View Full Version : Little help finding clear ATF Reg
Can anybody give me the code about SBR I know 27 CFR and I have looked thru the hand Book. I bought a lower receiver which a Form 1 HAS been sent off on which and is NOT at my house (at my work in a safe I can not open) I have a 11.5 upper that is at the Gunsmiths removing FSP and floating barrel/hand guards. When I drop it off he wanted to see my ATF Form. I said to him I don't have it back yet. He said that I was violating the law. I said no because the upper has never been mounted to the lower, nor has the lower ever been in the same place as the upper. I really don't have a good feeling about this I have the feeling that when I go get the upper a LEO will be waiting for the fat guy (me). I want to be able to show both the gunsmith and any LEO that I have not violated the NFA Act in anyway. A little help please, I have checked on my Form 1 and it not in the system as of yet (this morning). I call and spoke to a NFA examiner Mr. James Scott (great guy) but he was unable to find a ruling on this.
Can anybody help here?
Luke
Robb Jensen
08-25-07, 05:57
I think it's mostly a hypothetical situation where an agent could say that you have 'constructive intent' meaning you had the means and intent to build an illegal SBR. Just wait for your Form 1 to come back before you pick it up. (approvals are 16-30days now).
The gunsmith can call the local Police, but they don't have any say in it.
I have fired off an E-mail to the ATF askin the question concerning uppers that are shorter than 16" and ownership without the form 1 back. I will post what they say.
C4
Well I hope that's the last of anything you take to that Gunsmith.
The gunsmith can call the local Police, but they don't have any say in it.
I have fired off an E-mail to the ATF askin the question concerning uppers that are shorter than 16" and ownership without the form 1 back. I will post what they say.
C4
There is a lot of Case Law on this. If the only way the upper/lower can be assembled is into an SBR, it is a violation.
US vs. Kent (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/11th/978425opn.html&friend=nytimes)
US vs. Thompson/Center (http://www.law.cornell.edu/supct/html/91-0164.ZO.html)
There is a lot of Case Law on this. If the only way the upper/lower can be assembled is into an SBR, it is a violation.
US vs. Kent (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/11th/978425opn.html&friend=nytimes)
US vs. Thompson/Center (http://www.law.cornell.edu/supct/html/91-0164.ZO.html)
I really don't think so. We have not seen a case where someone was convicted of simply having a lower and a short barreled upper (apart). Those two cases listed were dealing with an 07 manufacturing items and the other guy was making machine guns.
Do you know how many FFL's and non FFL's have under 16" AR uppers in their shop????
As I have said, I have spoken to an ATF agent about this already and they had no issue with under 16" uppers and lowers being in the same building.
I will hopefully hear back from the ATF soon with my question regarding this.
C4
Yes, maybe if it is the only way but having a 16" at home pretty much means that it's NOT the only way...
I really don't think so. We have not seen a case where someone was convicted of simply having a lower and a short barreled upper (apart). Those two cases listed were dealing with an 07 manufacturing items and the other guy was making machine guns.
Do you know how many FFL's and non FFL's have under 16" AR uppers in their shop????
As I have said, I have spoken to an ATF agent about this already and they had no issue with under 16" uppers and lowers being in the same building.
I will hopefully hear back from the ATF soon with my question regarding this.
C4
Are you sure you read the correct links? In Kent, he had a lower and <16 upper. It had nothing to do with 07 MFG. He "was convicted of simply having a lower and a short barreled upper (apart)". The court clearly stated not having them assembled was irrelevant.
26 U.S.C. § 5845(c). This definition of a rifle does not specify that a weapon must be assembled completely in order to be a "rifle." Cf. United States v. Woods , 560 F.2d 660, 665 (5 th Cir. 1977) (interpreting 26 U.S.C. § 5845(d), the NFA definition of "shotgun"). Instead, for a weapon to be a "rifle," that weapon simply must be capable of being "readily restored to fire." § 5845(c)
This is a settled issue. The T/C provides the counter example, that if it can be legally assembled or illegally assembled, you are given the benefit of the doubt. That is why it never hurts to buy your stripped lowers as pistols.
Are you sure you read the correct links? In Kent, he had a lower and <16 upper. It had nothing to do with 07 MFG. He "was convicted of simply having a lower and a short barreled upper (apart)". The court clearly stated not having them assembled was irrelevant.
26 U.S.C. § 5845(c). This definition of a rifle does not specify that a weapon must be assembled completely in order to be a "rifle." Cf. United States v. Woods , 560 F.2d 660, 665 (5 th Cir. 1977) (interpreting 26 U.S.C. § 5845(d), the NFA definition of "shotgun"). Instead, for a weapon to be a "rifle," that weapon simply must be capable of being "readily restored to fire." § 5845(c)
This is a settled issue. The T/C provides the counter example, that if it can be legally assembled or illegally assembled, you are given the benefit of the doubt. That is why it never hurts to buy your stripped lowers as pistols.
Yes I did read them and read them actually years ago as well. The Kent one IMHO had more to do with him building a MG and is why the ATF got him.
What I want to see is where the ATF got someone simply for having an upper that was under 16" and a lower. This has never happened to my knowledge.
As I have also stated several times now, my local ATF agent saw no issue with having under 16" uppers and lowers in the shop. If this was a problem, just about every single ARFCOM dealer would be screwed.
C4
As I have also stated several times now, my local ATF agent saw no issue with having under 16" uppers and lowers in the shop. If this was a problem, just about every single ARFCOM dealer would be screwed.
C4
I thought your question was for non-licensees. Yes, Licensees are treated differently and can possess things others can not.
I thought your question was for non-licensees. Yes, Licensees are treated differently and can possess things others can not.
Nope, am talking about non FFL holders. When I orig. asked the question to the ATF agent I was a non FFL holder (as are most of the dealers on ARFCOM).
C4
Nope, am talking about non FFL holders. When I orig. asked the question to the ATF agent I was a non FFL holder (as are most of the dealers on ARFCOM).
C4
Well, Kent was prosecuted, the prosecution was upheld, and the courts clearly stated: 26 U.S.C. § 5845(c). This definition of a rifle does not specify that a weapon must be assembled completely in order to be a "rifle." , which was based on a precedent for SBS in the 70s'. I do not see what is left for interpretation.
Please scan/post your letter if it says otherwise.
Well, Kent was prosecuted, the prosecution was upheld, and the courts clearly stated: 26 U.S.C. § 5845(c). This definition of a rifle does not specify that a weapon must be assembled completely in order to be a "rifle." , which was based on a precedent for SBS in the 70s'. I do not see what is left for interpretation.
Please scan/post your letter if it says otherwise.
I guess the point is that the guy was making a MG. This is why the ATF went after him. Everything else was just icing on the cake. There has NEVER been a case where someone was busted for owning an under 16" upper and a lower that were apart.
From talking with the ATF already, they seem to have different opinions on the law than what was found in court.
As soon as I get the e-mail back I will post it.
C4
I guess the point is that the guy was making a MG. This is why the ATF went after him. Everything else was just icing on the cake. There has NEVER been a case where someone was busted for owning an under 16" upper and a lower that were apart.
From talking with the ATF already, they seem to have different opinions on the law than what was found in court.
As soon as I get the e-mail back I will post it.
C4
Yes, but that would not change whether it is legal or not, only whether or not they want to prosecute for a isolated offense. And prosecutions are decided by the DA's, not the ATF.
The Weaver case involved a guy with a 17.75" shotgun and no tax stamp. I do not beleive there were any other charges on him at the time.
ETA - O nsecond thought, I think Weaver was charged with selling it, not possession only.
Yes, but that would not change whether it is legal or not, only whether or not they want to prosecute for a isolated offense. And prosecutions are decided by the DA's, not the ATF.
The Weaver case involved a guy with a 17.75" shotgun and no tax stamp. I do not beleive there were any other charges on him at the time.
Do the courts come to your home to arrest you in regards to federal firearms laws? No. The ATF does. If the ATF is standing in my shop or home and they see no issue with an under 16" upper apart from a lower then that is all that really matters IMHO.
Back to the NON-FFL dealers selling SBR uppers. Do you really think that the ATF has not seen the dealers on ARFCOM selling SBR uppers? If manufacturers thought that their dealers were breaking the law by receiving under 16" uppers, they would NEVER sell them any. Case in point: http://www.ar15.com/forums/topic.html?b=7&f=22&t=307831 They have no FFL or SOT. By following your logic, ONLY SOT dealers would be allowed to sell SBR uppers and manufacturers would require the dealer to have an SOT. This just is not the case.
C4
Do the courts come to your home to arrest you in regards to federal firearms laws? No. The ATF does. If the ATF is standing in my shop or home and they see no issue with an under 16" upper apart from a lower then that is all that really matters IMHO.
Back to the NON-FFL dealers selling SBR uppers. Do you really think that the ATF has not seen the dealers on ARFCOM selling SBR uppers? If manufacturers thought that their dealers were breaking the law by receiving under 16" uppers, they would NEVER sell them any. Case in point: http://www.ar15.com/forums/topic.html?b=7&f=22&t=307831 They have no FFL or SOT. By following your logic, ONLY SOT dealers would be allowed to sell SBR uppers and manufacturers would require the dealer to have an SOT. This just is not the case.
C4
I guarantee you I am 100% correct on this issue. Whether you choose to believe it or not is up to you. Hire a lawyer to research it, he will give you same answer. Just because you found an ATF agent who either does not know the law, or misunderstood your question does not matter.
As for the link, I did not see anything illegal. <16 uppers by themselves are unregulated, possess/sell as many as you want. Model 1 does the same thing in Shotugn News. No FFL, no problem. I am confused how you correlate this activity into an individual who has both lower and upper but no tax stamp.
I guarantee you I am 100% correct on this issue. Whether you choose to believe it or not is up to you. Hire a lawyer to research it, he will give you same answer. Just because you found an ATF agent who either does not know the law, or misunderstood your question does not matter.
As for the link, I did not see anything illegal. <16 uppers by themselves are unregulated, possess/sell as many as you want. Model 1 does the same thing in Shotugn News. No FFL, no problem. I am confused how you correlate this activity into an individual who has both lower and upper but no tax stamp.
I would have to disagree with you on the gurantee thing. I will wait to hear back from the ATF before I will believe anything different then what I have been told directly by the ATF.
Read the link I sent you. He is selling under 16" uppers and has no FFL/SOT. Follow me now??????????????? As I have said, if it were illegal for dealers (without an FFL or SOT) then manufacturers wouldn't sell them to anyone (including dealers).
Just to be clear, people need to do what they feel comfortable with. A simple way around this is to have an AR wtih a 16" upper or keep the upper at a friend/relatives house until your form 1 clears (if they are concerned about this law).
As far as case law goes, just because something is found one way, doesn't mean that it cannot be found another way. Kent most likely had a crappy lawyer that didn't know gun laws very well and or how to fight them better. I personally would love to have the time and money to fight this in court as I bet I could win. The whole "he could have created an SBR" would fly about as far as a farmer having all the components (in large qty) to create a bomb (like the one used in OK) would.
C4
I would have to disagree with you on the gurantee thing. I will wait to hear back from the ATF before I will believe anything different then what I have been told directly by the ATF.
Read the link I sent you. He is selling under 16" uppers and has no FFL/SOT. Follow me now??????????????? As I have said, if it were illegal for dealers (without an FFL or SOT) then manufacturers wouldn't sell them to anyone (including dealers).
Just to be clear, people need to do what they feel comfortable with. A simple way around this is to have an AR wtih a 16" upper or keep the upper at a friend/relatives house until your form 1 clears (if they are concerned about this law).
As far as case law goes, just because something is found one way, doesn't mean that it cannot be found another way. Kent most likely had a crappy lawyer that didn't know gun laws very well and or how to fight them better. I personally would love to have the time and money to fight this in court as I bet I could win. The whole "he could have created an SBR" would fly about as far as a farmer having all the components (in large qty) to create a bomb (like the one used in OK) would.
C4
I misread your original post which was:
I have fired off an E-mail to the ATF askin the question concerning uppers that are shorter than 16" and ownership without the form 1 back. I will post what they say.
I misconstrued this to imply one also had a lower since they were sending off a Form 1.
I see what you are saying now. I agree, if you do not have any lowers, you can have as many < 16 uppers as you want.
Thanks everybody for the replys,:) its a mute point now I have my approved form 1 back from ATF, and the damn gunsmith has not completed the work on my upper:mad: " I've been really busy, sorry that I have not called you". Did you ever hear back from ATF about this?
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