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

  1. #51
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    Quote Originally Posted by SHIVAN View Post
    The ATF has also opined numerous times that parts are parts and firearms are firearms. An SBR upper has been written up as a "part" numerous times, and can neither take the role of "firearm" no matter how you want to slice it.

    A 7.5" Diplomat upper can be used on an AR pistol or a licensed SBR. It can also be purchase independent of either and still will ONLY ever be a part, which is why it has no serial number and carries no tax for a sale/transfer.
    Yes, and as I've already said, an autosear is "just a part" too unless and until you put it in the same house as an AR-15. Same with a <16" upper. It's just a part until it's parked near a lower that's not a pistol or registered SBR.

  2. #52
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    Quote Originally Posted by SHIVAN View Post

    Just because you like to run your life a particular way does not mean that translates in any way to my life. Further, letters addressed to a single person apply to that person and do not convey. Especially when they are opinion letters not backed by court cases. Also, the ATF's statements in this regard are very close to guilty until proven innocent, and would be a good test case along the lines of Heller.

    Express your opinion as opinion, not as gospel and singular truth. There simply is no real singular truth when it comes to ATF opinion letters. Thanks.
    This is not a matter of "life choices." This isn't a topic about what kind of women to date or what to eat for breakfast. There is enough law on this subject to make wise decisions and too many people on the internet not only whiff, but they insist on posting their opinions as legitimate positions when all of the authority on the subject says otherwise.

    I am also sorry to tell you that letters ostensibly addressed to one person carry a great deal of weight when they are written by certain people. To give you another example, opinions of the Attorney General of Virginia are addressed as letters to individuals - and get cited as authority by courts.
    Last edited by dbrowne1; 05-12-09 at 09:00.

  3. #53
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    You're quite wrong, as the letter can be changed on a whim by any author from the ATF. Whether it be the tech branch director, or the Director himself.

    In one breath, a shoestring is a machinegun, yet I have 100's of them and I would never be considered to own a shoestring machinegun. The letters are written addressing someone else's specific scenarios, and oftentimes the context for the WHOLE question is omitted.

    Quit expressing your opinion as a singular fact.

    A law abiding person, with registered SBR's can be in possession of SBR uppers.

    Along your rather narrow interpretation, your are guilty of constructing an SBR, be mere possession of a hacksaw. Also you are guilty of possession of an unregistered machinegun by possession of a finger, a shoulder and a shoestring.

    Please stop the bullshit. Now.
    Last edited by SHIVAN; 05-12-09 at 09:48.

  4. #54
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    What exactly is it that I'm "wrong" about or that is "bullshit?" I'm citing language directly from a U.S. Supreme Court case (that expressly rejected the lower court language that you erroneously cited to support your position). A disassembled SBR is still an SBR. Please explain how you get around that.

  5. #55
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    Quote Originally Posted by Texpatriate View Post
    Let's just say that Dad is getting a BCM 11.5" upper shipped to him as we speak. I placed my order earlier this evening after I got the e-mail notification.

    It seems that the consensus is that as long as it is not in my personal possession, or the possession of anybody else with an AR lower, it should be kosher. Even if "I'd never get caught", I wouldn't feel right about it being in my possession until everything was legal. So now it just has to sit in dad's gunsafe for 6 months while I wait on the tax stamp. Here's to hoping that, like fine wine, short barreled uppers age well.
    If by general consensus you mean one person in this thread, then yes it's a general consensus.

  6. #56
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    Quote Originally Posted by SHIVAN View Post
    If by general consensus you mean one person in this thread, then yes it's a general consensus.
    Yeah, who is also most likely the one person with a law degree and a card in his wallet that says he's allowed to give legal advice.

  7. #57
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    Quote Originally Posted by dbrowne1 View Post
    What exactly is it that I'm "wrong" about or that is "bullshit?" I'm citing language directly from a U.S. Supreme Court case (that expressly rejected the lower court language that you erroneously cited to support your position). A disassembled SBR is still an SBR. Please explain how you get around that.
    The ATF has issued a letter that a shoestring is a machinegun. They are whimsical and sometimes contradictory to the statutes they enforce. They are also responses based on a specific scenario of a particular person whose issues may mirror not one other person in the whole US.

    The possession of a single AR lower with a single SBR lower = a SINGULARLY illegal aggregation of parts.

    I presume that the author would not be in sole possession of an AR lower, and an SBR upper ONLY. I assumed that the author would still possess his legal 16+" upper creating a legal configuration and a POSSIBLY illegal one.

    So the presumption fits the ruling of the Supreme Court that there would exist a LEGAL combination of parts as well as an illegal one.

    Also, an autosear for an AR has a singular purpose, no matter what combination of AR and parts you have otherwise, so stop using it as your basis for comparison. A 7.5" upper can be a pistol upper or SBR upper, or paperweight.

    Are you guilty of constructive intent by possession of a hacksaw? Are you guilty of constructive intent with the possession of a non-922(r) parts kit? How about a shoestring?
    Last edited by SHIVAN; 05-12-09 at 10:07.

  8. #58
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    Quote Originally Posted by dbrowne1 View Post
    Yeah, who is also most likely the one person with a law degree and a card in his wallet that says he's allowed to give legal advice.
    That's all fine and well, lawyers are human too and are entitled to incorrect opinions and interpretation of the laws they practice.

    Let's look at all the federal judges in the 9th circuit who butcher rather simple interpretation of the Constitution -- all the time.

    If in Thompson the SCOTUS stated that they would find no crime by mere possession of a POTENTIALLY illegal configuration, then possession of an SBR upper with an otherwise LEGALLY configured AR would run counter to your advice AND the letter from the ATF directed at one particular individual.

    How do you reconcile that scenario??

  9. #59
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    Quote Originally Posted by SHIVAN View Post
    The ATF has issued a letter that a shoestring is a machinegun.
    That was not the sole criterion in that letter. There are a lot of other factors they cite, such as the fact that the device must be "designed and intended solely and exclusively... for use in converting a weapon into a machine gun."

    Obviously a shoelace sitting in your shoe or in a package from the store doesn't fit that criteria. One that is exactly the right length to act as an autosear, found in your gunsafe, with marks on it consistent with having been used for that purpose, would be. Where inbetween those two extremes there is any danger is anyone's guess.


    The possession of a single AR lower with a single SBR lower = a SINGULARLY illegal aggregation of parts.
    I think you meant a single SBR upper, and yes that is a clear-cut case.

    I presume that the author would not be in sole possession of an AR lower, and an SBR upper ONLY. I assumed that the author would still possess his legal 16+" upper creating a legal configuration and a POSSIBLY illegal one.
    That's not how I read the initial post, but in any case those aren't the facts of the T/C case. In T/C you had one receiver that could be lawfully used as a pistol with a 10" barrel or as a title I rifle with a stock and a 16" barrel - thus there was a legitimate use for EVERY part in the pile. In the situation you suggest, there is no purpose for the short upper except to make an illegal SBR.

    You would also be running afoul of the 2000 tech branch letter's reasoning, whatever weight you give to those letters.


    Also, an autosear for an AR has a singular purpose, no matter what combination of AR and parts you have otherwise, so stop using it as your basis for comparison.
    A short upper also has a singular (and illegal) use when all you have are title I rifle receivers. How is that so hard to understand?
    Last edited by dbrowne1; 05-12-09 at 10:24.

  10. #60
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    Quote Originally Posted by SHIVAN View Post

    If in Thompson the SCOTUS stated that they would find no crime by mere possession of a POTENTIALLY illegal configuration, then possession of an SBR upper with an otherwise LEGALLY configured AR would run counter to your advice AND the letter from the ATF directed at one particular individual.
    That isn't what the Court said, and in that case there was a legitimate use for each part (including the 10" barrel). There was a legal configuration in which that 10" barrel could be used - a pistol.

    That is not the case in your scenario, where the only possible use of the short upper is to make an illegal SBR.

    This part of T/C explains and, in effect, upholds previous circuit decisions that resolve this issue:

    We also think that a firearm is "made" on facts one step removed from the paradigm of the aggregated parts that can be used for nothing except assembling a firearm. Two courts to our knowledge have dealt in some way with claims that when a gun other than a firearm was placed togetherwith a further part or parts that would have had no use in association with the gun except to convert it into a firearm, a firearm was produced. See United States v. Kokin, 365 F. 2d 595, 596 (CA3) (carbine together with all parts necessary to convert it into a machinegun is a machinegun), cert. denied, 385 U. S. 987 (1966); see also United States v. Zeidman, 444 F.2d 1051, 1053 (CA7 1971) (pistol and attachable shoulder stock found "in different drawers of the same dresser" constitute a short-barreled rifle). Here it is true, of course, that some of the parts could be used without ever assembling a firearm, but the likelihood of that is belied by the utter uselessness of placing the converting parts with the others except for just such a conversion. Where the evidence in a given case supports a finding of such uselessness, the case falls within the fair intendment of "otherwise producing a firearm." See 26 U. S. C. § 5845(i)

    The Court went on to distinguish this scenario from the Thompson Contender kit scenario:

    But the resemblance ends with the fact that the unregulated Contender pistol can be converted not only into a short-barreled rifle, which is a regulated firearm, but also into a long-barreled rifle, which is not. The packaging of pistol and kit has an obvious utility for those who want both a pistol and a regular rifle, and the question is whether the mere possibility of their use to assemble a regulated firearm is enough to place their combined packaging within the scope of "making" one
    Last edited by dbrowne1; 05-12-09 at 10:40.

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