Quoted: Quaterbore, can you give a quick rundown of the legal situatio for owning an SBR/s and AR15/s.  There is some sort of problem w/ "constructive" isn't there?

I am not a lawyer so take my advise for what it is... an oppinion... but with items such as a SBR upper given that you have a receiver that is registered as a SBR then you have a perfectly legal and legitimate use for the SBR upper.  

Now, the BATFE has tried to say that in THEIR OPPINION you can not have spare M-16 parts when you own a M-16 and AR-15s as you would extra parts to build extra MGs.  This is pretty much the same example as both the SBR and M-16 are NFA registered and come under the same legal status.  So, I am fairly confident that the BATFE would likely indicate that they don't think it is a good idea to have a SBR lower and several SBR uppers but I also think the BATFE would have a very difficult time trying you in court so long as you don't put the SBR uppers on a non-NFA lower.  I say this as you do have a legitimate and legal use for the short upper.

Anybody else have an oppinion or a real answer?

Hello again, QB

What you say is compatible with US v. Kent
that I cited in this thread (found while searching for a post I wrote from about a year ago on this topic)

[url]http://www.ar15.com/forums/topic.html?b=1&f=6&t=235830&page=1[/url]

A detail also from US v. Kent that goes along with your post and arguably fits into the US v. Thompson/ Center case of 504 U.S. 505 (US Supreme Court, 1988):

" It is undisputed that Kent had not registered in the National Firearms Registration and Transfer Record the weapon that could be assembled by connecting the short-barreled upper receiver unit to the Colt AR-15 lower receiver unit."
175 F.3d 870 at 873.

Facts:
Kent had only 1 AR lower, and it was not a registered NFA firearm. The lower had an attached rifle length upper attached.  He had a complete short barreled upper somewhere in the same appartment. The ATF testified and demonstrated that it took less than a minute to swap uppers and have a complete, working, unregistered SBR. The 11th Circuit upheld his conviction for constructive intent to posses an unregistered SBR.


Everyone: Again, please read the NFA laws carefully if you are even contemplating buying a short-barreled upper, or you could inadvertently stumble into a major felony that prevents you from ever owning firearms again.

Cheers, Otto

Greetings Otto as well and let me repeat the question again as your reference doesn't really answer the issue.  If we have an example of a person who owns ONE AR-15 SBR and a second title 1 AR-15.  Let's say this person happens to have 2 uppers that are complete and built to SBR spects with a barrel under 16-inches.

My argument is that because you have a legal and legitimate use for this second SBR upper that it would be reasonable for the individual in question to have both uppers in the same location as the title 1 rifle.

Now, again I am pretty sure that the BATFE will advise against this but I also feel that they would have a tough time prosecuting in this case as there is no basis for the government to show intent to break a law due to the plausable and legal use for the parts.

I referred to the US v. Thompson/Center case above, but will elaborate some more.

The T/C case dealt with packaging a Contender pistol with a long barrel and rifle stock so that the pistol purchaser may convert the pistol into a rifle and back (Legal; converting an original rifle into a pistol is not legal).
However, the parts could be combined in a way to create a contender rifle with the pistol barrel (an SBR).
The Supreme Court, in a very mixed decision, ruled that the NFA statute regarding "making" a short barreled rifle (NFA "firearm") from parts and a non-NFA gun was ambiguous. Therefore, the rule of lenity required that the possession of parts that have a legitimate purpose to create non-NFA guns (i.e. a legal psitol and a legal rifle) do not in themselves constitute an NFA firearm.

"Here, however, we are not dealing with an aggregation of parts that can serve no useful purpose except the assembly *513 of a firearm, or with an aggregation having no ostensible utility except to convert a gun into such a weapon.   There is, to be sure, one resemblance to the latter example in the sale of the Contender with the converter kit, for packaging the two has no apparent object except to convert the pistol into something else at some point.   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."
504 U.S. 505 at 513-514.
"After applying the ordinary rules of statutory construction, then, we are left with an ambiguous statute. ... Accordingly, we conclude that the Contender pistol and carbine kit when packaged together by Thompson/Center have not been "made" into a short-barreled rifle for purposes of the NFA."
504 U.S. 505 at 517-518.

Definition of the rule of lenity: "Under the common law rule of lenity, courts must strictly construe penal statutes in order to avoid a violation of the due process rights of the accused. Thus, in criminal cases where two reasonable interpretations of a penal statute exist, one inculpating and the other exculpating a defendant, a court must employ the less harsh reading."

Therefore, it seems that the Supreme Court's position of owning a non-NFA rifle that is compatible with the short-barreled uppers for a registered NFA firearm (an SBR) is based on the fact that you have a legitimate purpose for owning the short-barreled uppers. Kent did not have what the 11th Circuit Court felt was a legitimate purpose for owning the complete and usable short-barreled upper in his small apartment, except for making an unregistered SBR.

Caveat: I do not know if the NFA statutes have been rewritten or modified from the date of the Supreme Court's decision that would remove the ambiguity they cite.

Cheers, Otto

Edited to add: This really needs a spell-checker feature.

Is a hacksaw an NFA item? [:D] The whole SBR constructive intent is stretching the NFA regulations a bit.

Team members have access to a spell checker in their post window!

In that an ATF agent is able to transform a rifle into a non-registered NFA SBR in under a minute at your trial for constructive possession of both a rifle and a hacksaw (a means to make it into an SBR), maybe....

(Seriously, unfortunately I know a few rabid policy types that would like to prosecute any gun owner any way they can.  Too bad the bag limit on rabid policy types is zero  To the rabid policy types reading this: "just kidding")

I don't think a Hacksaw is an NFA item but a hacksaw "mount" may put you in trouble with the assault weapon ban -- a whole different set of issues all together.

As for constructive intent and SBR's being overblown, I agree with you to the extent that Kent's conviction was upheld for exactly that.
See United States v. Kent, 175 F.3d 870

"While there is no direct evidence that Kent had assembled the rifle using the short-barreled upper receiver unit before, there was sufficient evidence, as outlined above, that Kent did not have the short-barreled upper receiver unit for parts, but for use with the lower receiver unit, which would constitute possession of a "firearm" required to be registered under §  5861(d) of the NFA."
175 F.3d 870 at 878.

I am used to Outlook that automatically shows me how horrible I spell [ital] after[/ital] I try to send the reply.

Cheers, Otto

It's not just NFA related constructive intent that is being expanded. Common household chemicals or legal quantities of black powder while in possession of plumbing supplies may get you arrested or at least reported to the media as bomb making supplies.  

Compose your post in Word or Outlook and paste it into the posting window if you are speeling chalenged. [:D]

How about when the AW ban sunsets and I am able to buy/assemble a non AOW ar pistol w/ over 50oz weight and all the evil features I want.  Let's say I have this "mil spec" Ar pistol w/ like an 11.5?"

I guess as long as I have a legitimate use for the short upper/s in the pistol lower, I can't be shown to necessarily have constructive intent to break the law.  But, that doesn't mean the ATF can't fuck w/ you b/c they feel like it.  Same proble w/ owning SBR w/ multible uppers (or at all) and Ar Rifles?  Depending on whether or not you have legal insurance a guy should probably make all of his Ar Lowers registered SBR's to avoid the whole issue, or he should somehow make it so the uppers betwixt the SBR and the rifle are not interchangible?  (like having an SP1 w/ big front pin and standard front pinSBR and uppers while not having big to small adapter pin).  

Maybe what I'll do is make my SBR an OA-93 w/ folding stock, with one commando legnth upper and one pistol caliber upper (though the pistol bolt would have to be exceptionally custom in the OA-93).  The shortened bolt carrers would operate in the standard lower assempby.  

What say you?

Rightwingnut:

My registered SBR lower (in-process at this very moment) is a 9mm with a pinned-in-place mag adapter. It is the only 9mm lower I own, but I do have Title 1 5.56 ARs. I don't see owning multiple  SBR uppers in 9mm as being problematic, since the only lower that can readily be used with them is the one that's registered. Now if I had a drop-in mag adapter in the safe as well, that might be an issue as the unused SBR upper + mag adapter + Title 1 AR could be easily assembled into an unregistered NFA weapon.

I don't obsess about the "constructive possession" issue like some folks do, but it IS in the back of my mind as I make these kinds of choices.