View Full Version : storing a short barreled upper on a stripped lower?
threeheadeddog
12-29-10, 17:40
Is it legal to buy a stripped lower and store a short barreld upper on it prior to submitting paperwork?
I intend to build a SBR over the next year or so and with some of the deals going on I would love to purchase the upper after only the stripped lower. It is my understanding that a stripped lower is undefined as to weather it is pistol or rifle. Do I first need to complete it as a pistol before putting the upper on it? I only ask because many of the parts I would be putting on the lower such as trigger, stock, ect are costly and honestly not really subject to some of the supply/deals that uppers are and I would not have any problem waiting untill I have paid and recieved the tax stamp to complete it. Of course if I do have to have the lower actually completed in pistol form to hold a short barreled upper it would be a wast of parts considering I would be making it back into a rifle as soon as I got around to doing/fulfilling the SBR paperwork.
BTW while I am new to SBR I do understand most of the paperwork involved as I have already legally bought suppressors(though for whatever reason the engraving part is still a bit intimidating).
Also as a side not I do have a complete rifle at the house for now and do not have any other stocks/buffer tube/lower parts that are not attached to that rifle with the exception of the factory m4ish stock that I would gladly give away if having it in the house was an issue. Also the rifle is mostly sold and will hopefully be leaving the house soon(as in when I recieve the last payment).
There is nothing to gain by mounting an upper on a stripped lower. I wouldn't do it just because it's retarded. Legally? Who knows? It can't fire, but I suppose a case could be made that you've constructed a weapon.
The Dumb Gun Collector
12-29-10, 19:33
Don't do that.
I wouldn't do it just because it's retarded
Agreed and no, wouldn't recommend it.
Army Chief
12-29-10, 20:05
I would absolutely not do this.
The lower has a serial number, and was originally sold/transferred as something other than an SBR. Stripped or not, bolting that registered component up to an NFA length upper is all the "intent" an examiner would need to find you in non-compliance, if he wanted to take you down that path.
To be honest, I probably wouldn't even store those two components within 25 feet of each other.
AC
I would absolutely not do this.
... Stripped or not, bolting that registered component up to an NFA length upper is all the "intent" an examiner would to find you in non-compliance, if he wanted to take you down that path.
To be honest, I probably wouldn't even store those two components within 25 feet of each other.
AC
+1
Before I got my paperwork back, I actually stored ALL my lowers at my brother in laws house. That way I had no way of putting the two together to make a complete SBR. I think a lot of people just keep them within the same household, but separated. It's a slim chance that someone of authority would come by your household to make sure, but I personally would rather not take that chance.
Sucked that my "go to" rifle(s) were in pieces, but it gave me a chance to get better at working my shotgun during the wait.
threeheadeddog
12-29-10, 20:59
So I guess this only works when the stripped lower is assembled as a pistol first.
FWIW the lower is transfered as something other than an SBR. It is transfered as an "other". My question was basically since an "other" lower can be legally assembled into a pistol... at what point does it become a rifle and in violation of the law. I guess that I will just hope that there are some deals later in the year for uppers.
Also FWIW I have NOT bought any parts for this yet which is why I am asking questions now and not later.
My opinion is some people are looking too much into this. You're correct, it was transfered to you as a reciever. It hasn't been considered a rifle or a pistol yet.
So I think you're safe buying an upper at a good deal now and keeping the lower stripped. As long as you don't make a significant step towards assembling an SBR I think you're golden.
My opinion is some people are looking too much into this. You're correct, it was transfered to you as a reciever. It hasn't been considered a rifle or a pistol yet.
So I think you're safe buying an upper at a good deal now and keeping the lower stripped. As long as you don't make a significant step towards assembling an SBR I think you're golden.
Um, no.
There's nothing illegal about owning a stripped lower in the same house as a upper with a barrel shorter than 16 inches. There's no way to tell if he's building a pistol or a rifle. If he attaches something to the lower to make it an SBR or to the upper to make it an AOW then he's done something he shouldn't......but until then all he has is a stripped lower and a pistol upper.
NO CRIME.
There's nothing illegal about owning a stripped lower in the same house as a upper with a barrel shorter than 16 inches. There's no way to tell if he's building a pistol or a rifle. If he attaches something to the lower to make it an SBR or to the upper to make it an AOW then he's done something he shouldn't......but until then all he has is a stripped lower and a pistol upper.
NO CRIME.
It's called possession. Possession takes the big "intent" human honesty factor out of the equation. When you possess the parts, always assume they think they know your intent. This is silliness.
If you possess an SBR upper, you better have at least one registered lower with it, or NO lowers. There is a WEALTH of factual info on TOS about this exact thing. Read and learn.
Unless he decides to build a pistol out of the lower with a shorter than 16" upper.
I'm done with this pissing match, there's no reason he can't have a bare lower with a pistol upper. Find me case law that shows an ATF case where someone was guilty of possessing an NFA weapons mearely because they had the parts in the same house. And by that I mean find me a case of US vs Billy Badass, not a story on the internet that is written by Joe Snuffy who heard about Billy Badass' run in with the law.
If it were illegal to have a stripped lower and a pistol upper in the same place then the ATF would be doing dozens of raids on gun shops who happen to sell both of those. It's like saying someone with a hacksaw and a shotgun has intent to build a SBS, or someone who has plumbing equipment, nails, and black powder in the same house is planning to build a pipe bomb. All you have there is a blackpowder enthusiast who does his own home repair.
I think the internet has gone a little overboard with "constructive intent" and people have gotten to be way too paranoid. I'm sure people have been arrested for having constructive intent, but I'm willing to bet that those people took a significant step towards the assembly of a weapon they shouldn't have.....and simply owning parts that are legal to own is not a significant step.
Something to consider here: since the stripped lower has no stock on it, it cannot be considered a rifle. The easiest thing to do, which is what I did, was build a pistol, and SBR a lower at a later date. Get a pistol tube and don't worry about it.
glockshooter
12-30-10, 00:23
There is no actual laws dealing with constructive intent. IT DOES NOT EXIST. This is a figment of a paranoid persons mind. If the law worked the way the constructive intent people believe you would be charged with murder for simply owning a gun, or burglary for owning a screw driver, possession of a machine gun for owning a firing pin that could maybe be used to manufacture a M-16. It simply does not work that way. There is no portion of the law that allows a person to be charged with a crime because they might commit a crime.
Matt
Heavyweight
12-30-10, 10:35
I'd invite you to refresh yourself with this Supreme Court case:
http://www.stephenhalbrook.com/tc.html
Be Safe!
Heavyweight
Army Chief
12-30-10, 11:37
I'm slightly disappointed by the manner in which some of the follow-on discussion developed, but let's get this back to the OP's question: is it, or is it not, a problem to store a stripped receiver on an NFA upper?
Disregarding for a moment that there is no practical reason for doing so, it comes to this: a stripped AR-15 lower, barring any additional registration action, is considered to be a rifle receiver in the eyes of the law. If you wish to build a pistol, then you need to specifically purchase a receiver that is listed and transfered as such. It makes no difference whether the receiver itself is stripped, or in an advanced state of completion, and the lack of a buttstock does not give you grounds upon which to argue that you intended to build a pistol all along.
What troubles me about threads like these is the fact that NFA law is confusing enough without exploring boundaries which serve no larger purpose. We know for certain that we can mate an SBR upper to an SBR lower. We know that we cannot mate an SBR upper to a non-SBR lower. We know that AR pistols are a distinctly different class of firearm, notwithstanding the fact that they remain technically compatible with all rifle and SBR parts. Legally speaking, when an NFA upper is involved, you must go back to the lower and consider how it is registered. "Other" is simply not a valid classification here.
Constructive intent or no, we're still pissing in the wind to some degree, and whether or not a federal agent would ever show up at your home and examine the contents of your safe is a moot point. NFA ownership involves an attendant obligation to be very clear on the finer points of the law, and that level of knowledge generally precludes doing things like bolting stripped (non-SBR) lowers to NFA uppers.
I don't say this to make anyone feel foolish, but rather to reinforce the importance of knowing what "right looks like," and acting accordingly, rather than looking for potential loopholes in the law. Don't ask if you are doing it wrong ... just make absolutely certain that you are doing it right.
AC
Disregarding for a moment that there is no practical reason for doing so, it comes to this: a stripped AR-15 lower, barring any additional registration action, is considered to be a rifle receiver in the eyes of the law. If you wish to build a pistol, then you need to specifically purchase a receiver that is listed and transfered as such.
I have an argument with that statement. When you buy a stripped lower and fill out the paperwork there are 3 options for the store clerk to check.
1. Pistol
2. Rifle
3. Other/Reciever
So the lower should be transfered as a reciever. It is not seen in the eyes of the ATF as a pistol or as a rifle but only as a bare reciever, nothing more.
For that reason, a person cannot go to an out of state FFL to get the reciever transfered to them as they could if it were a rifle. The ATF recognizes that a reciever can be eventually turned into either a pistol or a rifle, and since out of state pistol transfers are a no-no they cannot transfer a reciever.
So back on topic, the OP can indeed legally own a bare reciever and an AR-15 upper with a barrel shorter than 16 inches in the same residence. Just because the upper has a barrel on it that is shorter than 16 inches does not make it an NFA item, and having it in proximity of a reicever which is registered as a reciever does not make it an NFA item. I have yet to see facts that state otherwise.
threeheadeddog
12-30-10, 12:33
Disregarding for a moment that there is no practical reason for doing so, it comes to this: a stripped AR-15 lower, barring any additional registration action, is considered to be a rifle receiver in the eyes of the law. If you wish to build a pistol, then you need to specifically purchase a receiver that is listed and transfered as such. It makes no difference whether the receiver itself is stripped, or in an advanced state of completion, and the lack of a buttstock does not give you grounds upon which to argue that you intended to build a pistol all along.
I am not trying to argumentantive and really did post this to get the right information. I do not already have my mind made up and will err on the side of caution which at this point seems to be not to do it. However I was under the impression that the above statement was absolutely not the case. I was led to believe that a stripped lower was NOT considered a rifle and was reflected as this since it was transfered as a "other" and required an age of 21 to purchase since it could legally be made into a pistol. My original question, though not worded well, was more to the point of when and how the "other"(not rifle) reciever lost its "other" classification.
For clarity. AFAIK It is perfectly legal to buy a stripped "other" recever and assemble as a pistol. It is also completely an obviously legal to assemble as a rifle. I believe that I can add a pistol buffer, grip, internals then an upper and have legally made a pistol. I can also so the same as a rifle with stock, grip, ect. So when does it loose its "other" status. Does it automatically become a rifle when any assembly is done (such as adding upper), does it remain an "other" untill the buffer tube has been added confirming its role, will it still be considered an "other" with upper parts but no assembly completed on the lower?
That was my question in a nutshell. If my entire question if flawed I understand that none of that applies.
I really wish Mr. Noveske would respond as he deals with this kind of stuff regularly, and reading his explanations on NFA and how it applies to lowers has helped me understand things better.
threeheadeddog
12-30-10, 12:35
also at the time I started writing the last post of mine cj5's post was not up so if I repeated him I am srry
A stripped receiver cannot be a rifle or a pistol, per the definition of each under the law. Frames or Receivers transfer as "other" for this reason.
To the OP: If your lower transferred as other and has never had a stock attached and if you do not have a rifle stock or receiver extension around then you are fine. You did not make an SBR or have the parts to show intent to make one.
If you are extra paranoid then get a pistol buffer tube for your lower and a letter from the lower manufacturer that your lower was never assembled as a rifle.
I'd recommend you build it up as a pistol before you submit the F1 so you can shoot it and make sure there isn't something out of spec with the lower.
threeheadeddog
12-30-10, 12:55
Todd do you have some kind of telepathy. I posted reference to you what 15 min ago?
Thank you for responding and again thank you for you knowledge.
Army Chief
12-30-10, 15:50
I will concede that the specific precedents that I have in mind are now somewhat dated, and largely driven by my past involvement with machineguns, vice SBRs, but I still believe that we are oversimplifying things a bit when we suggest that there are no larger issues in play.
The last time I checked, pistol lowers were required to be on the books as such, and while this may be a manufacturer distinction, at some point you are assuming that role when the lower is built up, no? If, at that point in time, you possess only those parts necessary to assemble the weapon in a pistol configuration, then perhaps you have a valid case to argue. (I don't necessarily believe that to be true on all counts, but it hardly seems worth debating here.) It seems more likely, however, that you will be collecting parts of both kinds, especially if the long-term intent is to convert the weapon into an SBR. Then what?
In the end, we're back to splitting hairs, but I've seen enough inconsistency in past ATF rulings that I would not take any comfort in the idea that this "should" be no big deal. To get back to my larger point, I still fail to see why it would be advantageous to snap any stripped lower on to a sub-16" upper -- permissible or not. If you've nothing to gain from doing this, then why even create the question when it puts you one buffer tube or spare buttstock away from potentially being guilty of noncompliance?
Not trying to be difficult brother, but none of us on the internet are going to be on hand to take up your cause should any of our counsel be called into question at some point down the road. Just don't want you to do something in good faith that could have unexpected consequences. If it is really important to you to store the lower in this fashion, parts or no parts, please run your question past the ATF in writing, so you will have a source document to turn to if something ever does happen to go wrong. That is erring on the side of caution.
AC
threeheadeddog
12-30-10, 17:13
I agree completely that even having other parts, especially parts that would complete the lower into anything other than pistol configuration would be a bad idea. As I stated in my original post I would not be buying any other parts untill after the tax had cleared. If I end up doing this I also would not even start this project until the one and only AR in the house is sold to further protect myself.
The Dumb Gun Collector
12-30-10, 17:55
Let me say up front that I am a practicing criminal defense attorney and a former prosecutor. If it were me I would not store the upper on the lower as the OP proposed. First, there is no good reason to do this. Second, when you are arrested because your girlfriend says you hit her and says that the marijuana in the bathroom is yours, and oh you have a "machine-gun" in the safe, you can rest assured you will end up in a bunch of hassle for no good reason. The DA will charge you under some obscure state statute and call the ATF out on you. After you spend $12,000 on your defense you will be exonerated. Of course, the best solution is to dump that crazy woman and just keep your upper at your dads. Also, I would probably stop smoking pot.
Obviously, I am playing around with some silly hypotheticals here. But as a guy who deals with a lot of folks who get in trouble for absurd reasons, I just say you might want to avoid tempting fate.
Army Chief
12-30-10, 18:20
Obviously, I am playing around with some silly hypotheticals here.
Perhaps so, but it is precisely these kinds of improbable scenarios that end up creating the very problem(s) that we have been discussing.
It is highly unlikely that the ATF would ever come knocking on your door because they heard that you had bolted an unregistered lower to a short upper, but if the weapon were discovered as a result of some completely unrelated misfortune, the end result would be much the same. A wise man would leave no doubt as to his intention to fully comply with the law; especially where anything NFA is involved.
Great insights, Greg -- thanks.
AC
My feeling is in agreement that putting the two parts together has no gain. But simply having both parts in the same gun safe isn't a crime. So my feeling is you should buy your upper while it's affordable and wait to assemble till later like you're planning. No reason to snap it together with the lower.
And on a tangent, I just recently assisted the ATF with a search warrant which was based on facts like Gregg mentioned. A guy got busted for a case of domestic violence and says "hey, by the way I know this Navy Seal who is smuggling machine guns into the US and selling them". The search found a pile of full auto guns, belt fed guns, C4, and hand grenades. I'd call that intent.
Gregg shared some good advice and with a twist or good humor.
Just don't snap them together until you're ready with your tax stamp or have a pistol upper built. Buy your parts now if you see a good deal. Stories g them assembled is just looking to complicate your life.
Raven Armament
12-30-10, 20:29
A stripped receiver cannot be a rifle or a pistol, per the definition of each under the law. Frames or Receivers transfer as "other" for this reason.
Correct.
To the OP: If your lower transferred as other and has never had a stock attached and if you do not have a rifle stock or receiver extension around then you are fine. You did not make an SBR or have the parts to show intent to make one.
A shoulder stock on a frame or receiver does not make a rifle. This is the definition of a rifle.
Rifle. A weapon designed or redesigned, made or remade, and intended to be fired from the shoulder, and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.
Please note in the bold emphasis of the CFR citation the weapon must be made to:
1. Use fixed metallic cartridges
2. Fire a single projectile
3. Have a rifled bore
Since a frame or receiver does not have any of those things, it cannot be a rifle. The word "made" is a past tense, thereby requiring the arm to be shoulder fired in addition to the three points listed above. Since it does not fullfil the list of three criteria beyond having a shoulder stock, it is not a rifle at that point.
I'd recommend you build it up as a pistol before you submit the F1 so you can shoot it and make sure there isn't something out of spec with the lower.
Yes that is excellent advice. Build it as a pistol with CAR receiver extension and work out the specifics of operation (short barrel ARs can be tricky since timing is off from the original design).
The last time I checked, pistol lowers were required to be on the books as such, and while this may be a manufacturer distinction, at some point you are assuming that role when the lower is built up, no?
I've been a 07 FFL since 2006 and the direction obtained from the IOIs was a frame or receiver is recorded as just that, with no distinction of a pistol or rifle or shotgun receiver/frame. In my experience, since 2006 it has been receiver/frame in the log book only.
MichaelZWilliamson
12-30-10, 21:51
A receiver is not a rifle or pistol.
BUT
once you attach parts to the receiver, it can be considered a rifle or pistol.
If you attach a short barrel to it, it could now be considered EITHER a pistol that is missing a fire control group, OR a SBR that is missing the stock and FCG.
As our attorney friend says, while you have not committed a crime, you've given them an invitation to go fishing.
Remember that at least one ATF office has busted a smith for changing barrels on single action revolvers, as "manufacturing."
Store that barrel off premises if you don't have a pistol to justify it, and wait for the paperwork.
There is nothing to be gained by attaching it to the receiver yet, and a lot to potentially lose--like your RKBA, freedom and a ton of money.
Yes, it's paranoid. But is it paranoid enough? And paranoids have enemies too.
Raven Armament
12-30-10, 22:04
A receiver is not a rifle or pistol.
BUT
once you attach parts to the receiver, it can be considered a rifle or pistol.
Only if configured pursuant to the definition contained in 27 CFR 487.11.
If you attach a short barrel to it, it could now be considered EITHER a pistol that is missing a fire control group, OR a SBR that is missing the stock and FCG.
No. Then it's a receiver with a short barrel and nothing else. It isn't something until you make it something. See TC Arms v US. Constructive possession of a SBR (and by proxy, SBS) is BS and there is case law to support this. The ATF's position is that case pertains only to the TC Arms kit, which is false and goes to show how much the ATF knows about case law.:sarcastic:
Bolt_Overide
12-30-10, 23:35
Much like walking around with a lightning rod in a thunderstorm, this isnt on the list of things Id recommend doing....
MichaelZWilliamson
12-31-10, 02:56
No. Then it's a receiver with a short barrel and nothing else. It isn't something until you make it something. See TC Arms v US. Constructive possession of a SBR (and by proxy, SBS) is BS and there is case law to support this. The ATF's position is that case pertains only to the TC Arms kit, which is false and goes to show how much the ATF knows about case law.
Well, you just tell them they're wrong. I'm going to stand over here. Waaaaaay over here.
Unless you personally will guarantee that every ATF agent knows exactly what the law says, is never wrong, and never biased, ignorant or just a dick.
Sorry, even if you guarantee that, I don't believe you.:)
I accept your determination of the definition. (Though did the "case law" involve an AR lower?) I still wouldn't do it. It accomplishes nothing, and could lead to thousands of dollars in anguish and even a conviction. (Especially as we agree that ATF likes to misinterpret case law.)
What's the risk of NOT doing it?
Oh, yeah. Nothing.
Bobert0989
12-31-10, 04:13
Much like walking around with a lightning rod in a thunderstorm, this isnt on the list of things Id recommend doing....
Or like playing Hot Potato with yourself... you will most likely get burned.
Raven Armament
12-31-10, 10:17
Well, you just tell them they're wrong. I'm going to stand over here. Waaaaaay over here.
Unless you personally will guarantee that every ATF agent knows exactly what the law says, is never wrong, and never biased, ignorant or just a dick.
Sorry, even if you guarantee that, I don't believe you.:)
That is why we have courts of law.
I accept your determination of the definition. (Though did the "case law" involve an AR lower?)
The case law was in regards to a receiver with short barrel, long barrel, shoulder stock, and pistol grip in close proximity being "constructive possession" -ATF's term and basis for the "why it's an SBR- of an SBR. The case was ruled that in order for a SBR to be an SBR, it had to be a complete assembled functioning weapon.
The ATF, in their infinite wisdom, loves to opine that TC v US was only about THAT particular kit, which is factually incorrect. That is merely the item that brought about the lawsuit. Fact remains this case applies to all weapon actions and "models". It could be a TC single shot type, an AR type, a bolt action type, etc. It matters nothing that TC v US wasn't an AR15 type lower. If it applied to only TC Arms receivers/frames, then Gideon and Miranda would apply to only those specific crimes and none else. That we know is patently false based upon the premise of the American system of common law (case law). TC Arms v US thereby applies to all receivers and frames that have not been assembled into a complete firearm.
I still wouldn't do it. It accomplishes nothing, and could lead to thousands of dollars in anguish and even a conviction. (Especially as we agree that ATF likes to misinterpret case law.)
What's the risk of NOT doing it?
Oh, yeah. Nothing.
I'm not telling anyone to do something or not do something. I'm providing information for which competent adults can make a decision themselves.
http://i320.photobucket.com/albums/nn346/gunguyshots/ATFLetter-Assemblyofpistolfromrecei.jpg
http://i320.photobucket.com/albums/nn346/gunguyshots/ATFLetter-Assemblyofpistolfromre-1.jpg
Apparently the ATF says even if a stock has been attached, it MUST NOT have had a rifled action added to it. Thus a pistol can be built. It also says that even if it was transferred as a Rifle it can be built into a pistol.
Why do these threads always have to border on the brink of insane stupidity? We have discussed "constructive intent" to death. We have also talked about having short uppers, pistol lowers, stripped lowers, etc.... Please read and do some research.
I have said a hundred times before. Unless you broadcast to the whole world that you are doing something quit over-thinking it.
One time I touched the flash hider of a short barreled upper to one of my Non-SBR lowers.... just for a second.... it made a sizzling sound and smoke came off of it.
This thread has my side hurting....I really find this one thoroughly amusing:laugh:
Whole lotta NFA Hypothetical Gibberish going on in this thread :)
Just out of curiousity, do you own another AR-15?
Because if you do, I'd say having an Short Barreled Upper and owning an AR-15 (even with a long barrel) and no registered lowers, begging for trouble.
Store it on a receiver, jesus, do you like tempting fate? :rolleyes:
There is no tempting fate storing an AR upper on a stripped lower!!!!
Lose the tinfoil hats people, read the discussion that's been on here, read the case law regarding TC. There's an awful lot of paranoid people on here and I'm pretty sure it's all due to a lot of bad information only found on the internet. Surely if it's on the web it's gotta be real right?
Army Chief
01-01-11, 22:42
I believe that everyone who wished to express an opinion on the matter has had an ample opportunity to do so. It really doesn't seem to matter whether the topic is SBR engraving or the disposition of a stripped lower; you're still going to get a half-dozen interpretations of the law when you ask the questions on an internet forum. That should hardly come as a surprise, given the ATF's own inconsistencies over the years in interpreting and administering NFA law. We're going to let this rest, and leave the OP to draw his own conclusions.
AC
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