Short uppers in safe with non SBR'd lowers

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rjacobs
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Short uppers in safe with non SBR'd lowers

Post by rjacobs » Mon Jan 06, 2014 12:20 am

There is a guy on another forum who is claiming that an ATF NFA specialist(never heard of this myself) NOT an examiner has told him this:

You have a registered SBR lower
You have multiple uppers for said SBR lower(legal)
You have several built Title 1(non-SBR) lowers

If you DO NOT have a Title 1(i.e. 16") upper installed on your built Title 1 lowers that you are violating the law and the ATF would come after you for constructive intent to build illegal SBR's on said lowers.

I called bull s--t.

I have a few built lowers in my safe with no upper on them at all(and I dont own any currently to even put on them) along with a quite a few stripped lowers. I have several short uppers in my safe not installed on any lower(which will ONLY go on my SBR lower). I have a registered SBR. In this guys opinion(and from what he claims to have been told) the ATF would come after me for constructive intent.

What say you guys with more experience with this?

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Re: Short uppers in safe with non SBR'd lowers

Post by IAC533 » Mon Jan 06, 2014 12:53 am

Knock,knock...
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Re: Short uppers in safe with non SBR'd lowers

Post by Bendersquint » Mon Jan 06, 2014 1:08 am

If you have complete Title1 lowers without uppers and extra Title2 uppers you are asking for problems.

They won't come after you specifically for constructive intent, it would be used as icing on the cake of other charges.

That said, if you know it is wrong why would you do it?

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Re: Short uppers in safe with non SBR'd lowers

Post by rjacobs » Mon Jan 06, 2014 1:42 am

Bendersquint wrote:If you have complete Title1 lowers without uppers and extra Title2 uppers you are asking for problems.

They won't come after you specifically for constructive intent, it would be used as icing on the cake of other charges.

That said, if you know it is wrong why would you do it?
I personally dont/didnt think it was wrong/illegal and never really put much thought into it and dont see any law specifically stating this to be illegal.

Thats interesting that it COULD pose a potential problem however remote.

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Re: Short uppers in safe with non SBR'd lowers

Post by raymond- » Mon Jan 06, 2014 2:15 am

you're not going to find a codefied law prohibiting this but firearms
case law is replete with convictions which says this is verboten.

technically, even if you store it apart, off-site, it'll still come down to
the devil in the details when it comes to the constructive possession
litmus test.

let's say , for example, you stored it at mom's house and you have the
key. or, you park a SBR upper to an AR at a neighbor's house which
you are a caretaker (while you store the lower at your house).

you have power and dominion over those two separated locations and
thus, has been legally defined as possession.

quit poking the bear....especially in a public forum. unlikely but if
you're ever in a position where LEO is looking for something to add
to something like domestic violence, drug bust, etc. why make it
easy for them to add counts to an indictment?
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Re: Short uppers in safe with non SBR'd lowers

Post by wacki » Mon Jan 06, 2014 4:28 am

Interesting. A moderator over at TheHighRoad.org told me I lost a lot of credibility when I said its wise to get a multiple stamps if you have multiple short uppers. The moderator said nobody does that and my position was costing me credibility.

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Re: Short uppers in safe with non SBR'd lowers

Post by wacki » Mon Jan 06, 2014 4:30 am

raymond- wrote:you're not going to find a codefied law prohibiting this but firearms
case law is replete with convictions which says this is verboten.
Got case citations? I'm very interested in hard evidence.

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My take on the LBR/SBR mix

Post by O2HeN2 » Mon Jan 06, 2014 12:36 pm

I'm not a lawyer and I don't play one on TV. That said, here's my advice (for the federal level at least):

If the number of SBR uppers possessed is less than or equal to the number of SBR or pistol lowers possessed, you're good to go no matter what else you have.

If the number of SBR uppers possessed is GREATER than the number of SBR or pistol lowers possessed, then the following applies:

The number of LBR uppers possessed must be greater than or equal to the number of LBR lowers possessed. For my own comfort level I like to have every LBR lower mated to an LBR upper at all times -- but that's just me.

If you don't possess a SBR or pistol lower, you better not possess ANY SBR upper unless you DON'T OWN any lowers that it can be mated to.

So given your statement that you have more LBR lowers than LBR uppers and you have more SBR uppers than SBR (or pistol) lowers, yhea, IMO you're in potential trouble.

The short form: There is no way to put together all your uppers and lowers together at one moment in time in such a way that they're ALL legal. You need to be able to assemble ALL your possessed parts in legal configurations.

So either buy pistol tubes for your lowers (assuming they haven't been rifles in the past), have a friend without any lowers hold onto your SBR uppers or build LBR uppers for all your lowers.

Feel free to shoot holes in my advice -- if it's wrong I'd like to know now rather than thinking about it in jail!

O2

Ps. Yhea, no such thing as an “LBR” but you understand what I’m saying and that’s all that matters. :)
Last edited by O2HeN2 on Mon Jan 06, 2014 7:06 pm, edited 2 times in total.
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Re: My take on the LBR/SBR mix

Post by Bendersquint » Mon Jan 06, 2014 1:08 pm

O2HeN2 wrote:I'm not a lawyer and I don't play one on TV. That said, here's my advice (for the federal level at least):

If the number of SBR uppers possessed is less than or equal to the number of SBR or pistol lowers possessed, you're good to go no matter what else you have.

If the number of SBR uppers possessed is GREATER than the number of SBR or pistol lowers possessed, then the following applies:

The number of LBR uppers possessed must be greater than or equal to the number of LBR lowers possessed. For my own comfort level I like to have every LBR lower mated to an LBR lower at all times -- but that's just me.

If you don't possess a SBR or pistol lower, you better not possess ANY SBR upper unless you DON'T OWN any lowers that it can be mated to.

So given your statement that you have more LBR lowers than LBR uppers and you have more SBR uppers than SBR (or pistol) lowers, yhea, IMO you're in potential trouble.

Feel free to shoot holes in my advice -- if it's wrong I'd like to know now rather than thinking about it in jail!

O2

Ps. Yhea, no such thing as an “LBR” but you understand what I’m saying and that’s all that matters. :)
Solid advice that I have been given and give.

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Re: Short uppers in safe with non SBR'd lowers

Post by Baffled » Mon Jan 06, 2014 2:47 pm

Oh for &^[email protected] sake. Everyone needs to stop overthinking this. I have a full machine shop with enough raw material to produce a Ma Deuce. Constructive intent?

If an owner can put together the components he has into a legal configuration, then he is good to go.

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Re: Short uppers in safe with non SBR'd lowers

Post by raymond- » Mon Jan 06, 2014 4:44 pm

wacki wrote:
raymond- wrote:you're not going to find a codefied law prohibiting this but firearms
case law is replete with convictions which says this is verboten.
Got case citations? I'm very interested in hard evidence.
Don't know if you're familiar with James Bardwell, NFA fan and now in (I believe) private practice.
He had compiled tens of thousands of pages of firarms info, including case citations, Tech Branch
letters to individuals, etc and hosted them on his university account. Years later, when his account
was closed, another person at Subguns.com sought to host the wealth of information.

I had spent some time reading through them after heart bypass. Heck, i wasn't doing anything else
at that time. :)

If you can find them, it's an incredible resource and effort made to pull together lots of NFA
cases. Too bad we're not in a position to maintain this. It's likely that Bardwell Shepherdized
them, uses LEXUS law database, etc....as well as asked folks on Subguns to send in redacted
copies of their Tech Branch letters. All told, a great trove of Title 2 info.

i may have some of the files archived on my server and can look. maybe burn them on CD for you

[email protected] raymond-
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Re: Short uppers in safe with non SBR'd lowers

Post by O2HeN2 » Mon Jan 06, 2014 7:04 pm

Baffled wrote:Oh for &^[email protected] sake. Everyone needs to stop overthinking this. I have a full machine shop with enough raw material to produce a Ma Deuce. Constructive intent?

If an owner can put together the components he has into a legal configuration, then he is good to go.
I almost agree with your last sentence. If it said "If an owner can put together ALL the components he has into a legal configurationS, then he is good to go."

Hmmm, even that has some ambiguity, but it's closer.

Don't care about raw material. The way I read the original poster's description, once he mates all his SBR uppers with SBR/pistol lowers and mates all his LBR uppers with his LBR lowers, he still has some SBR uppers and LBR lowers which can be assembled, but not legally. As Adam Savage likes to say "Now THERE'S your problem!"

O2
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Re: Short uppers in safe with non SBR'd lowers

Post by raymond- » Mon Jan 06, 2014 8:50 pm

Baffled wrote:Oh for &^[email protected] sake. Everyone needs to stop overthinking this. I have a full machine shop with enough raw material to produce a Ma Deuce. Constructive intent?

If an owner can put together the components he has into a legal configuration, then he is good to go.
...and I have all the chemicals necessary to make a bomb in my kitchen. but that isn't what is
at issue here. it has to do with the past practice on part of the govt when determining indictments
for upper/lower possession. it also comes down to rationalizing intent, ability and ease of construction.
raymond-
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Re: Short uppers in safe with non SBR'd lowers

Post by renegade » Mon Jan 06, 2014 9:21 pm

ATF agent is correct and there is Case Law upholding convictions like this.

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Re: Short uppers in safe with non SBR'd lowers

Post by renegade » Mon Jan 06, 2014 9:25 pm

Baffled wrote:If an owner can put together the components he has into a legal configuration, then he is good to go.

Correct. Explain how these components can be put into a legal configuration:

You have a registered SBR lower
You have multiple uppers for said SBR lower(legal)
You have several built Title 1(non-SBR) lowers


They can't, thus it is illegal.

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Re: My take on the LBR/SBR mix

Post by continuity » Tue Jan 07, 2014 3:14 am

O2HeN2 wrote:I'm not a lawyer and I don't play one on TV. That said, here's my advice (for the federal level at least):

If the number of SBR uppers possessed is less than or equal to the number of SBR or pistol lowers possessed, you're good to go no matter what else you have.

If the number of SBR uppers possessed is GREATER than the number of SBR or pistol lowers possessed, then the following applies:

The number of LBR uppers possessed must be greater than or equal to the number of LBR lowers possessed. For my own comfort level I like to have every LBR lower mated to an LBR upper at all times -- but that's just me.

If you don't possess a SBR or pistol lower, you better not possess ANY SBR upper unless you DON'T OWN any lowers that it can be mated to.

So given your statement that you have more LBR lowers than LBR uppers and you have more SBR uppers than SBR (or pistol) lowers, yhea, IMO you're in potential trouble.

The short form: There is no way to put together all your uppers and lowers together at one moment in time in such a way that they're ALL legal. You need to be able to assemble ALL your possessed parts in legal configurations.

So either buy pistol tubes for your lowers (assuming they haven't been rifles in the past), have a friend without any lowers hold onto your SBR uppers or build LBR uppers for all your lowers.

Feel free to shoot holes in my advice -- if it's wrong I'd like to know now rather than thinking about it in jail!

O2

Ps. Yhea, no such thing as an “LBR” but you understand what I’m saying and that’s all that matters. :)
This is how I undersand things.
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Re: Short uppers in safe with non SBR'd lowers

Post by Baffled » Tue Jan 07, 2014 12:32 pm

renegade wrote:
Baffled wrote:If an owner can put together the components he has into a legal configuration, then he is good to go.

Correct. Explain how these components can be put into a legal configuration:

You have a registered SBR lower
You have multiple uppers for said SBR lower(legal)
You have several built Title 1(non-SBR) lowers


They can't, thus it is illegal.
You claim that one must use ALL of the parts?

I have a registered DIAS, more than one set of full auto M-16 parts, and more than one shortie upper. Simply owning that little piece of metal does not mean I have to get rid of all my semi-auto AR's.

Where people get in trouble is having components that CANNOT be assembled legally. I am not going to have shortie uppers on hand without either a MG lower or an SBR. I am not going to have M-16 FCG parts without a sear, or a registered lower.

But I AM allowed to have an SBR lower, 2 shortie uppers, and a title 1 AR. Just cannot assemble an unregistered SBR using those components.

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Re: Short uppers in safe with non SBR'd lowers

Post by renegade » Tue Jan 07, 2014 1:18 pm

Baffled wrote:
renegade wrote:
Baffled wrote:If an owner can put together the components he has into a legal configuration, then he is good to go.

Correct. Explain how these components can be put into a legal configuration:

You have a registered SBR lower
You have multiple uppers for said SBR lower(legal)
You have several built Title 1(non-SBR) lowers


They can't, thus it is illegal.
You claim that one must use ALL of the parts?
They must have a way to be legally assembled. See O2HeN2 post above for a more detailed explanation. The parts above result in at least one unregistered SBR.

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Re: Short uppers in safe with non SBR'd lowers

Post by mojo » Tue Jan 07, 2014 1:58 pm

Baffled wrote: But I AM allowed to have an SBR lower, 2 shortie uppers, and a title 1 AR. Just cannot assemble an unregistered SBR using those components.
I don't think anyone is arguing that. The issue is around something like this:

1 SBR lower, 2 shortie uppers, 2 title 1 lowers, 1 title upper.

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Re: Short uppers in safe with non SBR'd lowers

Post by telero » Tue Jan 07, 2014 3:32 pm

So the wording from the ATF T/C ruling is:

http://www.atf.gov/files/regulations-ru ... 2011-4.pdf
...a firearm, as defined by the National Firearms Act (NFA), 26 U.S.C.
5845(a)(3), is made when unassembled parts are placed in close proximity in such a way
that they:

(a) Serve no useful purpose other than to make a rifle having a barrel or barrels of
less than 16 inches in length (e.g., a receiver, an attachable shoulder stock, and
barrel of less than 16 inches in length); or

(b) Convert a complete weapon into such an NFA firearm...
I believe it's worded that way since that's how the court said it.

Unless they have come up with a new ruling since then, the important part looks like what I bolded...that the parts would serve no other useful purpose than to make an unregistered SBR. As long you have one SBR lower, it shouldn't matter how many SBR uppers you have...regardless of how many Title 1 lowers and 16"+ uppers you have.

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Re: Short uppers in safe with non SBR'd lowers

Post by twodollarbill » Tue Jan 07, 2014 6:05 pm

Take the barrels off the uppers. 8)

You should only need spare barrels anyway....not complete uppers. :lol:

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Re: Short uppers in safe with non SBR'd lowers

Post by telero » Tue Jan 07, 2014 8:41 pm

twodollarbill wrote:Take the barrels off the uppers. 8)

You should only need spare barrels anyway....not complete uppers. :lol:
But what if you got a ridiculously good deal on some short barreled complete uppers? Like less than the cost of a barrel for a complete upper...and you bought like 15 of them because you know you'll shoot the barrel out of each of them and it is easier to swap uppers than barrels :wink:

Or what if you have a 7" upper, 11" upper, 14" upper, and a 9mm upper, and...the list goes on.

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Re: Short uppers in safe with non SBR'd lowers

Post by Baffled » Thu Jan 09, 2014 1:57 pm

A pallet of shortie uppers is 300 lb of gun parts, not one of which is considered a firearm. Anyone is allowed to have as many of these as they want. They are not tracked by the ATF. No difference between a pallet of short uppers, and a pallet of plastic telescoping buttstocks.

Owning this pallet of uppers does NOT mean I cannot have a title 1 AR. The uppers are nothing but PARTS.

Let's take it a step further... let's say I have a complete title1 AR, an SBR lower, ONE complete short upper, and in the back of my shop is a 10" barrel, nothing else. Just a short barrel. Some guys here would claim "Oh no! Constructive possession!" I'm sorry, that's BS.

Same deal with M-16 FC parts. They are NOT restricted items, never have been. I think it was SARCO that used to sell torch-cut M-16A1 kits. They had everything (including the auto sear) except the lower receiver. These kits were uncontrolled parts, nothing more, and no doubt hundreds or thousands were sold to owners of title1 AR-15's. The ATF did nothing, as is appropriate.

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