After reading SEVERAL ATF letters, I have several questions.

From what I have read, the ATF believes, for example, that if you have a machine gun, with M16 parts, and you have spare parts for said machine gun (any combination of parts), then that is okay, but they recommend only having one set, period. However, if you also have in your posession, any AR-type rifle besides a Colt Sporter (which has a DIAS block), then those combination of spare parts *could* be used in the other rifle, so you are now in possession of an unregistered machinegun, even if the parts are not installed. (They said something to that effect anyway...)


Now to my question:

Let's say Mr. X owns a pre-ban AR15 semi-automatic. He buys a new pre-ban upper for it, or has an extra collapsible stock laying around.

Later, he goes to the store one day, and decides he wants to buy (which is legal) a post-ban rifle for hunting, like the Bushmaster Varminter.

Once he takes posession of the post-ban, will the ATF now claim he is in posession of an unlawful assault weapon, even though Mr. X never assembled such a weapon? Is Mr. X to dispose of the spare parts for his pre-ban(s) before he purchases a post-ban? Will the ATF hold the FFL dealer liable for selling Mr. X an unregistered assault weapon even though the dealer had no idea? Is there a question on the ATF form that asks if you have spare pre-ban parts? etc. etc.

(I think the post-ban has to be the same caliber as the pre-ban, but I am not too sure on that since AR-style uppers can *usually* be swapped regardless of caliber... but that theory will not apply to the collapsible buttstock since it will fit on either of them.)

Edited to add: I read the letters from this site: [url]http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/law.html[/url]

I found a similar topic [url]http://www.ar15.com/forums/topic.html?id=105398[/url], which sort-of asks the same question...

And another one, which asks a similar question, but regarding to short barrels. [url]http://www.ar15.com/forums/topic.html?id=108757[/url]

This is one of those really gray areas.

My opinion (don't take this as legal advice) is you'd be ok for possession of an extra telestock and preban upper IF you had a complete preban gun and a complete postban gun.

Here's my logic:  The definition of an "assault weapon" ((18 USC 921(a)(30)) is defined by features.  The prohibited act with respect to assault weapons is to "to manufacture, transfer, or possess a semiautomatic assault weapon" (18 USC 922(v)(1)).  The word "manufacture" is not defined in Title 18, but I assume it to have the same meaning as "make" as used in the NFA.  The term "possess" is not defined, but cannot be the same as "manufacture" as that would violate a basis tenet of statutory interpretation (interpret the wording of the statute to give meaning to all terms).  I then interpret "possess" to mean the actual possession or control of a complete weapon.  If it were possession of a set of parts which could be used to make a complete weapon, we'd be giving "possess" and "make"/"manufacture" the same meaning in Title 18.

In Thompson/Center, the court examined the word "make" as used in the NFA.  It appears they ruled for Thompson largely because there was a way to use those parts legally.  That is, while the court acknowledged that mere possession of a pile of parts could be enough to "make" a firearm, they wouldn't assume it to be made illegally if there was a possible legal way to assemble those parts and "make" a firearm.  

So where are we with respect to a semi-automatic assault weapon in Title 18?  

Under Thompson, with the assumptions I made above (namely, you had a complete preban gun and a complete postban gun, and "manufacture" in Title 18 has the same meaning as "make" in the NFA), I think you'd be fine.  You'd be protected under Thompson for making - as long as there was a legal way to use that spare upper.  And I think you couldn't "possess" an illegally configured weapon (preban upper on a postban lower) unless it was actually assembled.

Now lets look at machineguns and see how they differ.

The statutory definition of a machinegun can include a single part  ("...any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.")(26 USC 5845(b)).  The prohibited acts under the NFA include "to "possess", "make", and "transfer" a weapon in violation of the NFA (26 USC 5861(a-f)).

Now lets say you had an AR15, and M16 (registered), and a spare M16 parts kit.  The possession of the parts kit could fall under the protection provided by Thompson against making, since there was a legal way to use those parts (in the M16).  However, look at the definition of machinegun again.  It can include "a part or parts".  Possession can still be a problem because of the broad definition of machinegun which includes those parts.  So while making a machinegun and possessing a machinegun end up having much the same meaning in the NFA, its not because the terms "make" and "possess" necessarily mean the same thing.  It comes from the wider definition of "machinegun".  




Of course, I may be totally off base...