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Transport of an NFA firearm in non-NFA configuration?

Discussion in 'Legal' started by Elkins45, Jan 13, 2018.

  1. Elkins45

    Elkins45 Member

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    I thought I knew the answer to this question, but I have spent a good bit of time trying to locate where I originally found it on the ATF website in one of their FAQ documents with no success. I'm hoping someone can tell me where to find it again.

    My question is this: can a person remove the <16" upper of a short barreled AR, replace it with a >16" barreled upper and then transport the gun across state lines without having to fill out the ATF transportation request form? I've been told a whole bunch of times that a SBR is only a SBR when in SBR configuration, and that you can swap barrels back and forth all you want. I understand that, but can I go hunting in Ohio tomorrow with my SBS Remington 870 by putting a 28" barrel on it, or do I have to request permission first even when not in NFA configuration?

    More importantly, can someone please help me find verification of this on the ATF website or in the actual regs?

    Thanks in advance for any help.
     
  2. Theohazard

    Theohazard Member

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    The answer to your question is "yes". Here's an excerpt from section 2.5 of the ATF's NFA handbook where they explicitly say that an SBR isn't an SBR unless it's currently in SBR configuration:


    This specific issue came up at the shop where I previously worked in WA. A customer was moving interstate and his Form 4s for both his SBRs came back just a week before he was making an interstate move. Our store was in the middle of an ATF inspection at the time, and my customer wanted me to ask the lead ATF agent if he could expedite his Form 5320.20 (interstate transfer form). The ATF agent said he couldn't, but he added that if the SBRs were disassembled into uppers and lowers and transported separately it would be perfectly legal. He said that as long as the SBR uppers and lowers weren't re-assembled (or transported or stored too close to each other) before the approved Form 5320.20 came back, no laws or regulations would be broken.

    So as long as you follow the constructive possession guidelines set forth in ATF Ruling 2011-4 (don't have the parts to make an SBR in "close proximity" to each other with no "useful [legal] purpose" for having those parts), you can transfer a registered SBR lower interstate just like it was a regular firearm. (Obviously, this is in reference to federal law. I'm not aware of any state or locality that would change this, but it's up to you to check state and local laws.)
     
    Last edited: Jan 14, 2018
  3. Elkins45

    Elkins45 Member

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    I thank you for your response, but the words “permanently” and “disposed of” are what bother me here. A very strict reading of this could lead someone to think your SBR is only rendered non-NFA if you have actually discarded the <16” barrel.

    As a practical matter, I do understand that no one would ever know it was ever an SBR when it’s wearing a long barrel unless they consulted the registry. It sounds like this might just be a good justification for engraving your info on the barrel rather than the receiver.
     
  4. Theohazard

    Theohazard Member

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    Those two words were used because of constructive possession concerns. The ATF knows that merely removing the barrel by itself isn’t necessarily enough to render it a non-NFA item, those parts can’t be close enough together that one could be cited for constructive possession.

    That’s why I also linked to ATF Ruling 2011-4, which mentions the SCOTUS guidelines for constructive possession. Yes, permanently disposing of the barrel is the safest way to avoid constructive possession, but it’s not the only way.
     
  5. Theohazard

    Theohazard Member

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    Elkins45, I should also point out that the ATF NFA handbook is a merely a book of guidelines, its content is not the law itself (except when they directly reference the law). So let's look at the actual law that applies here. The federal definition of "SBR" is found in 18 U.S.C. § 921 (a)(8):

    “The term ‘short-barreled rifle’ means a rifle having one or more barrels less than sixteen inches in length and any weapon made from a rifle (whether by alteration, modification, or otherwise) if such weapon, as modified, has an overall length of less than twenty-six inches.”

    So how could you be breaking the rules regarding interstate transport of an SBR if your rifle didn't meet the definition of an SBR? The only way is if you had the parts for making an SBR in "close proximity" to each other with no "useful purpose" for having them (see US v. Thompson-Center Arms Co and ATF Ruling 2011-4).
     
    Last edited: Jan 14, 2018
  6. Elkins45

    Elkins45 Member

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    That seems fairly well irrefutable. Thanks again.
     
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  7. Kenneth

    Kenneth Member

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    "Under FOPA, notwithstanding any state or local law, a person is entitled to transport a firearm from any place where he or she may lawfully possess and carry such firearm to any other place where he or she may lawfully possess and carry it, if the firearm is unloaded and locked out of reach." NRA-ILA Guide To The Interstate Transport Of Firearms
    Whether you may or may not legally possess it at your destination, is what really matters.
     
  8. Frank Ettin

    Frank Ettin Moderator

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    Not necessarily applicable to NFA items. Moving an NFA item interstate generally requires some approval of ATF. The reason for the OP's question is whether he can avoid the approval requirement by reconfiguring the item to fall outside the NFA.
     
  9. deadin

    deadin Member

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    Anybody care to define "close proximity" ??


    (Just remember, in the overall scheme of things, Earth is in "close proximity" to the Moon......)
     
  10. Theohazard

    Theohazard Member

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    I once asked that question to an ATF agent and he told me to ask a lawyer.
     
  11. bikemutt

    bikemutt Member

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    I could take any AR15 lower receiver and engrave anything I wanted to on it as long as said engraving didn't obscure the serial number. I'm wondering how my gun trust name, city and state would garner any more attention from LE than "I love Mom" when the lower and upper are clearly, and lawfully, configured as a rifle? Now if I happened to have a 10" upper in the same bag or vehicle, that's probably wading into constructive possession territory and is something I'd avoid unless I had all the right paperwork saying it's legal.
     

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