it might be or might have been. Same with a used receiver from a Mauser or Rem 700.

If Marty checks “receiver” on the 4473 he’s technically incorrect

Technically he IS CORRECT. Read the instructions on the 4473.

and if Billy Bob buys it and builds a pistol he’s unknowingly broken the (stupid) law.

ATF knows this is a possibility and will only say if the receiver was first built as a rifle, it can only be configured as a rifle in the future. They know the possibilities of a buyer acquiring a used receiver and assembling as a firearm other than a rifle. They would be loath to prosecute such a case because of the ambiguity of federal law (as pointed out in US v Thompson Center). In short, ATF regs require recordkeeping in a manner that could lead to a future transferee unknowingly assembling a firearm made from a rifle.
But YES, that receiver can only be reassembled into a rifle.

I have no idea if anyone has ever ended up in the jackpot because of this, but it is technically a possibility. So I guess if you ever buy a used AR lower you should only use it to build a rifle.

When I first received my FFL in 2008 I asked my IOI about this very scenario you described. All he would do is smile and repeat "an AE lower" is recorded as Other Firearm" on the 4473".........and had a smile the entire time.

 

[RickD427]

Yeah. If I think it’s legal and I do it without having the knowledge that it is in fact illegal then it doesn’t change that a crime was committed, it does however change the stance on intent portion of the law.

I'm not sure of your meaning in the last part of your sentence.

Please keep in mind, that between the concepts of "General Intent", "Specific Intent" and the intent to perform the prohibited acts ("mens rea"), it is irrelevant if the person knew that their conduct was unlawful. If a person intentionally performs illegal acts, under the mistaken belief that those acts are lawful, the crime is complete and may be prosecuted. This is markedly different from the circumstance where a person unintentionally commits the acts amounting to the crime (as in my earlier example of Jill punching Jack when she was trying to swat a fly).

In your earlier discussion of Billybob who purchases an AR lower that was once built into a rifle, and who then builds it into a pistol, Billybob has committed the crime of manufacturing a short barrel rifle. His conduct satisfies all of the elements of the crime, and he intentionally performed that conduct. The fact that he had no knowledge that the weapon was once a rifle is not an element of the crime. The elements only require the element be present. They don't require that Billybob knew it. Whether the case can be successfully prosecuted is a different story.

The issue tends to come up a lot in criminal trials where a defendant claims that they acted on the advice of their attorney, or other professional, and therefore lacked the requisite "mens rea" required for a conviction. You can get a better understanding by doing research into the "Advice of Counsel Defense." The case law is a little too extensive to discuss here, but in sum, that defense pretty much fails in the case of General Intent crimes, and has been successful where the mistaken advice produced the Specific Intent that resulted in the crime charged.

The age-old advice that ignorance of the law is no defense, remains pretty sound.

 

[dogtown tom]

The question there is how it could ever be proven.

As with any ATF firearms trace: Initial contact with National Tracing Center>manufacturer>distributor>dealer>first retail buyer.

If the firearm started as a rifle, received by the distributor as a rifle, sold to customer on the 4473 as a rifle and now its a pistol? Well, someone has some explaining to do.
If the firearm was a receiver all the way to the first retail customer who in turn sold it to who knows who before eventually being sold to "Marty's Gun Shop"?

And with it being pretty obvious that Billybob could not possibly know, what DAwould prosecute, and what judge would let the trial proceed?

This. Federal prosecutions for violations of firearms laws are few and far between. Only when they are stacking charge after charge to intimidate a defendant would this even get a look.

Confiscate the weapon, sure, but jail? Hard to believe. Technically possible, yeah, but realistic... probably not.

Seizure at worst, but most likely the ATF would say "put as stock on that and go home".

 

[Elkins45]

When I first received my FFL in 2008 I asked my IOI about this very scenario you described. All he would do is smile and repeat "an AE lower" is recorded as Other Firearm" on the 4473".........and had a smile the entire time.

AE lower?

 

[dogtown tom]

AE lower?

Special variant of AR lowers for people with fat fingers.

 

[Elkins45]

Special variant of AR lowers for people with fat fingers.

Oh, duuh on me for not realizing that was just a typo I wasted a whole lot of brain power trying to figure out what kind of special lower that was.

 

[Nature Boy]

I wasted a whole lot of brain power trying to figure out what kind of special lower that was.

Me too.

 

[CapnMac]

A lawyer and FFL opines:

 

[J.D.R]

It's not legal advice........ but good advice

Stay away from stupid questionable items.

If you want nfa pay the taxes and get stamps , nothing can be said or done to you then.