Question regarding a SBR

Discussion in 'Legal' started by carbine85, Jan 26, 2019.

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  1. carbine85

    carbine85 Member

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    I have an opportunity to pick up a Wolf AR15 piston upper with a 14.5" barrel. My plan is to pin on a longer muzzle device to make it 16" but I can't do that right away.
    Since I have several ARs does this mean I'm in possession of an illegal SBR even if it's tucked away and not on a rifle?
     
  2. Elkins45

    Elkins45 Member

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    Not if you own a pistol lower, or a stripped lower waiting to be turned into a pistol. Otherwise technically the answer is yes.
     
  3. carbine85

    carbine85 Member

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    I have a multi calibre lower with just the just the LPK installed that haven't completed.
    So does that make it an AR pistol ?
     
  4. Elkins45

    Elkins45 Member

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    It makes it still be a receiver, which has yet to become either a rifle or pistol. If you put a pistol buffer tube on it and a <16” barrel upper, then it’s a pistol. Until such time as it has been configured into a gun it is still a receiver. EXCEPT— if it was FIRST CONFIGURED as a rifle then ATF says it can NEVER be a pistol. The only thing it can ever become is an NFA-taxable short barreled rifle.

    If it were FIRST configured as a pistol then it can switch freely between rifle and pistol configuration, at least under federal law.

    If you own a 14” upper and an unbuilt lower what you own is a collection of pieces that can theoretically be assembled into a legal configuration, assuming that lower didn’t start life as a rifle. A lower that starts out as a rifle wouldn’t ever be legal because it couldn’t ever be used to make a pistol. As long as your lower is “pistol possible” you have a case that the parts you own can be assembled into a legal configuration.
     
  5. MachIVshooter
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    MachIVshooter Contributing Member

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    Assuming it was purchased as a lower receiver and not a complete gun, that makes it a "firearm" that can become a pistol or rifle, or remain an other "firearm" (<16" barrel with >26" OAL)
     
  6. 25-20 WCF

    25-20 WCF Member

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    Suggestion for the OP - do not rely on internet legal advice from well meaning posters. Go to the source, invest in a phone call to BATF (use a pay phone or burner cell). (J/K!)


    .
     
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  7. BSA1

    BSA1 member

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    IMO you are treading on shaky ground. I would hate to be your Defense Attorney. (Unless I was a bottom feeder so I could make a lot of money off of you in my fee).

    Since you already own several AR's that are functional it will only take you a minute or so to remove the upper receiver from one of your AR's, install the Wolf upper, drop in the BCG, close the upper and you have a instant SBR.

    Compare this to owning a 14.5" barrel that is not installed to a upper receiver. To build a pistol or SBR is going to require parts (upper receiver, gas tube, handguard, etc.) and tools. Obviously it is going to take time and effort to build a SBR. A uninstalled barrel is arguably just a part that has no use as is.

    I would get a letter from the BATF giving you permission in writing to possess the Wolf upper without a Tax Stamp and registration.
     
  8. pdsmith505

    pdsmith505 Member

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    Buy a buffer/tube/spring at the same time and finish your extra lower as a pistol. They are parts you'll need anyways eventually, and relatively cheap.

    ATF has opined previously that any buffer tube can be used on a pistol.
     
  9. Elkins45

    Elkins45 Member

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    During the 8-24 months you are waiting for the ATF to send their reply you will probably find the time to attach the flash hider.
     
  10. MachIVshooter
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    MachIVshooter Contributing Member

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    The rules regarding constructive possession/constructive intent for SBR aren't particularly complicated. Either the collection of parts can only be assembled into a title II firearm, and you are guilty, or they can be assembled into a title I firearm and, short of evidence to the contrary, it is presumed that a legal title I configuration is the intent, ergo not guilty.

    Machine guns, silencers and DDs are a little different.

    MG-Possession of a part alone constitute a crime where the receiver or drop-in conversion parts (lightning link, DIAS, etc.) are concerned, since the MG receiver or conversion parts are MGs in and of themselves.
    Silencer-all parts of a silencer are silencers themselves. Rear mounts & front caps are sometimes excepted, depending on configuration
    DD: No one part of a DD is a violation, but having all the parts to assemble one would be, since there is no way to make a title I gun configuration chambered for a non-sporting cartridge >.50 cal

    AOW is that catch-all for anything else, and prosecution basically requires a functional firearm that would meet the criteria.
     
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  11. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Cite legal authority.
     
  12. pdsmith505

    pdsmith505 Member

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    I'll give it a shot: United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992)

    The dicta delves into more detail which serves to support MachIV's assertation:

    I suppose one could read this ruling very narrowly and only apply it to gun manufacturers (FFL holders), or even only to Thompson/Center... but the ATF apparently doesn't read it that narrowly since, following the Thompson case, they changed their guidelines regarding "Once a rifle, always a rifle" to account for the legal possibility of the conversion from pistol -> rifle -> pistol.
     
    Last edited: Jan 26, 2019
  13. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Well it does relate to the question, but it’s not exactly definitive and deals with a very narrow, particularly defined, set of facts. So it’s probably overreaching to say that the case describes rules in general terms for deciding constructive possession issues.

    I think we need a few more cases before we can start talking about constructive possession rules in any broad sense.
     
  14. Elkins45

    Elkins45 Member

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  15. MachIVshooter
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    MachIVshooter Contributing Member

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    Most important is 6th amendment, presumption of innocence; demonstrating that a law could be broken is insufficient, must be proved that the law was broken or intended to be broken. But I don't need to tell you that.

    US v. Owens is another in addition to Thompson and Kent which demonstrates that conviction of possession of an unregistered SBR via constructive possession hinges on either owning parts which can only be used to assemble a short barreled rifle, or evidence that a short barreled rifle had been configured using the parts available when those parts could also be used to construct legal title I firearms.


    "appellant argues that he was denied due process guaranteed by the Fifth Amendment because the statute under which he was prosecuted, 26 U.S.C.A. § 5861(d), is ambiguous.4  According to appellant, it is unclear whether § 5861(d) covers the mere possession of unassembled parts without being registered, when those parts can be assembled into either an illegal or legal weapon.   In support of his contention, appellant relies upon the plurality opinion authored by Justice Souter in United States v. Thompson/Center Arms Co., 504 U.S. 505, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992) (Rehnquist, C.J., O'Connor, J., joining in the opinion).   Although Thompson/Center arose in a somewhat different context, appellant contends that it supports his argument that § 5861(d) does not unambiguously prohibit the possession without registration of the unassembled parts involved in this case.   We need not address this argument because the jury found that appellant Owens assembled the weapon with the seven-inch barrel, and as assembled it was clearly an unregistered rifle “having a barrel ․ of less than 16 inches in length.”
     
  16. carbine85

    carbine85 Member

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    Lots of very interesting information here guys. I appreciate the feedback.
    I'm almost thinking I should get the muzzle device pinned before I take possession.
    I'm also not sure how my multi calibre lower was checked off on the form. I need to find the receipt and make a call.
     
  17. Elkins45

    Elkins45 Member

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    Unless the seller was incompetent it should be checked off as a receiver. There are three options on the 4473 form: rifle, pistol and receiver.

    Getting the muzzle device pinned first would make all of this a moot point.
     
  18. Texas10mm

    Texas10mm member

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    That would depend on when you purchased it. The receiver option is fairly recent.
     
  19. pdsmith505

    pdsmith505 Member

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  20. Texas10mm

    Texas10mm member

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  21. MachIVshooter
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    MachIVshooter Contributing Member

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    But so is the routine sale of lower receivers by themselves. "Building" of ARs from components or kits has only been a thing for the last 10 years or so.
     
  22. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Well, the Sixth Amendment has nothing to do with the presumption of innocence. The Sixth Amendment protects the rights to (1) a speedy and public trial on a criminal charge; (2) a jury trial on a criminal charge; (3) be informed of the nature and cause of the accusation; (4) confront witnesses; (5) compulsory process for obtaining witnesses: and (6) counsel. The presumption of innocence has a long history in the Common Law, but it is not explicitly protected by the Constitution.

    And in general conviction for a crime doesn't necessarily require that it be proven that the defendant intended to violate the law. It is usually sufficient to demonstrate that the defendant intentional performed the acts which constitute the elements of the offense, whether or not he understood that doing those things was a violation of law. So if, for example, an offense were defined as having on one's dominion and control the components which could be readily assembled into a Title II weapon, it's possible that one could be convicted of the crime if he knowingly and intentionally had those items in his possession, whether or not he knew that doing so was illegal.

    Indeed, the central point of this thread is the question of what sort of intent, or evidence of intent, is necessary for a conviction for the possession of an unregistered short-barreled rifle based on possession of components which could be assembled into a short-barreled rifle.

    And no, you're absolutely wrong there. The fact is that in Owen the defendant actually did assemble a short-barreled rifle. So the Court never had occasion to address the question of whether possession of unassembled components would support conviction. And indeed, the portion of the opinion you quoted shows that clearly. In it the Court outlines the arguments of the Appellant (defendant) and then points out that the defendant's underlying conduct effectively mooted those arguments.

    On the other hand, in U. S. v. Kent (as cited by Elkins45 in post 14) the Eleventh Circuit affirmed Kent's conviction for possession of an unregistered short-barreled rifle based on his possession of a lower receiver (on which a rifle upper receiver with a legal length barrel was mounted) and a separated SBR upper receiver. In Kent the Eleventh Circuit considered both Thompson/Center and Owen and concluded that they were inapplicable. The court's reasoning is covered in the opinion.
     
  23. MachIVshooter
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    MachIVshooter Contributing Member

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    Which defers to US v. Thompson/center ruling, in that having (distributing, as it were) all the parts for a legal title I pistol and title I rifle on the same receiver does not constitute manufacturing an SBR, even though one could be assembled with those sets of parts.

    By virtue of the fact that a person is capable of violating laws anywhere, anyplace, at any time, in the absence of evidence that they did violate or intended to violate the law, it has to be presumed that they did not/wouldn't. That's wholly different from having violated a law without knowledge of the violation. I never said constructive possession was nullified by ignorance of the law.

    The intent component is demonstrable in court for constructive possession resulting in possession of an unregistered SBR if the parts cannot have been assembled into a legal title I firearm. We have long told people not to have a shorty upper around if they have a title I rifle or lower but no pistol/SBR/other firearm or lower onto which the short upper can be installed. US v. Kent makes this abundantly clear.

    Both cases do support my assertions.

    Kent had an upper, complete and ready for use, with no title I pistol or other firearm lower onto which it could be assembled legally. Ergo, it was only possible to use it in the making of a short barreled rifle. That case also made a point of the fact that the upper was readily installed and used in a matter of seconds, more than mere spare parts like a loose barrel. Which would be of concern for the OP, except he has told us that he has a receiver which is ostensibly configurable as a pistol or other firearm with a sub-16" barrel.

    The Owen case affirms that even though he had the parts for a legal title I configuration, having actually configured it as a title II SBR makes possession of the parts for a legal title I configuration irrelevant. That was part of my statement: "short of evidence to the contrary"
     
  24. Frank Ettin

    Frank Ettin Moderator Staff Member

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    What do you mean "defers"? How does my statement delegate to or submit to Thompson/Center? Thompson/Center is a case that might have a bearing on the question, but it doesn't by any means settle the question. The Eleventh Circuit didn't consider Thompson/Center at all in Owens and found it distinguishable in Kent.

    Is that supposed to mean something? One will have criminal liability for committing acts which are the elements of the crime. The question is when and under what circumstance is possession of parts which could be assembled into a short-barreled rifle an element of the crime of possession of an unregistered Title II weapon. That question has not been definitively answered. Thompson/Center described circumstances in which such possession is not. But in Kent (and United States v. Woods, 560 F.2d 660 (5th Cir.1977) and United States v. Zeidman, 444 F.2d 1051 (7th Cir.1971), cited in Kent), such possession was an element of the crime.

    Do you have any legal authority to support that?

    How nice for you, but the fact that you've been telling folks that doesn't mean it's correct.

    The Eleventh Circuit did mention that, but the court mentioned as part of a laundry list of factors which lead to the court's conclusion. It was not the only factor, nor did the court say anything which might suggest that it was dispositive. As far as we can tell from the opinion the result would not necessarily have changed had that not been the case.

    Which was still just one of a laundry list of factors.

    Nothing we've seen provides definitive guidance that it should not still be a concern for the OP.

    Hogwash. Having parts for a Title II weapon was irrelevant in Owens because Owens actually possessed a fully assembled short-barreled rifle (U.S. v. Owens, 103 F.3d 953 (11th Cir., 1997), at 955):

    Your opinions have been poorly supported, and paying attention to your opinions could get someone into a lot of trouble. Further posts which in my estimation lack adequate supporting authority will be deleted.[/QUOTE]
     
  25. DukeConnor

    DukeConnor Member

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