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Thread: buying a SBR upper w/o the paperwork....yet...

  1. #91
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    The best review of the cases and issues in this thread that I have been able to find thusfar is here:

    http://caselaw.lp.findlaw.com/cgi-bi...e&no=978425opn

    I think they pretty much got it right, and this is binding precedent in the 11th Circuit and would probably be very persuasive to any other circuit given that it is built on authority from other circuits as well. This case conclusively says that if you have a regular, title I AR-15 with a "long" barreled upper attached, it is still illegal to have a short barreled upper laying around with it (assuming you have no other, lawful, use for the short upper).

    Please note that the court considered and completely rejected the "it's just parts" argument.
    Last edited by dbrowne1; 05-13-09 at 10:41.

  2. #92
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    dbrowne, do you have any cases showing regular guys getting nabbed for having an extra short upper for their SBR/pistol/MG lower along with other AR15s? Kent was also convicted of MG possession and fooling around with stolen guns. He was just using the SBR issue to try and get a new trial from what it looks like to me.

    Also:
    The short-barreled upper receiver unit included an upper receiver assembly, a rifle barrel, a flash suppressor, forward and rear sights, a sling, a scope with batteries to activate the light in the scope, a gas tube, a handguard assembly, a bolt and bolt carrier--all welded or otherwise fastened together as a single, active upper receiver unit.
    This probably is a bad idea for anyone to do that doesn't have a lower that can legally accept it somehow. And why would you if you were trying to stay legal?
    Last edited by hatt; 05-13-09 at 12:06.

  3. #93
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    Quote Originally Posted by hatt View Post
    dbrowne, do you have any cases showing regular guys getting nabbed for having an extra short upper for their SBR/pistol/MG lower along with other AR15s?
    No. I have not found any cases where that specific issue is addressed one way or another. The only "authority" out there on that is the tech branch letter from 2000 which clearly says that it's a really bad idea to have have extra short uppers laying around when you also have title I rifles to which they could be affixed.

    I don't agree with all of the tech branch's interpretations and I think they have in a few cases contradicted the case law, but that is their position on this particular issue and no court has said they're wrong yet.

    Kent appealed only the SBR charge, he was already going to the slammer on the others and he would have only gotten a new trial on the SBR charge, not the whole case.


    This probably is a bad idea for anyone to do that doesn't have a lower that can legally accept it. And why would you if you were trying to stay legal?
    That is what this entire thread has been about - buying a short upper and keeping it around while you wait for your paperwork to get approved. If you don't have a SBR/MG/pistol to put it on, and you do have a title I rifle that it could fit, then you shouldn't keep it under the same roof.
    Last edited by dbrowne1; 05-13-09 at 12:10.

  4. #94
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    From what I read, Kent didn't have anything anywhere he could legally pin this absolutely complete upper with battery powered sight complete with batteries. That's a little different than having one SBR/MG/pistol and two uppers, along with your other stuff. And he probably wouldn't have been prosecuted for that if he didn't have all the other charges.

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    Quote Originally Posted by hatt View Post
    From what I read, Kent didn't have anything anywhere he could legally pin this absolutely complete upper with battery powered sight complete with batteries. That's a little different than having one SBR/MG/pistol and two uppers, along with your other stuff. And he probably wouldn't have been prosecuted for that if he didn't have all the other charges.
    1. I misspoke before - he did technically appeal all 5 charges, the court only addressed the SBR charge and summarily affirmed the other convictions.

    2. I agree that it is a different, and possibly critically different, set of facts if you do in fact have at least one lower to which you could legally affix the short upper. As I said, there isn't any case (that I'm aware of) that addresses this situation, but there is a tech branch letter saying that you cannot do that. The net result is that there is still some substantial risk of keeping "extra" short uppers around.
    Last edited by dbrowne1; 05-13-09 at 12:20.

  6. #96
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    Quote Originally Posted by dbrowne1 View Post
    1. I misspoke before - he did technically appeal all 5 charges, the court only addressed the SBR charge and summarily affirmed the other convictions.

    2. I agree that it is a different, and possibly critically different, set of facts if you do in fact have at least one lower to which you could legally affix the short upper. As I said, there isn't any case (that I'm aware of) that addresses this situation, but there is a tech branch letter saying that you cannot do that. The net result is that there is still some substantial risk of keeping "extra" short uppers around.
    The only iffy issue I see is people buying, lets say the BCM 11.5 upper since it's in stock, and putting it away for one day when he plans on building a SBR and somehow it gets discovered by some non criminal event. Yeah, if you're dealing drug out of there they will probably try and go after that charge. I don't see any way someone, not involved in other illegal activities, is going to get prosecuted for having multiply uppers for their legal SBR/MG/pistol no matter what the AFT letter says.
    Last edited by hatt; 05-13-09 at 12:34.

  7. #97
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    Quote Originally Posted by hatt View Post
    The only iffy issue I see is people buying, lets say the BCM 11.5 upper since it's in stock, and putting it away for one day when he plans on building a SBR and somehow it gets discovered by some non criminal event. Yeah, if you're dealing drug out of there they will probably try and go after that charge. I don't see any way someone, not involved in other illegal activities, is going to get prosecuted for having multiply uppers for their legal SBR/MG/pistol no matter what the AFT letter says.
    I think everyone agrees that you're not likely to get caught if you keep yourself under the radar and don't do other dumb stuff. You're still committing a crime, though, if you have that 11.5" upper, you have title I rifles, and you don't have a legal means to use that 11.5" upper.

    The "it's only a crime if you get caught" approach is a dangerous road to travel. You can start justifying all sorts of things if that is your mentality.

  8. #98
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    dbrowne,

    The "it's only a crime if you get caught" approach is a dangerous road to travel. You can start justifying all sorts of things if that is your mentality.

    Agreed 100 percent. As a defense attorney I deal with solicitors and prosecutors that simply are not rational. They take the approach that if something is technically illegal, then it needs to be prosecuted--no matter how absurd. I have a kid right now that is being prosecuted for texting a porn picture of a woman to another guy (who was 16, had seen the picture before, and requested it). They are trying to put my kid on the sex offender registry! I have cases like this all the time. Imagine how sympathetic an Obama-appointed Federal Prosecutor is going to be to a violation of the NFA. Not very.


    Now, most prosecutors are reasonable, but every large County has a few nut jobs--and I wouldn't want to tempt fate just so I could have a lower around to look at.
    If you aren't armed when you take a dump in your own home then your opinion on what is a practical daily carry weapon isn't interesting to me.

  9. #99
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    Quote Originally Posted by dbrowne1 View Post

    The "it's only a crime if you get caught" approach is a dangerous road to travel. You can start justifying all sorts of things if that is your mentality.
    I agree here, you might start thinking of yourself as something other than a subject under total Government domination with all these crimes against what someone in power somewhere says is best for you.

  10. #100
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    Quote Originally Posted by hatt View Post
    I agree here, you might start thinking of yourself as something other than a subject under total Government domination with all these crimes against what someone in power somewhere says is best for you.
    Personally I wish the NFA didn't exist at all. I don't "like" it, and like Chris Rock, I ain't sayin' it's right.

    Greg Bell,

    I wish there were some sort of over-arching "common sense" test on these sorts of cases, but as you say, that isn't how things are decided. Part of the problem in many cases is poor legislative craftsmanship where we end up with laws that, when applied literally, have far reaching and unintended consequences. Another part of the problem is that everything is now a felony and pissing on a tree can get you labeled as a "sex offender" if the wrong person is nearby. It isn't just prosecutors, it's the bloated and clumsy book of law that we have in this day and age.
    Last edited by dbrowne1; 05-13-09 at 13:55.

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