SBR question: multiple lowers, only one registered as SBR

[ExMachina]

Another thread here prompts me to ask a question that has been bugging me.

We all know it's illegal to have an non-SBR AR lower and a <16" bbl upper, even if the two are never assembled together.

What happens if I have one, non-SBR lower and one SBR lower along with more than one, <16" uppers? Do the unused uppers provide sufficient "opportunity" to assemble ANOTHER SBR on the non-SBR lower?

Is this scenario covered explicitly in ATF regulations?

 

[rjrivero]

Constructive possession is a great deal of fun, isn't it?

The general consensus is that you should have enough parts to make legal firearms. So if you have a NON sbr rifle, and a complete SBR, then you can have extra uppers to convert your SBR as you wish. You can NOT have an extra LOWER as well as extra Short Barreled uppers. Hope this makes sense.

 

[ExMachina]

Ah. Very good explanation. Thanks.

So basically owning one SBR with more than one SB upper effectively controls what the rest of you collection of firearms (with compatible receivers) looks like. That kinda sucks since it gives a spectrum of otherwise-legal (ie, legal if you didn't have a SBR) gun-related purchases, the potential to turn you into a federal criminal.

 

[AlexanderA]

What I think rjrivero is saying is that if you have a registered SBR lower, you can have several SB uppers that you can use on it interchangably. But if you also have a non-SBR lower, you better have a non-SB upper to go with it. An "orphan" non-SBR lower in proximity to SB uppers sure looks like constructive possession of an unregistered SBR.

 

[Carl N. Brown]

^ AlexanderA Post #4 matches the way I understand the ATF letters I have seen on the subject.

 

[rjrivero]

What I think rjrivero is saying is that if you have a registered SBR lower, you can have several SB uppers that you can use on it interchangably. But if you also have a non-SBR lower, you better have a non-SB upper to go with it. An "orphan" non-SBR lower in proximity to SB uppers sure looks like constructive possession of an unregistered SBR.

Absolutely my intent. AlexanderA is much more eloquent than I.

 

[Justin]

Does anyone have a citation for what they've posted?

I would have thought that the Supreme Court case of US vs. Thompson/Center would mean that it's ok to possess both SBR-papered lowers and regular lowers at the same time, provided you never put them together in the prohibited configuration.

http://www.stephenhalbrook.com/tc.html

 

[rjrivero]

Excellent point, Justin.

The salient point is that "Constructive Possession" is STILL left open by that ruling: (The full citation is in ATF Ruling 2011-4 pages 2-3)

However, the Court also explained that an NFA firearm is made if aggregated parts are in close proximity such that they: (a) serve no useful purpose other than to make an NFA
firearm (e.g., a receiver, an attachable shoulder stock, and a short barrel); or (b) convert a
complete weapon into an NFA firearm (e.g., a pistol and attachable shoulder stock, or a
long-barreled rifle and attachable short barrel). Id. at 511-13.

So if you have a spare upper for your SBR, and say you have a receiver that is for your next ubercool-AR-flavor-of-the-month build, (but don't yet have the 16"+ upper for it) it could still be argued you are in constructive possession of an Unregistered SBR.

So the general rule still stands: Have enough parts to make every lower you own a "legal firearm." Then have all the spare uppers you want, provided you can make legal firearms with those uppers.

However, if you build that receiver into a PISTOL FIRST, then you will have no issues, since per ATF Ruling 2011-4, you are perfectly LEGAL to build a PISTOL into a RIFLE and into a PISTOL AGAIN without violating NFA rules.

Clear as mud?

Now, how do you PROVE you made your spare ubercool-AR-flavor-of-the-month lower into a pistol FIRST? I don't know. I would take a picture of the pistol build on top of the newspaper on the day you build it. Then you have SOME proof of time line. Much more than the "man" could do if he decided to try to pinch you for it.

As for the Thompson Center Case, remember that the TC Encore was ONE receiver with multiple parts. It didn't come with "multiple lowers."

Please understand, I am not a lawyer, but I have these discussions with them on a frequent basis. This is OFTEN the topic of discussion.

 

[MasterSergeantA]

Both Alexander and rj have answered the question very well. I would only add that, as been discussed on the board before, the 'constructive possession' charge will likely be an add-on to something far more heinous that has brought you the unwanted (and perhaps, unwarranted) attention of the BATFE or other law enforcement group. It is highly unlikely that you will ever find yourself being visited by anyone specifically looking to count lower/upper combinations and for no other reason.