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Posted: 4/23/2012 5:42:00 PM EDT
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Here is the scenario:
Suppose someone is in possession of the following? More than 2 Complete 16" AR-15 Rifles 2 8" .300 BLK Complete Uppers 1 stripped never assembled lower The objective is to maintain possession of the uppers and remain legal until receipt of 2 additional complete .556 SBR's. Any advice is appreciated. Thanks |
| I'm not a lawyer, but I don't see a problem here as long as you don't attach the short-barreled uppers to a lower that began life as a rifle. Having a stripped lower helps (i think) because you could build it into a pistol and use the short uppers, then build it into a SBR when all the paperwork is done. |
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Based on what I have been able to glean from this and similar boards, it seems that the ATF would prefer you have two (2) stripped lowers if you have that number of short uppers. Otherwise, it could be suggested that the second one was "intended" to be part of an illegal SBR given the other rifles on the premises.
Having said that, if the uppers were put away somewhere nice and safe and no one knew you had them...while still a possible violation, it should cause no drama. Those wearing the aluminum foil chapeaus might feel much more vulnerable and worry more, but I don't see the point. The issue of 'constructive possession' keeps coming up, but it appears that that particular charge is something likely to be added to an existing indictment for something more heinous, just to round it out. If someone wants to sit in his/her garage and enjoy the guilty pleasure of putting a short upper on a rifle, fondling it for a while, then putting said upper away in a locked drawer, the law is still being broken but it isn't in the same category of stupidity as taking a video and posting it on You Tube. I am not for one moment condoning illegal behaviour, by the way. Just answering a question. |
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I have never seen anything from the ATFE that says you cannot have more than one upper for one pistol lower. Don't worry about that. And I know they do not care if you have more than one SBR upper for one SBRed lower. I have two approved Form 1s that have listed multiple calibers, barrel lengths, and over all lengths although now they only want one particular caliber, barrel length, and OAL. What you have to worry about is, can what you have in your possession ONLY be assembled into an illegal SBR? If the answer is yes, then you could pay the price. If the answer is no, then don't worry about how many uppers you have for a particular lower so long as that upper is legal on that lower.
Since you have a virgin stripped lower, IMO you should be OK because you have a lower that can be made into a pistol, but the part that gives me concern is it is not a pistol yet any more than it is a rifle yet. The really cautious could make a reasonable argument that you have two pistol/SBR uppers but do not own any lowers other than rifle lowers, since your lower is nothing as of yet, ergo, you are in possession of two illegal SBRs. Honestly though, I'd be a lot happier if that stripped lower had been set up in as a pistol lower. You don't have it to have it engraved or all that BS, just put a $25 pistol buffer tube on it and call it cheap insurance. You can use a standard CAR or Rifle buffer tube, the ATFE has said so, but it makes people less nervous to have a pistol buffer tube that no stock you have in your possession will fit. Now, if you had a CAR buffer tube or a Rifle buffer tube and had no spare stocks that would fit it, that would be better, but a pistol buffer tube removes any question. IMO, if you really want to play it safe, build the lower as a pistol, put the pistol buffer tube on there, and quit worrying. Then when your SBR stamp comes in sell the pistol buffer on the EE if you really hate having a spare in your possession. |
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The intention is to actually build out the stripped lower into a pistol as soon as I order the parts. We want to be able to hear the .300 BO with suppersor before the SBR's arrive. and I figure have a pistol lower never hurts anyways.
So if the assumption is I will have a completed pistol lower then having more the one short upper should be fine? |
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Absolutely IMO. Just as you can have as many rifle uppers as you want with your rifle lower, and as many 'less than 16 inch' uppers as you want with one SBRed lower, and since you can have as many T/C pistol barreled uppers as you want with one TC pistol lower, it only stands to reason that you can have as many pistol uppers as you want with one pistol lower. The ATFE has never required you to have a T/C pistol lower for every pistol barrel you own, even if you own TC rifles/muzzle loaders, so it only makes since that you can have as many short uppers as you want with only one pistol lower. When it comes to the ATFE way too many people get their tin-foil hats out and throw reason and logic out the window. I suppose one can make a good argument that the ATFE does very little based on reason and logic but in this case, I believe you are perfectly safe having as many pistol uppers as you want so long as you have at least one pistol lower.
You know, you could order the pistol buffer tube from Rock River for $25 including shipping (do not forget the receiver end plate-$6) and throw that on the lower. That would remove all doubt of your intensions even if you have no other parts on the lower. |
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Right now, technically,(in your hypothetical scenario) you are in possession of two illegal SBRs. This is because you have no way to configure a title one firearm with the short uppers you have. The only firearms that can be assembled from your parts are SBRs. Take Big Bores advice and build a pistol lower. Your other option is to store the uppers with a friend or family, out of your house, until you get a functioning pistol lower or registered SBR. Sorry, I see you want to maintain possession of the uppers. You could remove the stocks from the rifles and store them off site. Then there is no way to make a SBR. Other than that, pistol lower is the only way. 25 bucks is cheap insurance. ETA: By the way, it's .300BLK |
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Quoted: Here is the scenario: Suppose someone is in possession of the following? More than 2 Complete 16" AR-15 Rifles 2 8" .300 BO Complete Uppers 1 stripped never assembled lower The objective is to maintain possession of the uppers and remain legal until receipt of 2 additional complete .556 SBR's. Any advice is appreciated. Thanks Legal, as per US vs. Thompson/Center Arms. |
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You both wrong. Read United States v. Kent 175 F.3d 870 (USCA 11 Cir, 1999), he was found guilty of having an illegal SBR because he had a short barreled upper and only AR15 rifles, the very scenario asked about in the OP. "The evidence indicates that the upper receiver unit was a complete, intact unit and that this short-barreled upper receiver unit was "compatible" and could be interchanged readily with the upper receiver unit on the Colt AR-15. Moreover, an ATF agent testified that the result of interchanging these upper receiver units would be "a weapon which is designed and intended to be fired from the shoulder, capable of discharging a shot through a rifle bore[,] and having a barrel length of less than sixteen inches." Because the short-barreled upper receiver unit and the Colt AR-15 lower receiver unit were located in the same, small apartment and could be connected so quickly and easily, creating an operable short-barreled rifle with only a minimum of effort, evidence that Kent possessed both of these units was sufficient to prove that Kent possessed a "rifle having a barrel ... of less than 16 inches in length" for purposes of § 5861(d)." 175 F.3d 870 at 874. Kent's conviction under Count Three for possession of a short-barreled rifle was based on a Colt AR-15 found in Kent's apartment. The weapon charged in Count Three was discovered in two pieces in Kent's apartment:(1) a lower receiver unit with the stock and trigger mechanism and (2) an upper receiver unit containing a barrel with a length of less than sixteen inches (the "short-barreled upper receiver unit”). The short-barreled upper receiver unit's flash suppressor had been welded permanently to the rifle barrel, and when law enforcement officials measured the rifle barrel "from the chamber end to the end of the flash suppressor,” they determined the length to be fourteen inches. The lower receiver unit was a section of a .223 caliber, Colt AR-15 rifle, with serial number SP166738. The short-barreled upper receiver unit was an AR-15-type unit, compatible with AR-15-type lower receiver units. However, the short-barreled upper receiver unit was not attached to the lower receiver unit of this weapon at the time it was found. Instead, an upper receiver unit with a barrel length in excess of sixteen inches ("the longer-barreled upper receiver unit”) was attached to the lower receiver unit that was part of the weapon charged in Count Three. In Count Three, Kent was found guilty of possession of a rifle with a barrel length of less than sixteen inches, not registered in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). Section 5861(d) of the National Firearms Act ("NFA”) makes it unlawful for any person to "possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d). The term "firearm” is defined for purposes of § 5861(d) and the NFA in general as including, inter alia, "a rifle having a barrel or barrels of less than 16 inches in length.” 26 U.S.C. § 5845(a)(3). The term "rifle,” in turn, is defined as: a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifle bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge. 26 U.S.C. § 5845(c). This definition of a rifle does not specify that a weapon must be assembled completely in order to be a "rifle.” Cf. United States v. Woods, 560 F.2d 660, 665 (5th Cir.1977) (interpreting 26 U.S.C. § 5845(d), the NFA definition of "shotgun”). Instead, for a weapon to be a "rifle,” that weapon simply must be capable of being "readily restored to fire.” § 5845(c). ETA: By the way, Jason Christopher Kent served 78 month for his mistake. |
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I have two issues with the case you posted. -the situation is NOT identical based on the OP's possession of a non-rifle (non anything) Lower Receiver. I don't know if this changes the outcome, but it does make the situation non-identical. -the way that case report reads, just have the short upper and rifle lower is the felony.... So just having a complete pistol and rifle in the same location is a violation as you could readily assemble a SBR. Actually the way that case read, I could be charged with constructive possession of explosives because I have oily rags, gasoline and empty glass bottles. |
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Quoted: The problem was that Mr. Kent did not have any configuration of the short upper that would have resulted in a title 1 firearm. The short upper was complete and ready to install on a lower unit, however the only complete lower unit he had was a rifle although he did have numerous other spare parts. Keep in mind that this case I posted was an appeal to overturn his conviction, so he was not only already found guilty by jury, but the Appellate Court also upheld the conviction. I have two issues with the case you posted. -the situation is NOT identical based on the OP's possession of a non-rifle (non anything) Lower Receiver. I don't know if this changes the outcome, but it does make the situation non-identical. -the way that case report reads, just have the short upper and rifle lower is the felony.... So just having a complete pistol and rifle in the same location is a violation as you could readily assemble a SBR. Actually the way that case read, I could be charged with constructive possession of explosives because I have oily rags, gasoline and empty glass bottles. You argument that a complete rifle and a complete pistol would also be a SBR is incorrect in as the short upper can be fitted to a possessed pistol lower to form a title 1 firearm, something that Kent could not do. The fact that it could also be installed on the rifle lower is not an issue. In that line of thinking owning either gun would be illegal because you could use it to commit a crime. Or driving would be outlawed because you could speed. The only reason possessing both parts that can be assembled only into a NFA firearm is illegal is not because they could be assembled, it is because it is codified as such. The bottom line is Mr. Kent is now a convicted felon and can no longer own any firearm, all for just 2" and the lack of a pistol lower. |
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Quoted:
Quoted:
The problem was that Mr. Kent did not have any configuration of the short upper that would have resulted in a title 1 firearm. The short upper was complete and ready to install on a lower unit, however the only complete lower unit he had was a rifle although he did have numerous other spare parts. Keep in mind that this case I posted was an appeal to overturn his conviction, so he was not only already found guilty by jury, but the Appellate Court also upheld the conviction.
I have two issues with the case you posted. -the situation is NOT identical based on the OP's possession of a non-rifle (non anything) Lower Receiver. I don't know if this changes the outcome, but it does make the situation non-identical. -the way that case report reads, just have the short upper and rifle lower is the felony.... So just having a complete pistol and rifle in the same location is a violation as you could readily assemble a SBR. Actually the way that case read, I could be charged with constructive possession of explosives because I have oily rags, gasoline and empty glass bottles. You argument that a complete rifle and a complete pistol would also be a SBR is incorrect in as the short upper can be fitted to a possessed pistol lower to form a title 1 firearm, something that Kent could not do. The fact that it could also be installed on the rifle lower is not an issue. In that line of thinking owning either gun would be illegal because you could use it to commit a crime. Or driving would be outlawed because you could speed. The only reason possessing both parts that can be assembled only into a NFA firearm is illegal is not because they could be assembled, it is because it is codified as such. The bottom line is Mr. Kent is now a convicted felon and can no longer own any firearm, all for just 2" and the lack of a pistol lower. Still, the situations are NOT identical as the OP has an unassembled lower. This is a key point that Mr. Kent could not defend with. |
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Quoted: You can't actually say that, there were many AR parts found in the apartment. Those parts are not listed so we do not know if they included a stripped lower or not. The OP does not have an unassembled lower, he has a stripped lower. Unassembled indicates that he has the necessary parts to assemble it. Still, the situations are NOT identical as the OP has an unassembled lower. This is a key point that Mr. Kent could not defend with. The fact remains that a stripped lower is not considered a handgun or a rifle therefore without at least the addition of other parts, such as a pistol buffer tube, there is still no indication of intent to build a title 1 forearm from the upper. You can take you chances and try to win your case, this is simply a case that proves it is a risky course to take. Mr. Kent lost his case, twice. Lost his 2A rights and lost 6 1/2 years of his freedom. The OP, in his theoretical scenario, states that the stripped lower will be used to build a pistol lower yet has no other parts for a pistol. He also had the money to buy not 1 but 2 complete uppers but cannot afford the $100 that it cost to assemble that lower into a fully functional pistol lower, or even $25 for a buffer tube to show some hint of intent. I also must pull my statement that he could remove and store the stocks of the rifles off site. The reason being that although without a stock there would be no SBR, putting the short barreled upper on the rifle without a stock would still result in a firearm made from a rifle. The one way that the OP is potentially safe would be to pull the parts on one of the rifles and use them to build the virgin lower into a pistol using one of the short barreled uppers. He may then remove the short upper, install the long upper and put the stock back on. He then has 1 rifle and 1 pistol temporary converted to a rifle IAW ATF 2011-4. |
| Just to clarify this is not about saving money as much as it was trying to stay out of trouble until the SBR's come in. I now had the bright idea to order 2 Noveske lowers to assemble as pistols for now and Form1 them as well for a total of 4 SBR's. Problem is Noveske is backordered on lowers so we wait. Just to be safe the uppers are stored offsite at the moment. |
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Quoted: Just to clarify this is not about saving money as much as it was trying to stay out of trouble until the SBR's come in. I now had the bright idea to order 2 Noveske lowers to assemble as pistols for now and Form1 them as well for a total of 4 SBR's. Problem is Noveske is backordered on lowers so we wait. Just to be safe the uppers are stored offsite at the moment. No worries. I have a couple of Noveske lowers I'm waiting on too. If you already have a lower why not pick up one of these, then you can play with the uppers while you wait and not have any worries about legality. I have 2 pistol lowers kept just for parking short uppers on while I wait on paperwork. I realize that one lower is fine, and the fact that I have legal SBRs technically allows me to have many uppers, I find the pistol lowers cheap insurance and removes any doubts. As you can see by this thread there are many different opinions on what is legal, I just prefer to keep all my uppers mated to lowers to avoid any confusion. |
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