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Posted: 4/13/2002 10:44:54 AM EDT
Ok, this is a question of what people are or are not aware of, I'll post the cases after I get a couple responses of what people think. Are you allowed to possess an 13" barreled upper NOT INSTALLED on a lower without a special permit or registration? (You also own a lower.)
Link Posted: 4/13/2002 10:52:17 AM EDT
It is CONSTITUTIONALLY LEGAL to own whatever weapons one wants.
Link Posted: 4/13/2002 10:58:31 AM EDT
Link Posted: 4/13/2002 11:00:22 AM EDT
IMO, it is legal to own but not installed unless you have a tax stamp. It can legally be placed on a registered lower, or on a gun if you have paid the tax for a SBR. Postban/preban means nothing.
Link Posted: 4/13/2002 11:28:19 AM EDT
[Last Edit: 4/13/2002 11:29:10 AM EDT by SteyrAUG]
Originally Posted By Wolfpack: It is legal as long as it is not installed on a post ban lower, but then again, why would you ask a pool guy for legal advice? [:E]
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7 is correct. While there is a ban on the current manufacture of machine guns(86' Ban) and assault rifles(94' Ban), there is no ban on SBRs. You can take a postban rifle and build it as a SBR(Form 1) as long as it's configuration is NOT an assault rifle (ie. no flash hiders, bayo lugs, collapsable stocks.) As far as legality of upper and lower in possession without a form 4, I'm not sure.
Link Posted: 4/13/2002 11:46:24 AM EDT
[Last Edit: 4/13/2002 11:55:06 AM EDT by shaggy]
I assume you're referring to US v. Thompson/Center Arms. Really, it depends. Does the owner of this short upper also have a pistol lower or an NFA weapon upon which the short upper could legally be used? T/C got their tax refund largely because the Court assumed that if the assemblage of parts had both a legal and an illegal form of assembly, they would assume it to be legal. The Court did note, however, that a collection of parts (unassembled) could still be considered a rifle, and a colletion of parts (unassembled) with no use other than to form a SBR could be an SBR. The question then is do the parts possessed have a legal form of assembly? Certainly if you have a rifle with a 16"+ barrel on it, its legal. The additional possession of a 13" upper without any other lower upon which it can be legally assembled is what distinguishes your example from Thompson. In Thompson, all the parts could be used, and used in a legal (and unregistered) form. With a 13" upper and only an unregistered rifle lower, you have no conceivable way to legally use that upper and mere possession of the upper and the assembled gun could fall within the NFA. Unless you have some cases I don't know of, even in light of Thompson, your example still falls within a gray area. Its certainly enough for an AUSA to make a case and prosecute you on.
Link Posted: 4/13/2002 1:02:09 PM EDT
It is also illegal to possess a hacksaw blade without a registered SBR![:D]
Link Posted: 4/13/2002 1:04:58 PM EDT
And does owning a bottle of liqour and a dishrag constitute a "destructive device"? After all Molotov Cocktails ARE specifically listed by the ATF as a Destructive Device and subject to regulation. And are those who register them being double taxed? First the alcohol tax then the weapon tax?
Link Posted: 4/13/2002 1:12:47 PM EDT
A bottle of liquor, a dish rag, AND PARAFFIN..... Then you have clear intention of Mozeltov Cocktail! [;)]
Link Posted: 4/13/2002 1:29:22 PM EDT
OK now IF your state does not allow Class III or SBR/AOW etc then would the said upper be illegal to posses?
Link Posted: 4/13/2002 3:19:07 PM EDT
does michigan allow short barreled rifles
Link Posted: 4/13/2002 4:58:39 PM EDT
Michigan only allows SBR if it is C&R. An upper under 16 inches with a rifle lower may be Conspiracy to unlawfully make a SBR in their eyes. I believe it is bull since I could be buying parts to build something else. I could also be planning on adding a permanently attached muzzle extension to bring it up to 16 inches. It really boils down to if the ATF wants to make your life hell. My answer to the original question would be it depends on what is right and what is law. They are two different things.
Link Posted: 4/13/2002 5:48:49 PM EDT
[Last Edit: 4/16/2002 3:24:34 AM EDT by Halfcocked]
I've mail ordered uppers from out of state. The person filling the order didn't know squat about me other than I had a credit card. I could have been an eight year old for all they knew. You can have any length barrel you want. I cut 4" off a 20 inch barrel. That makes a 16" and a 4" barrel doesn't it? Edited after I replaced the batteries in my calculator. Thanks DScott.
Link Posted: 4/13/2002 5:53:33 PM EDT
The case in particular I found is US v. Kent (175 F3d 870), where a guy was convicted of owning a "firearm" (NFA defined as a complete weapon capable of discharging a bullet) since he had an AR15 lower and a 13" upper. However they were not together and the lower had another (longer than 16") upper on it also. Kent claims he was going to strip the upper for parts, although it was complete with scope, bolt and carrier. What bugged me is the court's presumption that he was going to eventually use this shorter upper, only because it had a scope on it and all its parts. They also brought in the ATF to show how easily it could have been put on the new gun in under 2 minutes. What bugged me is that was how they showed intent!! Ease of use equals intent? Here is the exact language the court used:
After review, we find that there was sufficient evidence to sustain Kent's conviction ... The evidence indicates that the upper receiver unit was a complete, intact unit and that this short-barreled upper receiver unit was "compatible" and could be interchanged readily with the upper receiver unit on the Colt AR-15. Moreover, an ATF agent testified that the result of interchanging these upper receiver units would be "a weapon which is designed and intended to be fired from the shoulder, capable of discharging a shot through a rifle bore[,] and having a barrel length of less than sixteen inches." [red]Because the short-barreled upper receiver unit and the Colt AR-15 lower receiver unit were located in the same, small apartment and could be connected so quickly and easily, creating an operable short-barreled rifle with only a minimum of effort, evidence that Kent possessed both of these units was sufficient to prove that Kent possessed a "rifle having a barrel ... of less than 16 inches in length"[red]
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Well folks, there are more cases on this, but they all say the same thing (outside of TC Arms) There was one peculiar case of a guy owning an AR15, with a select fire group and milled out receiver, who needed specific knowledge of the automatic fire capabilities to be convicted. (Also goes to burden on the prosecution for mens rea.) He ended up with a 5 year probation and $5000 fine though, but way better than the 10 year mandatory! Bottom line is that you should not possess a SBR upper without the proper forms and tax stamps. VERY ridiculous, but I guess we'll learn where Kent lost.
Link Posted: 4/13/2002 6:03:11 PM EDT
Originally Posted By Halfcocked: I've mail ordered uppers from out of state. The person filling the order didn't know squat about me other than I had a credit card. I could have been an eight year old for all they knew. You can have any length barrel you want. I cut 6" off a 20 inch barrel. That makes a 16" and a 6" barrel doesn't it?
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Halfcock, I guess it depends on where you went to schoool. Where I went to school, it makes a 14" barrel and a six inch barrel section. (BTW, the 14" section sounds a little illegal) Scott
Link Posted: 4/13/2002 7:44:43 PM EDT
Link Posted: 4/13/2002 8:22:25 PM EDT
The key to the answer is this: Do you have in your possession the lower receiver of an AR-15? If so, then better get your [b]'poop in a group'[/b], 'cause it's the slammer for you! If you possess a licensed Class III M-16 then you would be all right...but I would still keep that shorty upper as far away from that AR-15 as I could! Probably not even in the same location! Eric The(BetterSafeThanSorry!)Hun[>]:)]
Link Posted: 4/14/2002 7:50:26 AM EDT
Originally Posted By EricTheHun: The key to the answer is this: Do you have in your possession the lower receiver of an AR-15? If so, then better get your [b]'poop in a group'[/b], 'cause it's the slammer for you! If you possess a licensed Class III M-16 then you would be all right...but I would still keep that shorty upper as far away from that AR-15 as I could! Probably not even in the same location! Eric The(BetterSafeThanSorry!)Hun[>]:)]
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As the rule of thumb, you're absolutely correct, but my problem with the court's decision is that through trying to determine the intent of Kent, the utilized an ease of use approach, which I've never heard of! No proof of whether the 13" upper had been shot or even how long he had possession of it, since he said he was going to strip it. It leaves a grey area which to me is pretty dangerous for one of us. [bold]Posted by Mojo: I agree. The word "intention" is the key. When you don't know--ask. When you are in doubt--ask. [bold] You're definately correct, but if you're asking the authority (ATF), you're always going to get the 3 year old answer of "NO" everytime you ask!
Link Posted: 4/14/2002 10:14:55 AM EDT
According to SCOTUS, as long as you also possess the items needed to make a Pistol you will be fine. But, you will likely need to also possess a Lower with Pistol Buffer and Fixed Magazine to argue T/C if you are charged. Now here is the sticky issue, the Defintion of Handgun includes 2 paragraphs. One paragraph includes any firearm originally built w/ a "short" stock and intended to be fired with one hand. But, the 2nd paragraph says that any combination of parts that a Handgun can be made from is a handgun. So, aren't all rifles considered handguns since the parts could also have been used to make a Handgun. All Rifles are therefore also Handguns under the 2nd Paragraph as they at some time consisted of a combination of parts from which a Handgun could have been assembled.
Link Posted: 4/14/2002 10:25:01 AM EDT
Originally Posted By cc48510: According to SCOTUS, as long as you also possess the items needed to make a Pistol you will be fine. But, you will likely need to also possess a Lower with Pistol Buffer and Fixed Magazine to argue T/C if you are charged. Now here is the sticky issue, the Defintion of Handgun includes 2 paragraphs. One paragraph includes any firearm originally built w/ a "short" stock and intended to be fired with one hand. But, the 2nd paragraph says that any combination of parts that a Handgun can be made from is a handgun. So, aren't all rifles considered handguns since the parts could also have been used to make a Handgun. All Rifles are therefore also Handguns under the 2nd Paragraph as they at some time consisted of a combination of parts from which a Handgun could have been assembled.
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Maybe you're right, but other courts have taken an approach to T/C that it is a manufacturers tax case and they prefer not to allow the rule to extend to buyers. Additionally, in most states, don't they require licensing of guns converted from rifle to pistol? So the grey line still exists. In NY, it would be a felony to possess the pistol parts in addition to the receiver if you had not already registered the receiver as a dedicated pistol. Another scarey proposition is one i found in another case, where a man had a folding stock ak47. In that case, he was convicted of having either an SBR or pistol because the court would not add the length of the stock in its extended position! The court said that they had to measure it in its closed configuration. They convicted. I can find the case if anyone is interested, but that info is off the top of my head.
Link Posted: 4/14/2002 2:45:58 PM EDT
Originally Posted By Imbroglio: It is CONSTITUTIONALLY LEGAL to own whatever weapons one wants.
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That is the only thing that matters.
Link Posted: 4/14/2002 8:36:44 PM EDT
Link Posted: 4/14/2002 9:06:58 PM EDT
And the reality is that Kent probably *did* own it just for the cool factor and thought it would be fun to shoot a SBR- never thinking that it could happen to him. Just goes to show that when they go to court on these things, so much more *doesn't* matter than does.
Link Posted: 4/15/2002 10:59:14 PM EDT
[Last Edit: 4/15/2002 11:00:45 PM EDT by Blaze-Of-Glory]
Originally Posted By Imbroglio: It is CONSTITUTIONALLY LEGAL to own whatever weapons one wants.
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I'm with you. The real question is: How should one respond to a criminal who violates the Constitution?
Link Posted: 4/15/2002 11:09:43 PM EDT
Originally Posted By Blaze-Of-Glory: The real question is: How should one respond to a criminal who violates the Constitution?
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Generally, we vote for them.
Link Posted: 4/16/2002 2:14:04 AM EDT
It is A PRETEXT for Confiscation. ^[size=1] [url]www.cures-not-wars.org/[/url] Truth Will Liberate Earth. [url]www.RKBA.org/antis/hci-master[/url]Allege 1993 [b]feinstein/hci[/b] master plan for TOTAL Gun Confiscation Dis-Armament. [url]http://www.DigitalAngel.net/[/url]Revelation 13:18 ID-GPS-MONEY Implant Micro-chip Never Again, Never Forget Seek the Truth , Liberate Your Mind We Are At WAR [/size=1] FIXED BAYONETS VX
Link Posted: 4/16/2002 7:18:48 AM EDT
Theoretically, I believe the same things you guys do, however I wouldn't go building any Class III weapons based on my consitutional beliefs! I posted this as an advisory for all of you out there who might innocently own one and not know the danger of mere ownership.
Link Posted: 4/16/2002 12:32:35 PM EDT
I don't build Class-3's either; for me the choice is a practical one, not legal one. Of course it would be entirely legal for me to build a Class-3. (Who could possibly misunderstand the 2nd Amendment?) But in practice, this likely would result in a band of outlaws, wearing badges and black robes, attacking me. I doubt I would survive such an attack. Maybe the original question should have been, "If you possess a short barrel..., will outlaws attack you?"
Link Posted: 4/16/2002 3:41:53 PM EDT
Originally Posted By Blaze-Of-Glory: But in practice, this likely would result in a band of outlaws, wearing badges and black robes, attacking me. I doubt I would survive such an attack. Maybe the original question should have been, "If you possess a short barrel..., will outlaws attack you?"
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I'm not following...black robes, badges, outlaws?
Link Posted: 4/16/2002 5:21:34 PM EDT
Originally Posted By Minman72: I'm not following...black robes, badges, outlaws?
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Humans can dress up like judges and ATF agents, but the clothes don't make them a legitimate government. The Government is defined by the U.S. Constitution; anyone who acts in violation of the Constitution is therefore not a legitimate part of the government. So when I see a judge in a black robe saying "you are not allowed bear certain arms", I think to myself, this guy is not acting in accordance with the Constituion, so he's not a legitimate judge, he's just a guy wearing a robe. And when someone with an ATF badge violates the 2nd Amendment, I think to myself, this guy is not acting in accordance with the Constitution, so he's not a legitimate federal agent, he's just a guy with badge. I consider them all outlaws, since they violate the law of the Constitution. But I do what they say, because I'm afraid they will shoot me if I disobey.
Link Posted: 4/16/2002 5:34:24 PM EDT
Given an chance to answer, I would have to say "No." Not because of the actual issue of legality, but due to the enforcement policies and attitutes of BATF. Look at how many times they break into a house for a raid (with no-one home!) try to break people into "turning" for the ATF (ref: Randy Weaver - who wouldn't spy on Aryan Nation for ATF.) and the Byzantine regulations they keep passing and enforcing for NFA firearms. If you had a pistol lower ONLY, you should be OK. Remove the buttstock from an AR and leave the comp. tube and you will POSSIBLY be okeh. Have a SB Upper and an AR lower, and you are just waiting... I would even be willing to bet that having a pistol and a full-length AR would be grounds for aggressive prosecution, if ATF could have its way ("An assemblage of parts taht could be configured illegally...") I don't trust ATF - especially since they are in the business of enforcing illegal laws. I have given up trying to figure out what is legal or not with NFA firearms and grey areas - and I MAKE DAMN SURE to keep several copies of the paperwork for my NFA stuff (in cold storage) in several safe locations to prevent "misunderstandings..." FFZ
Link Posted: 4/16/2002 5:43:32 PM EDT
Given an chance to answer, I would have to say "No." Not because of the actual issue of legality, but due to the enforcement policies and attitutes of BATF. Look at how many times they break into a house for a raid (with no-one home!) try to break people into "turning" for the ATF (ref: Randy Weaver - who wouldn't spy on Aryan Nation for ATF.) and the Byzantine regulations they keep passing and enforcing for NFA firearms. If you had a pistol lower ONLY, you should be OK. Remove the buttstock from an AR and leave the comp. tube and you will POSSIBLY be okeh. Have a SB Upper and an AR lower, and you are just waiting... I would even be willing to bet that having a pistol and a full-length AR would be grounds for aggressive prosecution, if ATF could have its way ("An assemblage of parts taht could be configured illegally...") I don't trust ATF - especially since they are in the business of enforcing illegal laws. I have given up trying to figure out what is legal or not with NFA firearms and grey areas - and I MAKE DAMN SURE to keep several copies of the paperwork for my NFA stuff (in cold storage) in several safe locations to prevent "misunderstandings..." FFZ
Link Posted: 4/16/2002 6:03:48 PM EDT
and just how did kent get caught with a 13" upper?
Link Posted: 4/16/2002 6:04:47 PM EDT
Originally Posted By FreeFireZone: Given an chance to answer, I would have to say "No." Not because of the actual issue of legality, but due to the enforcement policies and attitutes of BATF. Look at how many times they break into a house for a raid (with no-one home!) try to break people into "turning" for the ATF (ref: Randy Weaver - who wouldn't spy on Aryan Nation for ATF.) and the Byzantine regulations they keep passing and enforcing for NFA firearms. If you had a pistol lower ONLY, you should be OK. Remove the buttstock from an AR and leave the comp. tube and you will POSSIBLY be okeh. Have a SB Upper and an AR lower, and you are just waiting... I would even be willing to bet that having a pistol and a full-length AR would be grounds for aggressive prosecution, if ATF could have its way ("An assemblage of parts taht could be configured illegally...") I don't trust ATF - especially since they are in the business of enforcing illegal laws. I have given up trying to figure out what is legal or not with NFA firearms and grey areas - and I MAKE DAMN SURE to keep several copies of the paperwork for my NFA stuff (in cold storage) in several safe locations to prevent "misunderstandings..." FFZ
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Ok, now this makes sense. I also believe the ATF is an illigitimate organization. I also believe that since the Bill of Rights is mostly about individual rights, it is sickening to see courts illigitimately pronounce restrictive gun laws as constitutional. Apparently personal opinion plays a bigger role than it should over logic and law. Anyway, I see this problem as an uninformed citizen owning something which has no capability to fire without additional parts, yet the mere possession of those parts is enough to convict with intent to use!
Link Posted: 4/16/2002 6:18:15 PM EDT
Before 1934 it was illegal to murder someone with a machinegun. Then mere possession of a machinegun was outlawed. Then possession of parts that can be assembled to make a machinegun was outlawed. Then possession of parts that CAN'T even be assembled to make a machinegun was outlawed (e.g., it's illegal to have an AR15 with an M16 hammer). The natural next step is to outlaw mills and lathes, because these can be used to make parts that can make guns that can murder people.
Link Posted: 4/16/2002 6:25:27 PM EDT
Sad how having a 4" CAR flashider could have saved this guy a lot of grief. As far as the Constitution goes, I won't depend on not being killed or incarcerated by anything written in it. It is so damn obvious that we don't live under the US Constitution anymore that it isn't funny! I don't really care what the 2nd Amendment says because it is quite obvious that the people who wield the power in this country interpret it any way they damn well please. Power comes from the barrel of a gun and when the ATF comes a knockin' you'd better have 50-100 friends waiting in ambush for them. Best of luck.
Link Posted: 4/16/2002 7:06:28 PM EDT
[Last Edit: 4/16/2002 7:10:06 PM EDT by TylerDurden]
How did this guy get busted? Anyone? I would like to build a SBR AR, but I don't want to get in trouble before I buy the freakin stamp. I have never had a felony, much less a "violent felony" - seems to me that there are much more dangerous individuals for the BATF to worry about than myself. Good topic here.
Link Posted: 4/16/2002 7:19:07 PM EDT
Originally Posted By TylerDurden: I would like to build a SBR AR, but I don't want to get in trouble before I buy the freakin stamp.
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ATF nonsense about NFA firearms can be found in this ATF-published document: http://www.atf.treas.gov/regulations/27cfr179.pdf Subpart E addresses the making of [NFA] firearms. Looks like you are to start by submitting a Form 1.
Link Posted: 4/16/2002 9:16:09 PM EDT
funny how adding a stock to a short barreled pistol somehow makes the same bullet fired out of the same short barrel more lethal. Hmmm........., but then the same thing could be said about adding a pitol grip to a "high" capacity autoloading shotgun. Its all about appearances. To think of being fined and going to jail, because your weapon looked "evil". Take off the stock or the pistol grip from that shotgun that will kill just the same and your OK. LIBerateallguns
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