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[ARCHIVED THREAD] - Constructive Possession? (Page 1 of 2)
Posted: 8/22/2016 10:40:25 AM EDT
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Please pardon me for the stupid question.
I am sure that most of you have pistols with Picatinny light rails. Now, if you have a vertical grip that can be installed on a Picatinny, wouldn't you now be in constructive possession of an AOW? Similarly, if you have an AR15 and buy an AR Pistol, wouldn't that constructive possession too? |
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Please pardon me for the stupid question. I am sure that most of you have pistols with Picatinny light rails. Now, if you have a vertical grip that can be installed on a Picatinny, wouldn't you now be in constructive possession of an AOW? Similarly, if you have an AR15 and buy an AR Pistol, wouldn't that constructive possession too? Only if they can prove intent... yep, it really is that stupid |
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If you have a legal use for every part, then you are ok. If all you have is pistols, and you own a vertical grip, then you could be charged. Well, can't my intent to own that grip be "I bought it as a cheap price so that I could use it on my rifle purchase", which I'll get to as soon as I have the money? |
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Well, can't my intent to own that grip be "I bought it as a cheap price so that I could use it on my rifle purchase", which I'll get to as soon as I have the money? Quoted:
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If you have a legal use for every part, then you are ok. If all you have is pistols, and you own a vertical grip, then you could be charged. Well, can't my intent to own that grip be "I bought it as a cheap price so that I could use it on my rifle purchase", which I'll get to as soon as I have the money? By that logic, if you had only rifles and bought a short upper, you could say "I bought it for when I get the money to build a pistol" but that's not how the ATF will try to spin it. |
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don't care.
considering 90 percent of Arfcom is 6"3, 235lbs of solid muscle, pays cash for new trucks and homes, would turn down a blow job from Kate Upton because she's a fat sea cow, but yet to actually come up with an example of when "constructive possession" has been used to fuck with somebody. ill file this under 922R and keeping a copy of form 1 on me at the range, and proceed to give zero fucks |
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don't care. considering 90 percent of Arfcom is 6"3, 235lbs of solid muscle, pays cash for new trucks and homes, would turn down a blow job from Kate Upton because she's a fat sea cow, but yet to actually come up with an example of when "constructive possession" has been used to fuck with somebody. ill file this under 922R and keeping a copy of form 1 on me at the range, and proceed to give zero fucks 
https://blog.princelaw.com/2009/09/01/florida-man-arrested-for-constructive-possession-of-an-sbr/ |
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By that logic, if you had only rifles and bought a short upper, you could say "I bought it for when I get the money to build a pistol" but that's not how the ATF will try to spin it. Quoted:
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If you have a legal use for every part, then you are ok. If all you have is pistols, and you own a vertical grip, then you could be charged. Well, can't my intent to own that grip be "I bought it as a cheap price so that I could use it on my rifle purchase", which I'll get to as soon as I have the money? By that logic, if you had only rifles and bought a short upper, you could say "I bought it for when I get the money to build a pistol" but that's not how the ATF will try to spin it. The upper would be for my pistol build, for which I don't have the money for at the moment. |
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The upper would be for my pistol build, for which I don't have the money for at the moment. Quoted:
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If you have a legal use for every part, then you are ok. If all you have is pistols, and you own a vertical grip, then you could be charged. Well, can't my intent to own that grip be "I bought it as a cheap price so that I could use it on my rifle purchase", which I'll get to as soon as I have the money? By that logic, if you had only rifles and bought a short upper, you could say "I bought it for when I get the money to build a pistol" but that's not how the ATF will try to spin it. The upper would be for my pistol build, for which I don't have the money for at the moment. But you don't have a legal use for the upper "right now", just like your example with the vertical grip. Basically, you're not going to get in trouble for it if you don't spread it around or advertise on the internet, but it could be used as a tack-on charge if you get into some other trouble. Ultimately, if the ATF wants to screw with you, they're going to screw with you in whatever way you make possible for them. |
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http://www.sigarms556.com/threads/nfa-and-the-issues-surrounding-constructive-possession.9947/ Hello guys its me Jesus Amador with the so called illegal sbr I saw that you guy posted threads on what happened to me and i gotta say some of you guys know your stuff, that is exactly what happend, constructive intent is bull**** there is no such thing in the statutes. and federal law is not violated. could they enforce it? eh if your al capone and cant get you for murder they might try. But other than that 3weeks after the arrest charges where dissmissed and the gun is back in our possession with stock, kgrip and all, man was that detective PISSED!! ha i love it. so much for his 30+ man 2 week investigation on the matter. Way to use our tax dollars by the way. By the way its posted back on floridaguntrader.com if any one wanted to see the picture of it. OR should i sbr it and register a suppressor for it and take it to the lee county police range instead of selling it? What can i say i am a public servant i push and push against these stupid make shift laws so others dont have to. Funny part is i knew about 90% that he was a cop. i did not surprise me that they would arrest a person on a charge that does not exist. Not to mention i still remember his **** eating grin of the captain in charge of the investigation. He would not even talk to me when i requested to speak to him yet he was more than eager to talk when a signed order from the judge went on their desk when it came to retrieval of property. Last edited by Digitalage03; December 19, 2009 at 08:34 AM. Reason: added text |
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http://www.sigarms556.com/threads/nfa-and-the-issues-surrounding-constructive-possession.9947/ Quoted:
http://www.sigarms556.com/threads/nfa-and-the-issues-surrounding-constructive-possession.9947/ Hello guys its me Jesus Amador with the so called illegal sbr I saw that you guy posted threads on what happened to me and i gotta say some of you guys know your stuff, that is exactly what happend, constructive intent is bull**** there is no such thing in the statutes. and federal law is not violated. could they enforce it? eh if your al capone and cant get you for murder they might try. But other than that 3weeks after the arrest charges where dissmissed and the gun is back in our possession with stock, kgrip and all, man was that detective PISSED!! ha i love it. so much for his 30+ man 2 week investigation on the matter. Way to use our tax dollars by the way. By the way its posted back on floridaguntrader.com if any one wanted to see the picture of it. OR should i sbr it and register a suppressor for it and take it to the lee county police range instead of selling it? What can i say i am a public servant i push and push against these stupid make shift laws so others dont have to. Funny part is i knew about 90% that he was a cop. i did not surprise me that they would arrest a person on a charge that does not exist. Not to mention i still remember his **** eating grin of the captain in charge of the investigation. He would not even talk to me when i requested to speak to him yet he was more than eager to talk when a signed order from the judge went on their desk when it came to retrieval of property. Last edited by Digitalage03; December 19, 2009 at 08:34 AM. Reason: added text Does said account not meet the criteria? Quoted:
yet to actually come up with an example of when "constructive possession" has been used to fuck with somebody |
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don't care. considering 90 percent of Arfcom is 6"3, 235lbs of solid muscle, pays cash for new trucks and homes, would turn down a blow job from Kate Upton because she's a fat sea cow, but yet to actually come up with an example of when "constructive possession" has been used to fuck with somebody. ill file this under 922R and keeping a copy of form 1 on me at the range, and proceed to give zero fucks https://blog.princelaw.com/2009/09/01/florida-man-arrested-for-constructive-possession-of-an-sbr/ oh nice you managed to find one case in the country from 2009 ... not only that but I doubt the PD found it, they were more than likely tipped off that there was a firearm for sale on Craigslist and an investigator was trying to make a name for himself by taking "concealable weapons of war" off the street... also not enough information to go off of, for all we know they could have asked him to send a photo with the stock on before meeting up. ETA: looks like the investigators were just a bit power hungry |
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oh nice you managed to find one case in the country from 2009 ... not only that but I doubt the PD found it, they were more than likely tipped off that there was a firearm for sale on Craigslist and an investigator was trying to make a name for himself by taking "concealable weapons of war" off the street... also not enough information to go off of, for all we know they could have asked him to send a photo with the stock on before meeting up. ETA: looks like the investigators were just a bit power hungry Quoted:
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don't care. considering 90 percent of Arfcom is 6"3, 235lbs of solid muscle, pays cash for new trucks and homes, would turn down a blow job from Kate Upton because she's a fat sea cow, but yet to actually come up with an example of when "constructive possession" has been used to fuck with somebody. ill file this under 922R and keeping a copy of form 1 on me at the range, and proceed to give zero fucks https://blog.princelaw.com/2009/09/01/florida-man-arrested-for-constructive-possession-of-an-sbr/ oh nice you managed to find one case in the country from 2009 ... not only that but I doubt the PD found it, they were more than likely tipped off that there was a firearm for sale on Craigslist and an investigator was trying to make a name for himself by taking "concealable weapons of war" off the street... also not enough information to go off of, for all we know they could have asked him to send a photo with the stock on before meeting up. ETA: looks like the investigators were just a bit power hungry The case was dropped. Please see my post above. |
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oh nice you managed to find one case in the country from 2009 ... not only that but I doubt the PD found it, they were more than likely tipped off that there was a firearm for sale on Craigslist and an investigator was trying to make a name for himself by taking "concealable weapons of war" off the street... also not enough information to go off of, for all we know they could have asked him to send a photo with the stock on before meeting up. ETA: looks like the investigators were just a bit power hungry Quoted:
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don't care. considering 90 percent of Arfcom is 6"3, 235lbs of solid muscle, pays cash for new trucks and homes, would turn down a blow job from Kate Upton because she's a fat sea cow, but yet to actually come up with an example of when "constructive possession" has been used to fuck with somebody. ill file this under 922R and keeping a copy of form 1 on me at the range, and proceed to give zero fucks https://blog.princelaw.com/2009/09/01/florida-man-arrested-for-constructive-possession-of-an-sbr/ oh nice you managed to find one case in the country from 2009 ... not only that but I doubt the PD found it, they were more than likely tipped off that there was a firearm for sale on Craigslist and an investigator was trying to make a name for himself by taking "concealable weapons of war" off the street... also not enough information to go off of, for all we know they could have asked him to send a photo with the stock on before meeting up. ETA: looks like the investigators were just a bit power hungry You never said "successful conviction", you asked for an example of someone being screwed with over "constructive possession" and I gave you an example. It doesn't take a conviction to cost you an arm and a leg in legal fees and such. I'd rather not give a power-tripping detective (or ATF agent) an excuse to screw with me. The easy way to do that is to not put (potentially inferred) NFA violations on the internet. Right or wrong doesn't matter until it goes to the solicitor or trial. They can make your life miserable until then. |
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This was discussed by the U.S. Supreme Court in U.S. v. Thompson/Center Arms Co., -U.S.-(1992).
As firearms attorney James Bardwell explains: This is another recent examination of the meaning of the language of the NFA by the Supreme Court, along with Staples. Neither involves constitutional law. In this case the court was called upon to decide what constituted a short barreled rifle. T/C wanted to market a kit consisting of one receiver for their Contender gun, a 16"+ barrel, a >16" barrel, a pistol grip and a shoulder stock. This kit could be used, as intended, to assemble a rifle or a pistol, or it could also be used to assemble a SBR. As it could be so used, ATF decided it was a SBR. T/C made one unit on a Form 1, then sued for a tax refund, claiming it wasn't subject to the NFA. This is the way to challenge such a classification. Doing the thing York or SWD did, in those cases, is an invitation to a prosecution. The Staples case will limit such things, but one can easily lose....Here all that was at stake was money. The court decided that the language of the definition of a SBR was vague, and gave it the reading most favorable to the taxpayer, T/C. They decided the kit was not a SBR, nor was any set of parts where they could be used for a legitimate purpose, even if they could also be used to assemble a SBR. However a SBR fully assembled was also clearly a SBR. Thus the other grey area was a SBR in parts form, like an Uzi carbine and a Uzi SMG barrel. A lower court had held in a prior case that that set of parts was a SBR. The court agreed; that if the parts had only one use, to make a SBR, and a person possessed them all that was a SBR also. So according to the Supremes, you would have an unregistered AOW/SBR. They affirmed the conviction of the Uzi carbine owner who also owned a sub-16" Uzi SMG barrel, even though he could have planned to buy an Uzi pistol at some time in the future. I am not an attorney, and Your Mileage May Vary. 
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In US v. Kwan the judge stated that if an individual has a obvious lawful purpose the ATF can NOT prosecute you for constructive possession.
Mr Kwan was charged with "constructive possession" of an SBR because he had two shoulder stocks for the VP-70m (a machinegun) and also had a VP-70z (a pistol) in his possession. In plain English: If you have an item that could be used to assemble something regulated under the NFA, make sure you have a lawful purpose for it. For example: Own just an AR rifle, it will not look good if a pistol length upper is kept in the gun case with it. Turns a traffic stop into something....well....unwanted. |
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Quoted: Mr Kwan was charged with "constructive possession" of an SBR because he had two shoulder stocks for the VP-70m (a machinegun) and also had a VP-70z (a pistol) in his possession. |
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People read waaaaaayyyy too much into constructive intent. Filing a form 1 is admitting constructive intent and no one is charged.
Buy your stuff and quit posting on the net. If you want a aow, sbr, sbs file a form 1 and do it legally. Stop asking is this constructive posessio and intent |
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"Constructive intent" does not exist. No one had mentioned it in this thread (except for one imported quote). The correct term is "constructive possession" which is what this thread has been discussing. Now get that fictitious term outta here. lol It's completely OK to ask questions. This is the internet. We're here to help.  |
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Will a VP-70m stock even fit on a VP-70z? I thought there was something physically different on the z to prevent it from fitting. Quoted:
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Mr Kwan was charged with "constructive possession" of an SBR because he had two shoulder stocks for the VP-70m (a machinegun) and also had a VP-70z (a pistol) in his possession. The early imported VP-70Z models the stock attachment slots were present.....It will slide right on (though it does not make it full auto). Later versions imported, the injection mold was modified to prevent it's installation (you can see the casting lines from the mold insert). Judges order in the Kwan case is here: http://www.nfaoa.org/documents/JudgeZillyNewTrialOrderKwanCase.pdf |
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OP,
constructive intent is an add on charge, (so if you're cooking meth in the basement or barn and get raided, it'll be added to your list of charges). if you are otherwise obeying the law and not doing anything to invite johnny Q LAW into your life, you've not got to worry about it. that being said, it's a really good idea to keep things that could be evidence of constructive intent still in their manufacturers packaging until you have your stamp. |
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don't care. considering 90 percent of Arfcom is 6"3, 235lbs of solid muscle, pays cash for new trucks and homes, would turn down a blow job from Kate Upton because she's a fat sea cow, but yet to actually come up with an example of when "constructive possession" has been used to fuck with somebody. ill file this under 922R and keeping a copy of form 1 on me at the range, and proceed to give zero fucks You do not hear of many cases because 97% of all Federal Charges do not make it to trial. A small number are dropped, and the rest quietly take a plea deal. But here is 11CC Case Law of a text book example of "Constructive Possession". He gambled, went to trial lost, and then lost his appeal. http://caselaw.findlaw.com/us-11th-circuit/1211612.html |
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Here was a conviction from earlier this year.
30 months in prison for having a pistol with a carbine tube and unattached stock in his possession after being discovered by the cops during a traffic altercation. http://www.ar15.com/forums/t_6_50/458710_SBR_trial_began_today.html http://www.ar15.com/forums/t_1_5/1869992_Arkansas___Man_gets_30_month_sentence_for_possession_of_unregistered_SBR.html |
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Here was a conviction from earlier this year. 30 months in prison for having a pistol with a carbine tube and unattached stock in his possession after being discovered by the cops during a traffic altercation. http://www.ar15.com/forums/t_6_50/458710_SBR_trial_began_today.html http://www.ar15.com/forums/t_1_5/1869992_Arkansas___Man_gets_30_month_sentence_for_possession_of_unregistered_SBR.html again, an add on charge.. but this is a solid illustration of constructive intent. the fact that you're asking about constructive intent illustrates that you can not be anywhere near the line OF constructive intent. there will ALWAYS be intent, solely because you are asking about it in this thread. (i.e. you'll never be given the benefit of doubt) |
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again, an add on charge.. but this is a solid illustration of constructive intent. the fact that you're asking about constructive intent illustrates that you can not be anywhere near the line OF constructive intent. there will ALWAYS be intent, solely because you are asking about it in this thread. (i.e. you'll never be given the benefit of doubt) Quoted:
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Here was a conviction from earlier this year. 30 months in prison for having a pistol with a carbine tube and unattached stock in his possession after being discovered by the cops during a traffic altercation. http://www.ar15.com/forums/t_6_50/458710_SBR_trial_began_today.html http://www.ar15.com/forums/t_1_5/1869992_Arkansas___Man_gets_30_month_sentence_for_possession_of_unregistered_SBR.html again, an add on charge.. but this is a solid illustration of constructive intent. the fact that you're asking about constructive intent illustrates that you can not be anywhere near the line OF constructive intent. there will ALWAYS be intent, solely because you are asking about it in this thread. (i.e. you'll never be given the benefit of doubt) Why do you keep talking about "intent"? The case that was cited above is for POSSESSION. He was not charged with intending to make an unregistered SBR, he was charged with possession of an unregistered SBR. If you have all of the parts to make an SBR and no other legal use for said parts except to assemble an SBR, than you are in possession of an SBR. What you intended to do with said parts is irrelevant. |
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Why do you keep talking about "intent"? The case that was cited above is for POSSESSION. He was not charged with intending to make an unregistered SBR, he was charged with possession of an unregistered SBR. If you have all of the parts to make an SBR and no other legal use for said parts except to assemble an SBR, than you are in possession of an SBR. What you intended to do with said parts is irrelevant. because that's how you move from a pistol with the stock sitting beside it to a SBR. if he didn't have that stock, it would have been a pistol. if he had that stock and it was sitting in a sealed up blister package it wouldn't have been an SBR. intent is when you skirt the line thinking that you're right on a technicality, that is why constructive intent exists, to prevent people from using the "but the stock wasn't attached" defense. it's not unlawful to possess the parts sealed up in their boxes, it's illegal to be able to readily construct the SBR into a functioning rifle. (which is why I said constructive intent).. who else doesn't believe the "i never brandished a weapon" defense by the guy that had a ton of them in his vehicle..? |
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You are incorrect. Constructive possession is the correct term. Constructive intent is a made-up internet/gunshop term. Tony_k already posted the best case law opinion there is on the subject: The court agreed; that if the parts had only one use, to make a SBR, and a person possessed them all that was a SBR also. It doesn't matter if the parts are still in their original packaging or not. What matters is whether it's possible to assemble them in a legal configuration. Any lawful configuration. If that is impossible using the parts you currently possess, then you may be found in constructive possession of a <NFA item>. |
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And once again, for emphasis, you guys need to start using the correct terms, or else you start to sound like the ignorant anti-gun crowd.
Do you keep use magazines or clips to feed your AR15? Do those hold bullets or cartridges? There is no such thing or legal term as constructive intent. Instead, the applicable legal term is "constructive possession," wherein the possession of several items constitutes legal possession of what could be made by assembling them, regardless of any intent to do so. Again, the legal term "contructive possession" means that under the law, intent is irrelevant and does not need to be proved in a court. By owning that combination of items, you are already guilty of possession of the thing which could be assembled, regardless of whether or not you intended to do so. Please, please, please do not use made-up-by-the-antigunners nonexistent terms like "constructive intent." Thank you.
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And once again, for emphasis, you guys need to start using the correct terms, or else you start to sound like the ignorant anti-gun crowd. Do you keep use magazines or clips to feed your AR15? Do those hold bullets or cartridges? There is no such thing or legal term as constructive intent. Instead, the applicable legal term is "constructive possession," wherein the possession of several items constitutes legal possession of what could be made by assembling them, regardless of any intent to do so. Again, the legal term "contructive possession" means that under the law, intent is irrelevant and does not need to be proved in a court. By owning that combination of items, you are already guilty of possession of the thing which could be assembled, regardless of whether or not you intended to do so. Please, please, please do not use made-up-by-the-antigunners nonexistent terms like "constructive intent." Thank you.
Amen, brother. |
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You do not hear of many cases because 97% of all Federal Charges do not make it to trial. A small number are dropped, and the rest quietly take a plea deal. But here is 11CC Case Law of a text book example of "Constructive Possession". He gambled, went to trial lost, and then lost his appeal. http://caselaw.findlaw.com/us-11th-circuit/1211612.html If this case doesn't make every one of us a criminal, I don't know what does. In the case cited, he only had a spare short barreled upper lying around - he didn't even have a spare receiver to attach to the upper. This essentially says I can't have spare short upper lying around - how many of you here not having that? I bet 90% of us have spare pistol grip lying around that can be attached to a pistol with front rail, making the pistol a unregistered AOW. This also applies to everybody who owns an AR15 and AR15 pistol with a tube! |
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For example, the moment I took possession of an short barreled upper, which I was planning to use for an AR15 pistol, I just committed a felony because I owned other ARs. This also applies to everybody who owns an AR15 and AR15 pistol with a tube! UNLESS you have a virgin or pistol lower that it could be pinned to. If you don't have that, THEN you might get screwed. "no other legal use" or somesuch. |
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UNLESS you have a virgin or pistol lower that it could be pinned to. If you don't have that, THEN you might get screwed. "no other legal use" or somesuch. Quoted:
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For example, the moment I took possession of an short barreled upper, which I was planning to use for an AR15 pistol, I just committed a felony because I owned other ARs. This also applies to everybody who owns an AR15 and AR15 pistol with a tube! UNLESS you have a virgin or pistol lower that it could be pinned to. If you don't have that, THEN you might get screwed. "no other legal use" or somesuch. But we all have spare stock that can be attached to your AR15 pistol or spare pistol grips that can be screwed on to your pistols, like a Sig P226R or our AR15 pistol, in less than 5 seconds. |
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But you have spare stock that can be attached to your AR15 pistol and spare pistol grips that can be screwed on to your pistols, like a Sig P226R. Quoted:
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For example, the moment I took possession of an short barreled upper, which I was planning to use for an AR15 pistol, I just committed a felony because I owned other ARs. This also applies to everybody who owns an AR15 and AR15 pistol with a tube! UNLESS you have a virgin or pistol lower that it could be pinned to. If you don't have that, THEN you might get screwed. "no other legal use" or somesuch. But you have spare stock that can be attached to your AR15 pistol and spare pistol grips that can be screwed on to your pistols, like a Sig P226R. But you have a legal use for those. If you have a short upper and no pistol/SBR/virgin lower, you have no legal use for it and they could try to charge you if they wanted to screw with you. I'm not saying it makes sense, the ATF is 'tarded, I'm just saying that's the precedent they've set. |
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But you have a legal use for those. If you have a short upper and no pistol/SBR/virgin lower, you have no legal use for it and they could try to charge you if they wanted to screw with you. I'm not saying it makes sense, the ATF is 'tarded, I'm just saying that's the precedent they've set. Quoted:
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For example, the moment I took possession of an short barreled upper, which I was planning to use for an AR15 pistol, I just committed a felony because I owned other ARs. This also applies to everybody who owns an AR15 and AR15 pistol with a tube! UNLESS you have a virgin or pistol lower that it could be pinned to. If you don't have that, THEN you might get screwed. "no other legal use" or somesuch. But you have spare stock that can be attached to your AR15 pistol and spare pistol grips that can be screwed on to your pistols, like a Sig P226R. But you have a legal use for those. If you have a short upper and no pistol/SBR/virgin lower, you have no legal use for it and they could try to charge you if they wanted to screw with you. I'm not saying it makes sense, the ATF is 'tarded, I'm just saying that's the precedent they've set. What do you mean legal use? A spare is a spare. If I have a spare pistol grip, the only legal use is to screw it on my rifles, which already have a grip. It is ILLEGAL to be in possession of a spare pistol grip and a pistol with front rail if I read the case right. |
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What do you mean legal use? A spare is a spare. If I have a spare pistol grip, the only legal use is to screw it on my rifles, which already have a grip. It is ILLEGAL to be in possession of a spare pistol grip and a pistol with front rail if I read the case right. Quoted:
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For example, the moment I took possession of an short barreled upper, which I was planning to use for an AR15 pistol, I just committed a felony because I owned other ARs. This also applies to everybody who owns an AR15 and AR15 pistol with a tube! UNLESS you have a virgin or pistol lower that it could be pinned to. If you don't have that, THEN you might get screwed. "no other legal use" or somesuch. But you have spare stock that can be attached to your AR15 pistol and spare pistol grips that can be screwed on to your pistols, like a Sig P226R. But you have a legal use for those. If you have a short upper and no pistol/SBR/virgin lower, you have no legal use for it and they could try to charge you if they wanted to screw with you. I'm not saying it makes sense, the ATF is 'tarded, I'm just saying that's the precedent they've set. What do you mean legal use? A spare is a spare. If I have a spare pistol grip, the only legal use is to screw it on my rifles, which already have a grip. It is ILLEGAL to be in possession of a spare pistol grip and a pistol with front rail if I read the case right. You're not reading the case right... If you've got all the stuff to put together an SBR stuffed in the same bag, they can try to charge you. It's stupid, but that's how it goes. When I say "legal use" i'm using the ATF terminology. Basically if everything you can do with it would be illegal given what you have in hand, then there is no legal use for it. Like having AR rifles and a short "spare" upper with no dedicated pistol, virgin stripped, or SBR lower. You can own M16 fire controls only if you don't also own an AR-15 (unless you have a registered MG) |
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You're not reading the case right... If you've got all the stuff to put together an SBR stuffed in the same bag, they can try to charge you. It's stupid, but that's how it goes. When I say "legal use" i'm using the ATF terminology. Basically if anything you do with it would be illegal, then there is no legal use for it. Like having AR rifles and a short "spare" upper with no dedicated pistol, virgin stripped, or SBR lower. I think I understand the case. In my example, if I have a spare pistol grip, and a P226R, is that legal? |
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I think I understand the case. In my example, if I have a spare pistol grip, and a P226R, is that legal? Quoted:
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You're not reading the case right... If you've got all the stuff to put together an SBR stuffed in the same bag, they can try to charge you. It's stupid, but that's how it goes. When I say "legal use" i'm using the ATF terminology. Basically if anything you do with it would be illegal, then there is no legal use for it. Like having AR rifles and a short "spare" upper with no dedicated pistol, virgin stripped, or SBR lower. I think I understand the case. In my example, if I have a spare pistol grip, and a P226R, is that legal? Do you have a rifle that you could use the grip on? (regardless of whether or not there is already a grip on it). Was the forward grip you have specifically designed to work with handgun rails? ("design intent" is big with the ATF) Do you intend to use said forward grip on your Sig? ("intent" again... I think they have autistic psychics working in their legal office.) A better example would be if you owned a glock and one of those MAKO glock stocks that snaps into the grip. If you didn't have a stamp for a SBR Glock, they could try to hook you up on "constructive possession" because there is nothing you could legally do with the Glock stock. |
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If this case doesn't make every one of us a criminal, I don't know what does. In the case cited, he only had a spare short barreled upper lying around - he didn't even have a spare receiver to attach to the upper. This essentially says I can't have spare short upper lying around - how many of you here not having that? I bet 90% of us have spare pistol grip lying around that can be attached to a pistol with front rail, making the pistol a unregistered AOW. This also applies to everybody who owns an AR15 and AR15 pistol with a tube! Quoted:
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You do not hear of many cases because 97% of all Federal Charges do not make it to trial. A small number are dropped, and the rest quietly take a plea deal. But here is 11CC Case Law of a text book example of "Constructive Possession". He gambled, went to trial lost, and then lost his appeal. http://caselaw.findlaw.com/us-11th-circuit/1211612.html If this case doesn't make every one of us a criminal, I don't know what does. In the case cited, he only had a spare short barreled upper lying around - he didn't even have a spare receiver to attach to the upper. This essentially says I can't have spare short upper lying around - how many of you here not having that? I bet 90% of us have spare pistol grip lying around that can be attached to a pistol with front rail, making the pistol a unregistered AOW. This also applies to everybody who owns an AR15 and AR15 pistol with a tube! If you read through the case you will see that they cite the Thompson-Center case as reasoning to convict Kent. Similar to as discussed above and what was essentially stated in Thompson, you need to have a legal use for each component you possess. This generically applies to stocks or vertical grips that fit pistols you own, short barrels that fit rifles you own, machinegun parts that could be installed into semi-auto firearms you own, etc. In the case of Kent he owned an SP1 AR15 rifle and a short upper. There was no legal use for the short upper short of his claim for spare parts. If he owned an AR15 pistol receiver than the outcome for the SBR charge would have most likely been different. The court concluded that the short upper he owned had no other ostensible purpose aside from making a unregistered SBR. This is the section that burned him. “In addition, there was no other lower receiver unit found in Kent's apartment to which the short-barreled upper receiver unit could be attached and used to create a legal weapon for purposes of the NFA. Moreover, Kent has never contended that there was a pistol grip or any other piece that he could use to make a legal weapon from this short-barreled upper receiver unit. Indeed, it would not be possible to combine the short-barreled upper receiver unit with any kind of lower chamber or lower receiver unit, such as a pistol grip, to create a weapon that would not be a “firearm” for purposes of the NFA” If you submit a F1 for a SBR, own AR15 rifles, and don’t own any AR15 pistols, than don’t take possession of a short upper until your stamp comes back. (or go buy a pistol lower to store it on during the wait) The current case law gray area in my opinion is if you have a legal use for each component you own, but own more components than you have simultaneous legal homes/uses for them. This would be the classic example of somebody who owns one registered SBR or MG receiver, a bunch of normal AR rifles, but have half a dozen short uppers or the HK Sear owner who has one sear, 6 pistol hosts, and stocks that legally fit all of them but can only install the sear in one host at a time. ATF guidance in historical opinion letters is to not own more components that you have simultaneous legal homes for. That said I am not personally aware of anybody who has been convicted under those circumstances. (i.e. a legal home but not simultaneous legal homes for each component). Much to my chagrin, my personal crystal ball leans toward it just being a matter of time before somebody gets convicted under these circumstances given how much more common AR pistols, SBRs, and owning multiple short uppers has become. |
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OK, I apologize, I kept typing "intent" and was thinking "possession".
if you replace constructive intent with constructive possession in my posts, it's the same end result. for the ATF, constructive possession IS intent. if those parts are sitting in their boxes, unopened, while you're waiting for your stamp, you're not going to get charged for constructive possession. |
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If you read through the case you will see that they cite the Thompson-Center case as reasoning to convict Kent. Similar to as discussed above and what was essentially stated in Thompson, you need to have a legal use for each component you possess. This generically applies to stocks or vertical grips that fit pistols you own, short barrels that fit rifles you own, machinegun parts that could be installed into semi-auto firearms you own, etc. In the case of Kent he owned an SP1 AR15 rifle and a short upper. There was no legal use for the short upper short of his claim for spare parts. If he owned an AR15 pistol receiver than the outcome for the SBR charge would have most likely been different. The court concluded that the short upper he owned had no other ostensible purpose aside from making a unregistered SBR. This is the section that burned him. “In addition, there was no other lower receiver unit found in Kent's apartment to which the short-barreled upper receiver unit could be attached and used to create a legal weapon for purposes of the NFA. Moreover, Kent has never contended that there was a pistol grip or any other piece that he could use to make a legal weapon from this short-barreled upper receiver unit. Indeed, it would not be possible to combine the short-barreled upper receiver unit with any kind of lower chamber or lower receiver unit, such as a pistol grip, to create a weapon that would not be a “firearm” for purposes of the NFA” If you submit a F1 for a SBR, own AR15 rifles, and don’t own any AR15 pistols, than don’t take possession of a short upper until your stamp comes back. (or go buy a pistol lower to store it on during the wait) The current case law gray area in my opinion is if you have a legal use for each component you own, but own more components than you have simultaneous legal homes/uses for them. This would be the classic example of somebody who owns one registered SBR or MG receiver, a bunch of normal AR rifles, but have half a dozen short uppers or the HK Sear owner who has one sear, 6 pistol hosts, and stocks that legally fit all of them but can only install the sear in one host at a time. ATF guidance in historical opinion letters is to not own more components that you have simultaneous legal homes for. That said I am not personally aware of anybody who has been convicted under those circumstances. (i.e. a legal home but not simultaneous legal homes for each component). Much to my chagrin, my personal crystal ball leans toward it just being a matter of time before somebody gets convicted under these circumstances given how much more common AR pistols, SBRs, and owning multiple short uppers has become. Well explained!!! “In addition, there was no other lower receiver unit found in Kent's apartment to which the short-barreled upper receiver unit could be attached and used to create a legal weapon for purposes of the NFA. Moreover, Kent has never contended that there was a pistol grip or any other piece that he could use to make a legal weapon from this short-barreled upper receiver unit. Indeed, it would not be possible to combine the short-barreled upper receiver unit with any kind of lower chamber or lower receiver unit, such as a pistol grip, to create a weapon that would not be a “firearm” for purposes of the NFA” This line seems to stand out. If Kent contended that he wanted to make a pistol out of the upper, would you think it would make the outcome different? |
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Let's say I own a complete 16" AR and an 8.5" AR pistol. If I buy a new stock to exchange the one on my rifle and I don't get rid of the old stock, am I technically in possession of an unregistered SBR due to constructive possession?
ETA I know this has already been discussed in this thread, but it seems there is a lot of going back and forth on it. Maybe there is no way to know until someone gets popped under similar circumstances and goes to court? |
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Let's say I own a complete 16" AR and an 8.5" AR pistol. If I buy a new stock to exchange the one on my rifle and I don't get rid of the old stock, am I technically in possession of an unregistered SBR due to constructive possession? Not really because you can't easily switch the stock. In the case cited, one can switch a lower in 30 seconds or less. It takes a lot longer to switch the stock. Now, I'd argue if you own another vertical fore-grip as a spare, you would be in possession of a unregistered AOW because you can easily attach it to your AR pistol, making it an AOW. |
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Not really because you can't easily switch the stock. In the case cited, one can switch a lower in 30 seconds or less. It takes a lot longer to switch the stock. Now, I'd argue if you own another vertical fore-grip as a spare, you would be in possession of a unregistered AOW because you can easily attach it to your AR pistol, making it an AOW. Quoted:
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Let's say I own a complete 16" AR and an 8.5" AR pistol. If I buy a new stock to exchange the one on my rifle and I don't get rid of the old stock, am I technically in possession of an unregistered SBR due to constructive possession? Not really because you can't easily switch the stock. In the case cited, one can switch a lower in 30 seconds or less. It takes a lot longer to switch the stock. Now, I'd argue if you own another vertical fore-grip as a spare, you would be in possession of a unregistered AOW because you can easily attach it to your AR pistol, making it an AOW. Wow. That's f'd up for sure. |
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Wow. That's f'd up for sure. Quoted:
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Let's say I own a complete 16" AR and an 8.5" AR pistol. If I buy a new stock to exchange the one on my rifle and I don't get rid of the old stock, am I technically in possession of an unregistered SBR due to constructive possession? Not really because you can't easily switch the stock. In the case cited, one can switch a lower in 30 seconds or less. It takes a lot longer to switch the stock. Now, I'd argue if you own another vertical fore-grip as a spare, you would be in possession of a unregistered AOW because you can easily attach it to your AR pistol, making it an AOW. Wow. That's f'd up for sure. But that's just my stupid opinion. When it goes to court, it would come down to as what is reasonable. In the case cited, I can't see the argument of having a short barreled upper as "spare part" could stand because the most important component, the barrel, wouldn't be a spare for anything but an SBR. Personally, I can see the point the court made. When you own a registered SBR and multiple uppers and some regular AR15s, the argument of spare parts has much more ground. Even if I own regular ARs and an AR15 pistol, I can certainly have multiple short barreled uppers as spares. It makes sense. If my pistol barrel blows up, I can switch them out quickly. It's reasonable. Similarly you can argue your extra vertical forgrips are spares because things do break. I don't know how you can say your one and only vertical foregrip as spare part when you don't own any rifle or any rifle that would accept the foregrip easily and your P226R would readily accept it. But again, just my stupid opinion and pun intended. |
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This line seems to stand out. If Kent contended that he wanted to make a pistol out of the upper, would you think it would make the outcome different? In that case I doubt it as he had no proof to back up that claim and this was just one of a myriad of charges against him. If this was some squeaky clean citizen who got popped in a gun show parking lot because he bought a new AR rifle and a short upper for the existing AR15 pistol lower he had at home the odds would be more in favor. Probably still an expensive/risky/time consuming proposition for Joe citizen in that case, even if he did ultimately prevail. Judges and juries are a fickle bunch and the proper outcome is never guaranteed, so it best not to needlessly test the judicial waters over a $200 expense. Its always been my opinion not to explore around in the gray area of "potential" NFA violations where you fate is in the hands of judges and juries, some of which may not be able to even spell the word "firearm" much less understand NFA firearm law and the mechanical intricacies of the AR15 family of firearms. NFA stamps are cheap in comparison to the judicial process alternative. I could probably purchase 50 NFA stamps for what just the monetary and time cost would be for being incorrectly arrested, having the charges dropped, getting any seized firearms back, and ultimately getting the firearm related arrest expunged off my record. Be forced to go the distance in a jury trial against the government with hours of testimony, expert witnesses, specialized criminal attorneys, etc. where a loss means a couple years in jail and be branded a felon for life. I could see an easy $50,000+ expense and a couple years off your life and/or a divorce from the stress. |
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In that case I doubt it as he had no proof to back up that claim and this was just one of a myriad of charges against him. If this was some squeaky clean citizen who got popped in a gun show parking lot because he bought a new AR rifle and a short upper for the existing AR15 pistol lower he had at home the odds would be more in favor. Probably still an expensive/risky/time consuming proposition for Joe citizen in that case, even if he did ultimately prevail. Judges and juries are a fickle bunch and the proper outcome is never guaranteed, so it best not to needlessly test the judicial waters over a $200 expense. Its always been my opinion not to explore around in the gray area of "potential" NFA violations where you fate is in the hands of judges and juries, some of which may not be able to even spell the word "firearm" much less understand NFA firearm law and the mechanical intricacies of the AR15 family of firearms. NFA stamps are cheap in comparison to the judicial process alternative. I could probably purchase 50 NFA stamps for what just the monetary and time cost would be for being incorrectly arrested, having the charges dropped, getting any seized firearms back, and ultimately getting the firearm related arrest expunged off my record. Be forced to go the distance in a jury trial against the government with hours of testimony, expert witnesses, specialized criminal attorneys, etc. where a loss means a couple years in jail and be branded a felon for life. I could see an easy $50,000+ expense and a couple years off your life and/or a divorce from the stress. Quoted:
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This line seems to stand out. If Kent contended that he wanted to make a pistol out of the upper, would you think it would make the outcome different? In that case I doubt it as he had no proof to back up that claim and this was just one of a myriad of charges against him. If this was some squeaky clean citizen who got popped in a gun show parking lot because he bought a new AR rifle and a short upper for the existing AR15 pistol lower he had at home the odds would be more in favor. Probably still an expensive/risky/time consuming proposition for Joe citizen in that case, even if he did ultimately prevail. Judges and juries are a fickle bunch and the proper outcome is never guaranteed, so it best not to needlessly test the judicial waters over a $200 expense. Its always been my opinion not to explore around in the gray area of "potential" NFA violations where you fate is in the hands of judges and juries, some of which may not be able to even spell the word "firearm" much less understand NFA firearm law and the mechanical intricacies of the AR15 family of firearms. NFA stamps are cheap in comparison to the judicial process alternative. I could probably purchase 50 NFA stamps for what just the monetary and time cost would be for being incorrectly arrested, having the charges dropped, getting any seized firearms back, and ultimately getting the firearm related arrest expunged off my record. Be forced to go the distance in a jury trial against the government with hours of testimony, expert witnesses, specialized criminal attorneys, etc. where a loss means a couple years in jail and be branded a felon for life. I could see an easy $50,000+ expense and a couple years off your life and/or a divorce from the stress. I agree with you on the approach. The problem comes, let's say I own 3 regular AR, 1 SBR and 4 additional short-barreled uppers. Would I have to register all 3 regular ARs as SBR now or should I just sell the 4 uppers? |
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Further reading actually gets more interesting.
In United States v. Thompson/Center Arms, it's clear that merely possessing parts is not a crime - it comes down to intent. If the parts have no other purposes but to be assembled into a SBR/AOW, then you are in possession of an unregistered NFA firearm as show in Ziedman's case: "Indeed, the stock had no other ostensible purpose aside from converting the pistol to a 'firearm.'" Ziedman was caught with a pistol and a rifle stock, which could only be used on the pistol, kept separate in his home; however, in Thompson case, one could conceivably convert the parts into either a rifle, a pistol or an SBR. Since there are three possible outcomes, the court ruled the constructive possession didn't exist. In United States v. Owens, The government "proved" that Owens assembled the parts in front of the ATF agent before the arrest rather than just in possession of them. It's he said v.s. she said but who's going to believe Owens? "... 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.” 26 U.S.C.A. § 5845(a)(3). Thus, Owens possessed the weapon assembled with the seven-inch barrel." In United States v. Kent, Kent was caught with a complete short barreled upper. I can see the argument from the government. "The Government also introduced evidence that the upper receiver unit was a complete, intact unit that included not just a barrel, but also a flash suppressor, forward and rear sights, a scope with batteries to activate the light in the scope, a gas tube, a handguard assembly, and a sling ready to be attached to a lower receiver unit." Clear as mud! |
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I agree with you on the approach. The problem comes, let's say I own 3 regular AR, 1 SBR and 4 additional short-barreled uppers. Would I have to register all 3 regular ARs as SBR now or should I just sell the 4 uppers? Depends on your risk tolerance and how deep your pockets go. To be 100% unequivocally in the legal clear, you have the following options. 1. Sell the additional short barrel uppers 2. Sell all of the regular ARs but keep the SBR receiver and uppers. 3. Register all of the AR lowers as SBRs. 4. Purchase 4 AR pistol lowers to store the extra short uppers on so they have a permanent legal use/home. Of the last two options you can probably buy a blem or poly lower, a pistol grip, front and rear takedown pins, and a pistol buffer tube for under $100. For $200 each you can register your ARs as SBRs. In this theoretical test case, if you decided not to go this route, it would be my opinion not to take a collection of parts out of your home that could put you in a compromising position during an LE encounter, like the guy from Arkansas did. So don't take one of your ARs rifle lowers out along with your SBR receiver and four shorty uppers and then find out how quick Mr. LE figures out how to snap one of the short uppers on your non-SBR lower. For the average Joe, the barrier to entry for LE is much higher to search your home vs. when you are out in public at the range or in your car. So the odds are more stacked in your favor if you keep the extra incriminating bits locked in your home, although even that isn't a 100.00% gurantee. Now if you have other personal circumstances that may draw attention to yourself and could get caught up in an unrelated search warrant of your home. (i.e. you have a vengeful ex, smoke dope, embezzled money from your former employer, etc.) Its probably wise to have any items even in your home that could be used to put you in prison for up to a decade on top of whatever charges brought the search warrant down in the first place. Personally I just keep as many or more Machinegun receivers + Registerd Sears + SBRs receivers than I have short uppers (or stocks in the case of short barrel HK hosts) |
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Depends on your risk tolerance and how deep your pockets go. To be 100% unequivocally in the legal clear, you have the following options. 1. Sell the additional short barrel uppers 2. Sell all of the regular ARs but keep the SBR receiver and uppers. 3. Register all of the AR lowers as SBRs. 4. Purchase 4 AR pistol lowers to store the extra short uppers on so they have a permanent legal use/home. Of the last two options you can probably buy a blem or poly lower, a pistol grip, front and rear takedown pins, and a pistol buffer tube for under $100. For $200 each you can register your ARs as SBRs. Personally I just keep as many or more Machinegun receivers + Registerd Sears + SBRs receivers than I have short uppers (or stocks in the case of short barrel HK hosts) Quoted:
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I agree with you on the approach. The problem comes, let's say I own 3 regular AR, 1 SBR and 4 additional short-barreled uppers. Would I have to register all 3 regular ARs as SBR now or should I just sell the 4 uppers? Depends on your risk tolerance and how deep your pockets go. To be 100% unequivocally in the legal clear, you have the following options. 1. Sell the additional short barrel uppers 2. Sell all of the regular ARs but keep the SBR receiver and uppers. 3. Register all of the AR lowers as SBRs. 4. Purchase 4 AR pistol lowers to store the extra short uppers on so they have a permanent legal use/home. Of the last two options you can probably buy a blem or poly lower, a pistol grip, front and rear takedown pins, and a pistol buffer tube for under $100. For $200 each you can register your ARs as SBRs. Personally I just keep as many or more Machinegun receivers + Registerd Sears + SBRs receivers than I have short uppers (or stocks in the case of short barrel HK hosts) I would agree. Personally, I'd probably take the #4 route and register only the SBRs that I actually use. Registering all them as SBRs would prevent them from being re-sold. From reading the spirit of the law, here's what I gathered: 1. We can't have parts, once assembled, the only outcome is the illegal one. As long as there are legal alternatives, it seems to be fine. For example: a. Thompson case, there could be three outcomes with their part package: a pistol, a rifle and an SBR. They were off hook because only one of the outcomes was illegal. b. In Ziedman case, the only outcome of his pistol and stock, even kept separately, was an illegal SBR. So he's convicted. c. In Kent case, same deal - no legal outcome from his "part". So he's convicted. 2. Spare parts are spare parts. A fully assembled upper with mounted scope and sights sitting along side of a regular AR is not spare but an SBR ready to go. The upper should be at least disassembled and stripped, and it would help to have a pistol tube/lower so that they can be put together as a pistol. Another example is having only a vertical foregrip and a Sig P226R but no rifles would be construed as owning an AOW. 3. The speed of assembling does come into consideration. What's reasonable? I don't know. Personally, if the parts can be assembled within 5 min, I'd say it's "easily converted," but the court may have some different opinions. As Kent case showed, the government demonstrated that he could put together an SBR in less than 30 seconds. 4. Obey the law, exercise your 5th Amendment right and learn to keep your mouth shut. 5. Don't commit crime in front of any witness. |
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Quoted: So sounds like every M16 owner is due a visit because I can guarantee most have more "shorty" uppers than they have in SBRd AR lowers... Those spare parts have a lawful use, and that use is for their MG. Now if they sell all their M16's, and do not own any registered SBR/AOW AR's, nor AR pistols, nor stripped virgin lowers... THEN there could potentially be a constructive possession situation. Got it?? |
[ARCHIVED THREAD] - Constructive Possession? (Page 1 of 2)
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