I was at a gun show yesterday, and a guy was considering an Eagle Arms lower. From the conversation, the guy was a bit confused about the pre/post ban requirements. Apparently he had a preban and a couple of preban uppers. Of course, the lower is a postban. After the dealer explained the fact that the extra preban upper couldn't go on the lower he was considering, the dealer proceeded to tell the man that he shouldn't even build the lower until he had a postban upper, because he could be prosecuted for intent to manufacture an assault weapon. The dealer made a comment to the effect that "if he were on the jury, that sounds like intent to me."

My thoughts were:

1. Sounds like BS to me, although erring on the side of caution may not be all bad.

2. With friends like that, who needs enemies?

Does anyone else have an opinion on this? BTW, the guy ended up buying the lower.

dont know bout the law,,but the gunshow dealer was jus lookin out for the guy, nuttin wronge with that..he couldve jus took his money and let it be his problem..i built my latest creation with a preban upper on a postban lower..but i immediately cut bayo lug off and had the muzzle brake welded on..so dunno

Actually, what the dealer said sounds right.  You can't put a preban upper on a postban lower.  If all you have in your house is preban uppers, then the ATF will assume that you intend on creating an unlawfull configuration.

MM

I agree; better safe than sorry. The comment that kind of burned me was the one the dealer made about being on the jury. Hey, lowers, uppers, all the pieces cost money, and take time to get. I can't really see any reason why you wouldn't get a kit with all of the parts, but what if you wanted to build from spare pieces laying around (how many of us have "spare parts" that we swapped out on another project)?

I guess I'd look at it this way--if the guy had the upper for a month and then went and bought the lower, that might demonstrate intent. If the guy bought the upper along with his rifle in 1990, he's obviously been using it, and that may not be intent. I guess it would just depend on the circumstance. The jury comment really rubs me the wrong way, though.

Anyway, thanks for the opinions.

Sounds very much like Minority Report to me.  I tend to doubt that you can be charged with the intent to break a law.  Seems charges would follow after you actually break the law.

Of course, a judge may view possession of a pre ban upper and post ban lower as adequate grounds for a search warrant.  But if agents show up and there is no illegal weapon just stacks of parts, then no law has been broken.

I'm not a lawyer but that's my $0.02

Actually, "constructive intent" has been successfully prosecuted many times in the past, but usually only with regard to machineguns.  Part of the reason for this is that ATF defines possession of all the parts required to build a firearm, in your personal control and together, to be a complete firearm in "knockdown condition"

The only way to negate "constructive intent" has been to have a legal way to use all of the parts in your possession, which doesn't exist with a complete postban lower, and no postban-legal uppers.  With at least one postban upper, the criminal constructive intent is negated because the owner can legally use the parts he possesses, and the court cannot intuit an illegal act of assembling the postban lower with a preban upper unless it's actually done.

[i]The only way to negate "constructive intent" has been to have a legal way to use all of the parts in your possession, which doesn't exist with a complete postban lower, and no postban-legal uppers. [/i]

So, a defensible position would be to state your intent to purchase a preban rifle and change the upper?  Of course, you'd have to have all your post parts as well (or the intent to purchase them).  You may have to prove that, I suppose.

So much for innocent until proven guilty.  Welcome to America.

I'm not busting anyones balls.  Except for the gov goons.

[rant]If possession of precision machined metal parts is considered "Criminal Intent", then maybe you should come and arrest my wife and I.  At this time, I am in possession of 1 liter of tequila and the keys to my truck. by using the "logic" of criminal intent, I should be arrested, tried and convicted of DWI.  My wife is in possession of two breasts and a vagina.  Does that constitute "intent of solicitation"? [/rant]

You guys can have your thread back.  I just needed to let off some steam.  Thanks for listening.

The "constructive possession" language in regards to the NFA and machineguns is correct. In [url=http://www4.law.cornell.edu/uscode/26/5845.html]26 USC 5845 et. al.[/url] the "firearm" is defined as the receiver and possession of parts to make that firearm "automatic" is enough to constitute a machinegun. See [url=http://www.law.emory.edu/11circuit/may99/97-8425.man.html]US v. Kent[/url]

However, there is no intent element to the AWB -completely different style of law.
[url=http://www4.law.cornell.edu/uscode/18/921.html]18 USC 921 et al[/url] states that violating the Assault weapon ban, the weapon is as assembled with the features.  I agree that the guy was probably looking out for your buddy's interests, AND I'd recommend storing the post-ban lower separately from the separate preban uppers until he can add a postban upper to it, but technically it isn't against the law to possess it, just to assemble it with what he has as they are currently (preban).

Related post in the legal section:
[url=http://www.ar15.com/forums/topic.html?b=1&f=6&t=182021]Can I legally own a pre-ban upper without yet owning a pre-ban lower?[/url]

Cheers, Otto

Attach a little tag to the upper (do not use until October, 2004.