View Full Version : Nervous...
I formed a trust and submitted an electronic Form 1 for an SBR back in mid-May when it looked like wait times were right at four months. From the sticky thread here, it looks like those times are now consistently at five months putting my expectations for a stamp sometime in mid-October and very shortly before the election. I'm getting nervous that the 11.5" BCM upper I've picked out will not be available and that I'll be SOL should the election go the wrong way.
Don't bring the hate because I waited so long to jump on the NFA/SBR bandwagon... An SBR never seriously crossed my mind until a couple of months ago and is a "wouldn't it be nice to have" since I've got my rifle needs taken care of. I did, however, sell a very nice BCM upper from an extra complete rifle stashed away in the back of the safe to help fund this. I'm a loyal BCM customer, and their 16" uppers have been a little harder to find lately...not impossible, but I'm afraid that they will get much more difficult to get as we get closer to the election.
I'm wondering if I should bail on the SBR thing and buy another non-NFA BCM upper to go on my now naked lower (not yet engraved!!) while the getting is still possible. I don't want to end up with an extra lower lying around, although that's not necessarily a bad thing. I'd much rather have a fully functional rifle, though, since I've already rat-holed the funding needed to replace an upper (16" or 11.5"). T can handle eating the cost of setting up the trust as a painful lesson learned and still useful in the future if the world doesn't end in early November. I'll get the $200 in blood money back from ATF at some point and can use it for ammo or mags.
Anyone have similar thoughts?
Why not just go ahead and get the 11.5" now.
Just use a pistol RE in the mean time.
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jackblack73
07-27-16, 15:34
Has your lower previously been made into a rifle? It kind of sounds like it from your post, but I'm not sure.
I'd buy the upper, not mount in on the lower until you have your stamp.
Yeah, I don't see what the issue is here. Get whatever SBR upper you want now. Why do you feel you have to wait??
Why not just go ahead and get the 11.5" now.
Just use a pistol RE in the mean time.
This right here...
john armond
07-27-16, 16:31
Or, if your really nervous about "constructive possession" buy the 11.5" upper and have it sent and kept at a friend or relatives house until the stamp comes back.
Just to reiterate what has been stated above, you CAN have your lower and short barreled upper legally in your possession without having your tax stamp. You just can't put them together until your paperwork is approved and you receive the email/stamp. There is NO reason to wait to buy the upper. Just buy it now and put it on a pistol lower with sig brace, or wait to put it on the SBR lower until your paperwork is done.
I just got a Form 1 approved 3 days ago that i submitted February 11th. I had my short barreled upper on a pistol lower as a pistol until a few days ago, and now have it on my SBR lower. I would suggest doing the same until approval
Thanks for all of the suggestions, comments, and input. Because there are several other ARs in my home, an upper with a 11.5" barrel still in its original packaging, etc would potentially be problematic without the stamp in hand. At least, that's my understanding of applicable federal law and comments by others on this forum whom I've come to trust.
I thought briefly about going the pistol route but decided not to go that way because I have no desire for an AR pistol, have other lowers that are on rifles (including the spare one that was originally set up as a rifle), and don't want to be stuck with an 11.5" upper should my Form 1 somehow not get approved.
It seems like I may have read somewhere about some alternative and purely theoretical purchase and storage options, but "constructive possession" seems to me to be a sticky area that may or may not be interpreted the same way in every jurisdiction. Even if I was comfortable with any of the theoretical purchase/storage options, there's that whole thing about the Form 1 possibly being denied. This purely hypothetical scenario is interesting, though.
Although there's no such thing as "too many," I'm reasonably and comfortably covered in the AR department. I'm sure I'm probably over-thinking this issue, but I put the question out there to see if anyone was in a similar position or having similar thoughts.
I should also point out that my whole journey into the NFA world is y'all's fault...I never considered it until I came in here. Y'all are a bad influence.
jackblack73
07-27-16, 17:09
This right here...
That would only work if the lower had never been made into a rifle before. And using a pistol RE isn't really necessary.
OP, if your lower has been made into a rifle before, just buy the upper and don't attach it to the lower. Have it delivered to your friend's house if you really want to be careful. I did that with my first SBR.
Just buy the upper, stick it in the closet, and forget about it until the Form 1 comes back. It's not a big deal. In the incredibly unlikely chance that you get into some sort of legal trouble over owning the un-attached upper, it seems like have a pending Form 1 should be pretty good evidence that you're not breaking the law.
I'm almost in agreement with the above. I'd buy it and stick it in my office at work, a neighbor's closet, under a relative's bed...whatever. (Or in my garage where the NSA couldn't even find it). I just wouldn't stick in it my safe without a legal use for it.
Why not just go ahead and get the 11.5" now.
Just use a pistol RE in the mean time.
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+1, this makes most sense.
john armond
07-27-16, 18:23
Buy it. Let someone who doesn't have an AR house it. If for some reason your stamp gets denied, sell it. Depending on the political climate, it might rise in value. As far as constructive possession, a Molotov Cocktail is a destructive device, so in essence, filling your mower...while having a beer...using rag to wipe the sweat, and carrying a lighter for smokes should technically put you in the slammer
I am not a lawyer, but take caution on some of this advice: Constructive possession applies whether or not they are stored in separate locations. If it is stored at work, you still maintain the ability to create an SBR. If it is stored at anothers house, but it is yours, then you still own it and are in constructive possession. This type of "possession" tends to be used for possession of illegal drugs and possession of firearms by convicted felons. So take head when someone just tells you to store them separately. Case law supports that this still qualifies as contructive possession.
The correct answer is to make the lower a pistol (provided it was a pistol first and not a rifle). This is the only truly legal method to own a < 16" upper with no stamped lowers.
notorious_ar15
07-27-16, 18:53
Or you can just buy a cheap stripped lower & assemble it as a pistol (like an Anderson or something). Sell it when Form 1 gets approved & engraving is done.
Can any of you "constructive possession" theorists cite a single example of an individual being so charged?
john armond
07-27-16, 19:32
Can any of you "constructive possession" theorists cite a single example of an individual being so charged?
In my 20 years in law enforcement, I can't think of a single example regarding firearms, hence my ridiculous example of what could TECHNICALLY be considered "constructive possession." I would think it is more than likely something they would tack on after charging you with A LOT more serious charges as something to use for plea bargaining. Hope I didn't come off as a "theorist."
Get the 11.5 In a couple of months you may kick yourself if you don't.
Get the 11.5 In a couple of months you may kick yourself if you don't.
If you were a gun guy when Sandy Hook happened, you'll remember how scarce everything was for quite some time. I second the advice quoted above...
Can any of you "constructive possession" theorists cite a single example of an individual being so charged?
I only know of the guy in Florida with the H&K, but that was no where near as ambiguous as the upper and lower argument...
Just buy the thing and leave it in the box, unopened. If you're so worried about it, put it in a closet or attic and don't tell a living soul about it until your stamp comes in.
I would think it is more than likely something they would tack on after charging you with A LOT more serious charges as something to use for plea bargaining. Hope I didn't come off as a "theorist."
I think your assessment is exactly correct. I think "constructive possession", if it actually exists as a legal concept, is a non-issue for your average home NFA applicant.
I think your assessment is exactly correct. I think "constructive possession", if it actually exists as a legal concept, is a non-issue for your average home NFA applicant.
In the NFA context, I am unaware of any cases other than the Florida one. However, with the current (and likely future) administration, I would not like to be a test case.
Here is further reading:
https://blog.princelaw.com/2009/07/08/nfa-and-constructive-possession-myth-or-reality/
In the best case, the premise where you keep the upper would have to not be accessible to you. In the worst case....
Leonidas24
07-27-16, 21:14
Unless you're embezzling money, plotting a terrorist attack, or defrauding the IRS through tax evasion, you're safe. Buy the upper, stow it somewhere safe and out of hands you do not want to obtain it, or install a pistol RE until your stamp clears. Sell said pistol RE on EE to pay for your carbine extension.
The charges were dropped in that FL case after 3 weeks and his SP89, stock and FG were returned.
Buy the upper.
I am going to go out on a limb here......is the BATFE going to check to see if you are in constructive possession of an SBR upper before your stamp arrived? Are they going to inspect your safe? I mean I can understand NOT putting it together and NOT taking it to a public range, whom is going to know about it if you don't tell anyone? If the answers are obvious to the above questions.....then I need to lay off the Scotch for a while.
If you are truly that worried about it, have someone else buy it and hold it. It is not a firearm. But it's not a problem. Do you honestly think the ATF has time for that sort of thing?
If your that worried about it then wait. I think the advise you have received is sound. Make a pistol lower and have absolutely no worries, buy the upper and store it somewhere else and wring your hands for the ATF raid that is sure to happen, or wait and hope it's still available at the price you want to pay. Either way the advise is the same and there will always be hand wringers telling you to fret over non-existent legal what ifs. As for me, I would build a cheap pistol lower and shoot the bejesus out of that upper so it's nice and zeroed and broken in for when the stamp comes. Make a decision and proceed worry free.
Thanks for the comments, suggestions, and thoughts on this subject. I am good to go now.
diving dave
07-28-16, 10:25
I always wondered how they could prove "constructive intent" when the upper is not on the lower, and you have proof that you have submitted a Form1....Just seems weird.
I understand that an upper is not the firearm, but it was explained to me earlier this spring that simply possessing an NFA upper and a rifle lower before being issued the ATF stamp for the lower (and having the lower properly engraved) constituted constructive possession of an illegal SBR since there was nothing to prevent me from putting the two together and constructing an illegal weapon. I was also warned that storing such an upper at dad's house that's 250 miles away or with a friend or other family member could get sticky depending upon my ease of access.
It was further explained to me that I should never have more NFA uppers than appropriately stamped and engraved lowers if I own more than one lower. In other words, two different NFA uppers are fine if I own a single stamped/engraved lower since the upper isn't the firearm. However, two NFA uppers when I have only one stamped/engraved lower and another complete 16" rifle (or two or three or four) would allow me to put together two SBRs, one of which is not legal.
One other factor holding me back a little is engraving. No one is going to want a lower with my trust name and location on it should my Form 1 not be approved, so I was further advised to not get the engraving done until the stamp is approved. This one doesn't worry me a bit...
I agree that I'm already in deep doodoo if having an illegal SBR gets added to a list of charges filed against me. Again, I sincerely appreciate the discussion here and hope that I haven't wasted too much of anyone's time. This forum is a great resource, and y'all have helped me get this all straight in my mind.
It's funny how only law abiding citizens fret over legal minutia and yet the BATFE keeps putting more and more hurdles and bureaucracies in our path to exercise our 2nd Amendment rights. I wonder if Joe Criminal ponders all these issues as he shoulders his unregistered post 1986 select fire SBR? Hmmmm...
It's funny how only law abiding citizens fret over legal minutia and yet the BATFE keeps putting more and more hurdles and bureaucracies in our path to exercise our 2nd Amendment rights. I wonder if Joe Criminal ponders all these issues as he shoulders his unregistered post 1986 select fire SBR? Hmmmm...
Probably not, but that's why there are silly laws.
I'll add to my earlier post and ask, if a pistol is made with the SBR upper, and the pistol sits right next to an unregistered 16" AR in the safe.........you can see where I am headed......probably thinking too much about this whole thing? Is the BATFE going to search? Knowing that you have a Form 1 pending, are they going to send agents to demand to look into your safe?? Me thinks not but I could be wrong.
Is the BATFE going to search? Knowing that you have a Form 1 pending, are they going to send agents to demand to look into your safe?? Me thinks not but I could be wrong.
No they are not. What reason would they have to even get a search warrant
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It was further explained to me that I should never have more NFA uppers than appropriately stamped and engraved lowers if I own more than one lower. In other words, two different NFA uppers are fine if I own a single stamped/engraved lower since the upper isn't the firearm. However, two NFA uppers when I have only one stamped/engraved lower and another complete 16" rifle (or two or three or four) would allow me to put together two SBRs, one of which is not legal.
.
BS, are you saying I can't have 8.5"300 Blk, and a 11.5" 5.56 for one lower, if I own other rifles???
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I understand that an upper is not the firearm, but it was explained to me earlier this spring that simply possessing an NFA upper and a rifle lower before being issued the ATF stamp for the lower (and having the lower properly engraved) constituted constructive possession of an illegal SBR since there was nothing to prevent me from putting the two together and constructing an illegal weapon. I was also warned that storing such an upper at dad's house that's 250 miles away or with a friend or other family member could get sticky depending upon my ease of access.
Yes there is, it is called the LAW.
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Yes there is, it is called the LAW.
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Read it again, that's what he's saying.
Buy at least one upper now. Buy two if you can swing it. Prices have never been better.
...I would build a cheap pistol lower and shoot the bejesus out of that upper so it's nice and zeroed and broken in for when the stamp comes...
This is what I would do.
I would dig a hole in my swimming pool, hide it underneath and then cover it up. Definitely won't be "readily accessible."
Does this same technical legal risk exist by owning a 14.5" barrel? If one owns 3 stripped upper receivers, two 16.5" barrels and one 14.5" barrel all separate and unconstructed (parts) is that an NFA violation? I have a extended A2 flash hider in another parts drawer.... The possibilities are endless.
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I understand that an upper is not the firearm, but it was explained to me earlier this spring that simply possessing an NFA upper and a rifle lower before being issued the ATF stamp for the lower (and having the lower properly engraved) constituted constructive possession of an illegal SBR since there was nothing to prevent me from putting the two together and constructing an illegal weapon. I was also warned that storing such an upper at dad's house that's 250 miles away or with a friend or other family member could get sticky depending upon my ease of access.
It was further explained to me that I should never have more NFA uppers than appropriately stamped and engraved lowers if I own more than one lower. In other words, two different NFA uppers are fine if I own a single stamped/engraved lower since the upper isn't the firearm. However, two NFA uppers when I have only one stamped/engraved lower and another complete 16" rifle (or two or three or four) would allow me to put together two SBRs, one of which is not legal.
One other factor holding me back a little is engraving. No one is going to want a lower with my trust name and location on it should my Form 1 not be approved, so I was further advised to not get the engraving done until the stamp is approved. This one doesn't worry me a bit...
I agree that I'm already in deep doodoo if having an illegal SBR gets added to a list of charges filed against me. Again, I sincerely appreciate the discussion here and hope that I haven't wasted too much of anyone's time. This forum is a great resource, and y'all have helped me get this all straight in my mind.
You have received bad advice. For a clearer understanding of how the BATF is to interpret Constructive Possession, look up the results of the suit brought against the BATF by Thompson Center.
Basically, you will only have a problem if you have a rifle lower without a rifle upper AND have a shorty upper. If you have a rifle lower and a rifle upper to go with it, you can have a shorty upper as long as you do not assemble anything in an illegal configuration.
However, don't take my word for it. Search for and study the results of the suit Thompson Center brought against the BATF
Thanks for pointing out US v. Thompson/Center Arms Co. That was some pretty interesting stuff, and I'd never heard of the "rule of lenity." Good stuff!
I really appreciate all of the comments and help on this. My mind is at ease...
Before the Thompson center case, constructive possession was whatever atf could make stick.
After, it was defined. Constructive possession now is defined as having parts, or a set of parts, that can ONLY be used to make an illegal firearm.
That word only is very important.
Have an AR pistol and an AR rifle? Can you put the pistol upper on the rifle? Yes. Would it be illegal? Yes. But, that does not mean you will put the short upper on the rifle, and fedgov cannot assume you will.
Have a pistol upper, a rifle, and no pistol or sbr lower? Now, you qualify for constructive possession, because the only thing you can do with the short upper is put it on the non sbr lower, and make an illegal firearm.
Got a pistol, and a stock (complete w/tube)? Again, you qualify.
Perhaps an "in-process" form will save you, perhaps not. You can always hand the upper off to a friend to hold until your form comes in, provided it doesn't put them in the same spot.
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If you have a complete rifle along with a shorty upper, you are ok because you can make a legal configuration, a rifle upper on a rifle lower.
If you have a rifle lower, no rifle upper and a shorty upper, you are potentially in violation because the only configuration you can make is illegal without the proper paperwork
Not really, because even though your complete rifle is legal, the only thing you can do with the shorty upper is illegally install it on the rifle.
It is not an "extra" part, because using it makes an unregistered sbr.
It is the definition, a part or set of parts that can only be used to make an illegal firearm.
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But he didn't use it. And won't. Any first year attorney would win in court if the prosecutor were so bold to bring it
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TheAlsatian
08-10-16, 17:41
I would buy the upper and leave it with an ffl I trusted. There was, btw, a case just south of me in Arkansas in which an individual was charged with constructive possession of an SBR AR and convicted. He received 30 months in Club Fed.
..There was, btw, a case just south of me in Arkansas in which an individual was charged with constructive possession of an SBR AR and convicted. He received 30 months in Club Fed.
Otherwise upstanding citizen? Link to court case would be most helpful.
TheAlsatian
08-10-16, 19:01
Basically yes:
http://www.arkansasmatters.com/news/local-news/benton-man-gets-30-months-for-unregistered-short-barreled-rifle
There was a rather extended discussion about this on ar15.com. Fundamentally stupidity all around...
I read the link. He was not convicted for constructive possession. He was arrested for HAVING an unregistered assembled SBR which he used to threaten another driver. He was NOT arrested for having an unattached short barreled upper, or other AR bits and pieces that could be used to make a SBR. Huge difference between what the guy did and constructive possession. The only reason anyone cared was because he committed an Aggravated Assault.
TheAlsatian
08-10-16, 19:57
That is deceptive...I need to find the link on arfcom. He did not threaten another driver with the sbr, he reportedly brandished a Glock, but that was never found. When the police searched his vehicle he had an unassembled AR SBR in a backpack type case. It was the police that put the weapon together. He was in fact charged with constructive possession.
TheAlsatian
08-10-16, 19:59
http://www.ar15.com/forums/t_6_50/458710_SBR_trial_began_today.html
Long read but tells the tale..
I read the arfcom link and it is a convoluted story at best with only one side being told by the defendant's friend. This sounds like there was more going on here than what we are reading. Either way the guy put himself in a bad position by switching lowers and uppers for function testing. Then getting into a road rage incident, which by his friend's account he merely drove away from? Ok sure. Still the ATF didn't go to his gun safe and rifle through it looking for constructive possession.
A weak case to prove a point because there is so much going on from accusing law enforcement of framing the defendant and only hearing one side of the story, the side friendly to the defendant.
Constructive possession would and should be added to charges if the person is out and accused of committing other crimes. Whether or not his attorney was smart enough to argue a defense is neither here nor there.
Don't buy a short barreled upper if you are that worried about it until your from 1 is approved is the easiest solution for nervous Nellie's who believe the ATF is going to raid your gun safe without cause. I ensure that I have legal configurations available for short barreled uppers by have 2 AR pistol lowers with appropriate pistol buffer tubes attached. I do not use normal rifle built lowers to "test" functionality in my short barrel uppers merely by removing the stock, which was what the defendant admitted to doing, even though his friend posting the details at arfcom says he removed the stock only because the lower wouldn't fit in his backpack with the stock attached.
This guy was using his pistol upper on a rifle built lower and got caught being stupid and regrettably is paying g a high price for it.
TheAlsatian
08-10-16, 20:46
Agreed. The guy was a dumbass and paid the price. Point is...it does happen. What you do in your own home is your own business and swat teams in black helicopters are not going to swoop down on you...this guy had to push it and take it public.
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