AR Sponsor
Posted: 10/15/2010 1:31:14 PM EDT
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I have an opportunity to buy a complete pistol upper but the seller doesn't want to sell his lower because he's wanting to build another upper.
My question is: is it illegal to be in possession of an upper without a lower? If so, would I be legal to buy the lower and have it when I pick up the upper? Thanks.... |
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Many people will say that the ATF will consider you to be in possession of a SBR if you have the following combination...
1) a short barreled AR upper 2) any AR lower with a stock (even if it is currently attached to another upper) 3) no AR pistol lower The argument being that you could easily swap the uppers to make a SBR and you have not demonstrated any intent to possess a pistol because you don't have a pistol lower. I have not heard of any case where someone has been charged, let alone successfully prosecuted for such a combination, but the internet rumor remains strong. I know that the concept of possession in US legal tradition does not work that way and I think that any halfway decent lawyer could get you out of that jam in no time, but you may not want to take the risk. The BATF plays to win and federal criminal convictions come with very hefty penalties. This is all assuming of course that some law enforcement agency has reason (like a search warrant) to be going through you gun safe in the first place. You could buy a stripped lower for well under a hundred bucks with the intent to make it into a pistol and remove any concern about "constructive possession". |
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The way I've heard "constructive intent" described, was not having a way to use said item (in your case, a shorty upper) in a legal manner. Going by that; in your case, I could see it as a potential problem, should someone wearing a badge see it. Without a pistol (or virgin stripped) lower, or an SBR'ed lower......you have no legal way to use that shorty upper.
I'd do what MJL recommended. Get a stripped lower in your possession beforehand. (......and try not to have an unmounted stock laying next to it, when you get your pistol upper) |
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Quoted:
My question is: is it illegal to be in possession of an upper without a lower? Not if you do not currently own a pistol or virgin stripped lower to be used in a pistol lower build if you currently own rifles that the upper would fit. If so, would I be legal to buy the lower and have it when I pick up the upper?
Thanks.... Yes, that would be permissible. It is not internet rumor, just call the ATFE or read any of their letters. You MUST have a pistol (virgin stripped lower would qualify since there is no difference between a stripped pistol or stripped rifle lower) or SBR lower in your possession before you buy a shorter than 16 inch upper IF you own any rifle lowers that it would fit. |
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Quoted:
It is not internet rumor, just call the ATFE or read any of their letters. You MUST have a pistol (virgin stripped lower would qualify since there is no difference between a stripped pistol or stripped rifle lower) or SBR lower in your possession before you buy a shorter than 16 inch upper IF you own any rifle lowers that it would fit. I'm sure you are correct that the BATFE will express an opinion that possessing the components to make something illegal could be considered constructive possession of the illegal object. The difficult part for them would be actually prosecuting it without being able to show some kind of clear intent. It's possible that they've tried, but I've never heard of it. I think if you owned a rifle lower by itself and a short barreled upper by itself then it would be an easy case for them, but not so much if all your rifle lowers are attached to rifle uppers. You might also be screwed if a witness (or video) exists that saw you holding an SBR and then your were found to be in possession of the necessary parts without a legal way to assemble everything. Constructive possession usually comes into play when a person has control and knowledge of an illegal (or stolen) object, but not direct physical possession. An example would be a person possessing the keys to a storage locker full of stolen stuff, or drugs found in a car that a person was driving. Possession of the components required to make an illegal object could also be considered constructive possession, but it is more difficult to prove to a jury and usually only argued when the intent to commit a crime is very obvious or supported by other evidence. A decent lawyer can usually grab a jury's sympathy by pointing out that every person on the jury probably possesses the materials to make something that's illegal somehow. Also remember that the BATFE is primarily a law enforcement organization. In that role they don't make or interpret laws. They are just providing their opinion. Other lawyers or judges might think differently. I'm not arguing that anyone should try to push this issue. I still think you should get a lower first. Seriously, the BATFE isn't known for their leniency and a good portion of the public (jury members) think EBR's are even scarier when they have short barrels. I'm just arguing that this issue is not nearly as clear-cut as many people will claim it is. ETA: A quick google search came up with this document that appears to be official jury instructions for cases involving possession of unregistered firearms. Near the top are five points that need to be met in order to prove possession of an unregistered firearm. Our current argument is focusing mainly on the fourth point. The first two points are where it really gets difficult when we consider an AR upper by itself and an AR lower that is already attached to another legal upper. |
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if you want the upper and the deal can't wait make up a contract to sell and put the money in escrow- there are escrow services available for little cost or paperwork.
another possibility would be to do the transfer through an ffl, again deferring the completion of transfer to you. an ffl of the proper class can legally hold this item in his inventory this leaves him as the owner of record but assures him of payment. essentially, deal is done, but actual physical transfer can be deferred. the problem I see with discussion concerning potential legal liability in this thread is that it doesn't factor in the real problem if you get on the wrong side of the atf: they will try to break you financially atf lawyers are paid by us- thus, unlimited funds remember, in this country you are entitled to as much justice as you can afford. how much justice can you afford at $200-300/hr? |
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