Armory Sponsor
Posted: 8/19/2008 6:21:20 PM EDT
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If we do not yet have our tax stamp can we purchase an upper and just sit on it and not put it together until we get the stamp.. I mean what is going to happen if I never truely take it out until I have the stamp. The reason is I like to buy stuff off the EE and if I see a good deal on something I want to get it instead of waiting and waiting for that stamp, and also I feel prices may go up as we get closer to the election even though it will not matter for a while (I feel least a year) on who is elected. |
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You will receive conflicting answers on this. Some will say that ATF looks at it from the "complete rifle" perspective (i.e., if you have parts for a complete rifle- SBR upper and lower -you are in violation of something and they can articulate "constructive intent", or some such business.) Others will say the if you own an AR-15 and even dare to possess the SBR upper without a stamp you will go to prison. Some will say that you are fine if you just keep them separate and never put them together. I know a ton of guys who have SBR uppers they purchased for past deployments in order to retrofit their M4's and none of them have gone to prison for not having a tax stamp before they ordered the uppers. It may be apples and oranges, but you get my point. I would bet that the ATF would give you all the same answers if you asked the question enough times. Punctuation edit. |
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How comfortable are you that LE will never have an opportunity/excuse to search your home? BATFE will tell you not to do it. The legal system has a theory called "constructive possession," which generally means that if you do not have a legal use for an item, the courts can assume you mean to use it illegally. Having a sub-16" upper without also owning a legal registered NFA Short-Barrelled Rifle, or a lower receiver registered as a handgun, leaves you open to such a prosecution. BATFE has convicted folks for this, and they are now doing time in federal prisons. As noted, one of the options if you want to take advantage of low prices on sub-16'' uppers is to buy an AR receiver sold as a handgun receiver. IMHO, it is cheap insurance against prosecution. |
FYI I am getting the stamp I just don't have it yet it. I mailed off form 1 and all the other paper work last week. I just wanted some opinions on the issue. Thanks |
Well you should have bought it and never posted about it on ARFCOM. Now the ATF is watching you!  I try to be paranoid when it comes to such matters. The ATF does not mess around. |
I have decided to wait not worth the hassle. Will get my BCG, rail system, charging handle and gas block and wait on the actual upper until god knows when. |
you'll be waiting for awhile, I sent my F1 & Trust info in the first week of July, I called a week ago and the lady that answered the phone said call back beginning of Sept you might be in our system by then. I've wanted to get my upper too, but I may have to get a pistol lower so I can enjoy it while I am waiting for the stamp, might be cool to have something short even if it is a pistol. I don't really need a 4th AR platform but who the hell cares. "He who has the most toys, wins"  
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She's being conservative. I sent in a few form 4s on July 2 and they went pending 10 days ago. |
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I don't want to disrespect anyone here because there are people that probably know more about this than I do, but I always hear about "constructive possession" used as a term for when a person posses two legal items that if put together make an unlawful item. This is what I found to be in most legal dictionaries for the definition of constructive possession. Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has knowledge of an object plus the ability to control the object, even if the person has no physical contact with it (United Statesv. Derose, 74 F.3d 1177 [11th Cir. 1996]). Does anyone know of a court case where some one was prosecuted and convicted for possession of 2 or more legal items that if put together were unlawful even though the two items were never combined? I know that there are some drug laws that if you posses several items used in manufacture of a certain drugs that can cause you all kinds problems, but in those laws it's spelled out that if you have item "A" and you have item "B" and item "C" that it's Prima facie evidence that you intended to posses item "D" when you combined "A" "B" "C". I was unable to find any cases where just the possession of two legal items were that were never combined were prosecuted. I know that it really shouldn't matter because I don't intend on walking that close to the line. I was just wondering because I hear it all the time. |
I am pretty sure guys have been put away by the ATF for that very situation. Well, at least the ATF didn't have to prove the two items were ever combined. Juries are not sympathetic to EBR owners. I can't cite you anything off the top of my head, but I do remember reading such cases. I'm positive it's occurred with MG parts, and wouldn't be surprised to hear that it's happened with a short barrel. |
Pending is after the check cashing. First they cash the check, then once the forms make it to an examiner you go pending and you are 'in the system.' At that point they can tell you the date you went pending. From there you either get approved or your door gets kicked in. Hope you don't own a dog. |
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Caveat: This does not mean you cannot end up in prison for doing these things. Anyway, my former CO was an ATF agent and he never displayed any concern for guys purchasing SBR uppers for their M4's. He was adamant in our conversations that unless you put yourself on the radar in a big way the small stuff wouldn't be an issue, such as the issues with the AWB and pre-ban modifications to post-ban firearms. He could cite examples to illustrate his point, and the guys they busted for the small stuff were VERY dirty with the big stuff in the first place (i.e., illegal MG's, claymore mines, C4, AT-4's, etc.). However, we're talking the ATF here, so YMMV...and probably will given enough exposure. |
| Yes you can own aSBR upper and have it stored somewhere else until you receive your stamp as long as they can't use it, i.e.- put it on a lower that they own. I have also heard of putting it into a safe deposit box or storage unit away for the lower. But once again I have never arrested anyone on a gun violation alone. It was always something else that just snowballed into a weapons charge. I have never went to a public range and asked for papers on a SBR or proof of 10 or more US parts and I can't think of anybody I work with doing so either. |
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This is a perennial question, to which there is no official answer. However, there probably is enough case law to deduce that so long as there is some way you can assemble a legal configuration form all the parts you have available, you are probably ok. Take a look at this. Its not directly about SBRs, but its the same principle, and the Supreme Court take the view that just because things can be put together in an illegal configuration doesn't make them illegal, so long as there is also a possibility of a legal configuration. It still gets gray when you start looking at one registered receiver and multiple SBR uppers. |
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I would suggest purchasing a pistol lower as well. Not only are they fun to shoot, but they can be built into a rifle as well, and transfered back to pistol configuration at a later time. As long as an individual owns one of these registered pistol lowers they have the ability to have a legal configuration for any length upper. With this ability constructive intent isnt a possible conviction and thus an officer would have to find an illegal assembly for there to be any issue with the law being broken. I actually have all of my lowers registered as pistols as they are more flexible and i can do more things with them. Its also nice to have the coverage from constructive intent as well. Pat |
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