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SBR that's not an SBR (that's really an SBR)

Discussion in 'NFA Firearms and Accessories' started by Elkins45, Dec 3, 2018.

  1. Elkins45

    Elkins45 Member

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    Yes, it's a confusing thread title. That's because I have a convoluted question.

    I have a legally owned (Form 1) AR 15 lower that is currently mated to a 10" upper with a silencer in 300 Blackout. I live in northern KY not too far from both the Ohio and Indiana borders and my travels sometimes take me into both states. I'm usually driving the same car that I take to the range, so there's always the possibility that absent minded me might just leave my SBR in the trunk.

    As I'm sure many people know, the NFA requires asking permission in advance to take an SBR out of state, but does not require this of silencers. Both IN and OH allow silencer ownership and neither have magazine capacity restrictions.

    Last weekend I happened to see a 'pistol brace' that I really liked. It's the Tailhook Mod 2 from Gearhead Works, and IMO it's the best of the braces. They have an ATF letter approving it as a pistol brace.

    So, here's what I'm wondering: what if I install a Tailhook brace on my SBR lower? When combined with the 10" upper does it legally become a pistol in spite of the fact that it has a stamp as an SBR? I ask because I know that if I add a 20" upper it no longer is an SBR. It's well established that it's only an SBR when in SBR configuration. Is it only a rifle when in rifle configuration? It would be nice to be able to leave my 'pistol' in the car and not have to worry about becoming a felon when crossing the river. It would just be traveling with an AR pistol, but I could throw it up to my shoulder earn back in Kentucky and not have to worry about the whole "redesign" thing. Or does "once a rifle, always a rifle" always apply? FWIW, the lower in question was bought new as an assembled lower and was not mated to a rifle upper when I purchased it.

    Thoughts?
     
  2. Jessesky

    Jessesky Member

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    Once registered as a rifle, a receiver can never be a pistol, ever. So it would not qualify as an AR pistol if you tossed the brace on, it would still be a rifle.

    You would have to buy a separate lower, register it as a pistol.

    That’s a federal law with the ATF, so not subject to state law.
     
    Last edited: Dec 3, 2018
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  3. badkarmamib

    badkarmamib Member

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    If you had built it as a pistol (with or without a brace) first, you could change back and forth between pistol and rifle as you wish. If you built it as a rifle first, it must remain a rifle. Confusing logic, but that, sadly, is the way it works.

    ETA: my understanding is that rifle and SBR are interchangeable as to the legality of switching back and forth, but I am no expert in NFA items, someone with more experience will be along shortly...
     
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  4. Elkins45

    Elkins45 Member

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    Let's assume it was assembled and fired the first time in a pistol configuration for this very reason. I do this with all my lowers except the first one I bought back in 1991.
     
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  5. Jessesky

    Jessesky Member

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    Edit: I overlooked this, yes you can start as a pistol and go to rifle configuration. But out of curiosity would it still count as a handgun for hunting if it’s in rifle configuration but a pistol lower?
     
  6. Elkins45

    Elkins45 Member

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    That’s a question that would be answered by the state fish and game people, and it would likely be different depending on the state.
     
  7. pdsmith505

    pdsmith505 Member

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    As a counter argument, consider this:

    The legal definition of a Short Barreled Rifle is outlined in 18 USC 921:
    If you have a legal SBR you either 1) Transfered a SBR (not a pistol) on a Form 4, or 2) you made a SBR (not a pistol) on a Form 1.

    In the first case, you have something that started as a rifle no matter how you look at it and the brace does nothing for you, since the resulting firearm is still "made from a rifle" and has a barrel less than 16 inches.

    In the second, you have taken a collection of parts, whether it was originally a pistol or not, and made a new firearm (in the eyes of the law), specifically a short barreled rifle. Replacing a stock with a brace on the Form 1 SBR would then still result in a firearm with a barrel less than 16" in length that was made from a rifle, and still subject to the rules surrounding SBR's. The possession wouldn't be illegal, since it is still properly registered, but transport across state lines with out permission would be. Keep in mind that installing a 16"+ upper would place the SBR outside of the legal definition of an SBR, and no longer subject to the transport requirements. Maybe, if the overall length was greater than 26" without a stock you wouldn't fall within the definition anymore either.

    The Thompson Center case (United States v. Thompson-Center Arms Company, 504 U.S. 505 (1992)) which is the basis of the current ATF opinion that Pistol-Rifle-Pistol is OK, even if Rifle-Pistol is not, dealt solely with Title 1 firearms. It did not speak to the idea of Pistol-SBR-Pistol other than to say that act of creating an unregistered SBR from the kit would be illegal, and, legally Rifles and SBR's are different animals entirely.

    So, the question then becomes, are you comfortable extrapolating the legal results of the Thompson Center case to cover whether or not, legally, you are starting from a pistol as opposed to a rifle?

    This isn't necessarily how I would read it, but I also don't have occasion to make that gamble. A less problematic solution would be to put in a 5320.20's for the entire year in the neighboring states and not worry about it.
     
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  8. AlexanderA
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    AlexanderA Member

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    This whole discussion highlights the insane silliness of these rules. It's gotten to the point where they're not practicably enforceable.

    In a sane, non-polarized world, it would be time for a root-and-branch rewriting of the entire NFA.
     
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  9. greyling22

    greyling22 Member

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    Sure, but I guarantee you that the price of a stamp would go up.
     
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  10. AlexanderA
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    AlexanderA Member

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    The price of the stamp is probably the last thing preventing people from getting NFA items. Anyway, in a rational system, SBR's/SBS's would be removed from the NFA entirely, because the original reason they were put in was as a corollary to handguns, which were left out in the final version of the bill. And suppressors don't belong in the NFA either, because their inclusion was based on false assumptions (that they "silenced" like in the Hollywood movies).
     
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  11. Elkins45

    Elkins45 Member

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    That form asks for a specific address where you will be going. I doubt they would accept “statewide, all year” as an answer.
     
  12. dogtown tom

    dogtown tom Member

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    I know several SBR owners who put in a specific gun range address in several states......and show a date of travel for a year. Every year they send in an updated 5320.20
     
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  13. pdsmith505

    pdsmith505 Member

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    I keep an approved 5320.20 with my parents' address in NM with a 1 year duration. Renew it a month ahead of the expiration of the last one. Last one took two weeks to get back after e-mailing it in.
     
  14. bearcreek

    bearcreek Member

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    In a sane world (or country, rather), one where law makers actually respected and followed their oath of office, the NFA would not exist at all.
     
  15. Ryanxia

    Ryanxia Member

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    Something to note as well, just because you have your tax stamp to make it into an SBR doesn't mean you have already physically done that yet so in pdsmith505's example you could potentially say it is still and has always been a pistol, and that just because you have the legal ability to make it into an SBR doesn't mean you have already done that.

    Jessesky's question about hunting with something that is/was a pistol lower, I think if you have a stock on it at the time of hunting it would be considered a rifle since the legal definition of a rifle includes the clause of 'being designed to be fired from the shoulder.'
     
  16. Elkins45

    Elkins45 Member

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    That’s the NFA definition of a rifle, but ATF doesn’t enforce game laws. Your state game regs might define it differently for the purposes of regulating hunting weapons. What you propose is the logical answer but there’s no requirement that state governments be bound by logic. Indiana’s deer cartridges rules are proof of that.
     
  17. pdsmith505

    pdsmith505 Member

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    Would be a hard argument to win if, worst case scenario, the dedicated LEO asking you about your "pistol" noticed additional engravings on the "pistol". Going as far as engraving the receiver but stopping short of actually completing the SBR might seem fishy.

    But that's getting way down into the hypothetical weeds... you would have to first give them a reason to want to inspect your firearm.
     
  18. AlexanderA
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    AlexanderA Member

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    Agreed, but the NFA is not going to disappear. Within the realm of what is (remotely) possible, we can try to limit it to just machine guns and destructive devices.
     
  19. Ryanxia

    Ryanxia Member

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    Engraving or not at least there is a legal definition of an SBR and that includes having been designed or redesigned to fire from the shoulder. Unless you have a stock on it I don't see how it could become an issue. And of course all of this is in the most unlikely of scenarios, I've owned NFA items for years and when I pull them out at the range or have them on the counter at the gun shop no LEO's ever ask for proof of legality they always just want to have fun with it! haha.
     
  20. Elkins45

    Elkins45 Member

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    ^^^^ Yeah, a whole lot would have to go wrong before this ever came to a test. I've been driving for 40 years now and have e yet to be asked to show a police officer what's in my trunk.

    I mostly posted this for an interesting discussion, not because I'm seriously losing sleep worrying about it.
     
  21. Lucky Derby

    Lucky Derby Member

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    The safest answer is to build/buy a second AR in the pistol configuration you mentioned. Keep it in the trunk rather than the SBR. Then there is none of this crossing State lines without permission worry.
     
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  22. SCC

    SCC Member

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    LD has the answer. Build a new pistol lower, put your SBR upper on it. Put a 16" upper on your SBR lower. Now you can go anywhere in the free states. You can even have additional short or long uppers with you. Just never have a set of parts that can ONLY be configured as an SBR. If you want to configure the actual SBR remember to file the paperwork ahead of time.
     
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  23. FL-NC

    FL-NC Member

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    That seems like a good question for the NFA branch. I would think it would NOT be ok, because the receiver is registered and out of state without permission, regardless of what is on the back or front of it. The safest move would be to get another complete lower with a brace.
     
  24. dogtown tom

    dogtown tom Member

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    It was a good question decades ago.;)
    Here's just one ATF letter on the subject:
    https://www.guntrustlawyer.com/file...-Title-II-as-a-Title-1-across-state-lines.pdf

    It's well established that an SBR or SBS is only an NFA firearm when configured as such. ATF regulations clearly define what is/is not an SBR or SBS.
     
  25. dogtown tom

    dogtown tom Member

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    Not true.
    If you are in possession of a short bbl and that receiver you are still in possession of an SBR.
    Read the last paragraph of the ATF letter above.
     
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