If someone has a short upper and only rifle lowers (no SBR or pistol lowers), then this is a problem because the only legal configuration for that upper is an unregistered SBR.

However, consider the following:

short upper
SBR lower
rifle lower

There is a legal configuration for the short upper, namely, mating it to the SBR lower (and vice versa). But there would be no legal configuration for the rifle lower - the only available configuration is an unregistered SBR.

Is that a problem, or do the rules around constructive intent only pertain to uppers/barrels and not to lowers?

The rifle lower staying as a lower is a legal configuration in and of itself. It is a firearm regardless of what is attached to it.

There is no such thing as "constructive intent", the term you seek is "constructive possession".

If you have a short bbl upper and no legal configuration with your other AR's.....you are in constructive possession of a short barreled rifle.
If you have a registered SBR, that short bbl upper could be used with it. You are not in constructive possession as you already have a legal SBR.

For example:
You have a 11.5" AR upper and a single AR rifle with 16" bbl...........that's constructive possession of an SBR.
You have a 11.5" AR upper, a ten AR's with 16" bbl's and a stripped AR lower receiver.........not constructive possession. (because the 11.5" could be built into a pistol)


Now the fun stuff........
If you build an AR pistol FIRST, you can then reconfigure it as a rifle, then later reconfigure as a pistol (and back and forth). You just can't assemble a shoulder stocked AR with a barrel of less than 16" unless you are in possession of a tax stamp. That's why its always a good idea to build out your AR as a pistol first.

that's not his question.
Look up "constructive possession".

Thanks for the clarification re: constructive possession.

The examples you provide are ones that I am familiar with - essentially can a short barrel in your possession be built into a legal configuration.

I'm specifically asking about the situation where the only available assembled configuration for a rifle lower is as an unregistered SBR because there are no >= 16" barrels to mate with it.

Actually, that is my question, and @vellnueve's answer goes to the flaw in my original question. When I was thinking of legal configuration, I was thinking of a functioning firearm. But whether it is capable of functioning as configured is not the NFA's definition of a firearm. In other words, that rifle lower is a firearm in and of itself. And that firearm is legal. So it doesn't matter if I have a 16" barrel to go with it.

So if I'm understanding the logic correctly, the reason we look at barrels from the perspective of the firearms that barrel can be a part of is because the barrel is not a firearm in and of itself. Therefore, it must be capable of being assembled with other parts in one's possession into a legal firearm whether it's a rifle, a pistol, or a registered NFA firearm. Lowers don't get the same analysis because they are firearms in and of themselves, and as such, are legal regardless of which, if any , barrels are in one's possession.

That's exactly his question. Read.

If you have a complete AR lower with a shoulder stock and the only upper you have is less than a 16" bbl............you are in constructive possession of an SBR.
(and that complete AR lower w/shoulder stock still transfers as "Other firearm" on the Form 4473.

That AR lower with shoulder stock is a firearm. So the answer to the question of whether there is a legal configuration possible for that lower, the answer is "Yes".

Your answer seems to assume that the only possible configuration for the lower as a firearm is mating it to the short upper. But if I follow the NFA logic of what constitutes a firearm, then while mating it to the short upper is a possible (and illegal) configuration, it is not the only possible configuration.

I know that it's perfectly fine to remove that shoulder stock from the complete lower when you buy it and make a pistol.....that's why I wrote "complete AR lower with a shoulder stock and the only upper you have is less than a 16" bbl............you are in constructive possession of an SBR."

What OTHER possible configurations can you do with an AR lower with shoulder stock and a barreled upper of less than 16".......that does not result in an SBR?

If I understand NFA/ATF logic correctly, the other possible configuration is the AR lower with shoulder stock . . . by itself. It's a firearm, and a legal configuration of a firearm.

You must have a way to legally use all of the pieces and parts in your care, custody, possession, or control.

If every part you own can be combined with another part to make a legal firearm you are GTG.

If the only way to utilize a part would result in an unregistered NFA item then you are in possession.

The legal theory is constructive possession, but the charge is "possession."

Machine Guns and silencers have some unique requirements, I'm not addressing those in my statement above.

Uh, no.

Imagine a Glock pistol.......a wholly legal firearm by itself.
But a shoulder stock sitting in the safe with it?


That's what is called constructive possession of a short barreled rifle. It doesn't even have to be attached.

Is this per the NFA, court ruling or ATF interpretations? Can you point me to the source?

I'm wondering what the exact language is - i.e., is it every part can be combined with another part to make a legal firearm, then by virtue of the lower being a firearm, it's a legal firearm in and of itself. On the other hand, if the language is referring to every combining with another part to make a functioning firearm (i.e., one capable of firing a projectile), then the hypothetical I describe is no bueno because the only possible combination for the rifle lower is an unregistered SBR.

Interesting example. Clearly by your interpretation, this is illegal. By my interpretation, it's also illegal because there is no legal way to combine that Glock-specific shoulder stock into a legal firearm (assuming no stamp for the shoulder-stocked Glock).

To analogize it to my hypothetical, let's say you have a Glock shoulder stock and two Glock pistols, one of which you have a stamp for. So possession of the stock is fine. And possession of the non-stamp Glock is also fine, even though an illegal configuration is possible, because that illegal configuration is not the only possible configuration for either the stock or the non-stamp Glock.

I think you will agree that this scenario (stock, stamp Glock, non-stamp Glock) is legal. The only difference between this scenario and my original scenario is that the rifle lower, while a firearm, is not a functional firearm, while the non-stamp Glock is a functional firearm. Hence my earlier question as to whether the language of the statute, court ruling or ATF interpretation refers to the constituted firearm as being capable of firing a projectile.

If the parts have to combine into a functional firearm, then clearly I'd need to maintain at least one >= 16" upper in order to keep the rifle lower. But if functionality of the firearm isn't a requirement, then it would seem I can keep rifle lowers, short uppers and at least one SBR lower.

The practical reason for my question is I don't have much use for my 16" upper. I'd like an 18" or maybe even 20" upper, but I'm in no rush on that. So I'm trying to figure out if selling the 16" upper today (while keeping the rifle lower) and buying a longer upper next year is kosher. Plus I'm also curious as I've never seen discussion of the constructive possession implications for this particular group of parts, mostly because most people don't find themselves in this situation, but with the morass of the NFA and ATF rules, every step is a potential unintentional federal felony (and if I'm going to go to prison, I at least want to commit a real, intentional crime not some unintentional and ignorant arrangement of parts in my possession).

...

SCOTUS - Thompson/Center vs. US. I think it was Souter who wrote the section of opinion that determined when you had a taxable configuration. Since then other courts as well ATF have issued opinions clarifying what SCOTUS wrote.

https://en.wikipedia.org/wiki/United_States_v._Thompson-Center_Arms_Co.

Now I'm confused as to your position on this.

You agree that the scenario of stock, stamp Glock, non-stamp Glock is legal.
You think the scenario of short upper, SBR lower, rifle lower is illegal via constructive possession.
You think that functional/non-functional has no bearing.

The only difference I see between the two scenarios is that a non-stamp Glock is both a firearm AND a functional firearm, while the rifle lower is only a firearm - it is not a functional firearm by itself.

What difference do you see between these scenarios that drive your conclusion that the first is legal and the second is constructive possession of an unregistered SBR?

Didn't get much sleep last night, so I might be being dense, but it seems you are saying two different things about the collection of short upper, SBR lower and rifle lower. For the sake of clarity, what is your take on this particular collection of parts?

You have a legal configuration...the short upper and the registered SBR lower. I don't know how it could be any clearer, sorry.

Yes, I'm aware that a short upper and registered SBR lower is a legal configuration - after all, that's why I paid for the $200 tax stamp.

What about the rifle lower (with stock)? Again, to clarify, there are three items in this collection - short upper, SBR lower and rifle lower (with stock). There is no >=16" upper in this collection.

You asked for Case Law, I gave it. If you had read it your question would be answered.

1. Do you have a legal configuration for your short upper? Yes.
2. The end.


If you didn't have the registered SBR lower, then you are in constructive possession of an NFA firearm.

Thanks for the clarification.

I feel like I've been on a wild goose chase ever since your post much earlier in this thread:
Glad we're all on the same page.

I read the wiki. Didn't seem to provide a clear answer. Tracked down the actual opinion, but haven't had a chance to read it yet.

LOL. I meant the "wiki page".

I provided a layman's summery of the law in post 10.

You asked for a citation.

RenagadeX provided the citation to Thompson Center v US which is the basis for my post.

Read the case.  Stop posting until you read the Supreme Court decision.

It is a short read.  You don't even need to read the dissent if you don't want to.

Then if you have questions come back and ask.

This is getting silly.

No, you can't possess an unregistered lower with a shoulder stock, and a "short" upper if you don't have a Title I upper.  You would possess a lower that can not be assembled into any configuration other than an unregistered SBR.

IANAL, that is just my personal opinion.

How exactly in this made up, totally fictional, scenario did you come to have possession of a "rifle" lower as a stocked lower is NOT a rifle unto itself?