AR pistol law confusion

[Guest nasty]

Guys, I have a couple general questions on legally building short barreled ARs.  Specifically I have (2) lowers already, one of which I would like to mate up to a 10.5 or 7.5" upper and be done with it.  Heres the details on the lowers..

 

The first was purchased as a fully assembled lower with parts kit, buffer, and 7 position stock assembled.

The second was purchased will all the same parts, just not assembled.

 

Can I use either of these in building a 10.5" barrelled AR (without a stock)?  Is there anything I need to be aware of?  Does it matter whether the lowers were transferred to me as rifle, pistol, or other?

 

There is so much conflicting info on this subject everywhere, I am thoroughly confused.

 

Thanks a lot

[Oh Shoot]

The law is clear. You can make a pistol out of any lower that was not first configured as a rifle.

 

A completed lower, even with a stock attached, is still just a receiver/lower, ie "other firearm", and is also to be transferred as such on a 4473.  It can't be a pistol without a barreled upper nor a rifle without same plus a stock attached.

 

Note that a used upper, even though since 2008 which should have been transferred as "other firearm" if done through FFL,  is still illegal to make a pistol from if it were first configured as a rifle in the past.

 

Not getting into "proof" or "likelihood of being caught" etc,  only that is the settled law as determined by SCOTUS in 1992, interpreting the USC that making a different type firearm from a legal rifle is illegal without the appropriate tax stamp.

 

In short, if neither of those lowers was ever first configured as a rifle, either can legally be made into a pistol. Once made into a pistol, it can go back and forth between pistol and rifle also. If first made as a rifle, must stay a rifle.

 

- OS

Edited March 24, 2014 by Oh Shoot

[Oh Shoot]

.....I think if either wasn't transferred as a complete
rifle, either is okay, ...

 

Note that while what a 4473 shows may be a clue, it is not definitive. If an FFL blows it on the form, that doesn't make something legal or illegal per se just because of what he designated.

 

Note also that before 8/2008, there was no "other firearm" choice even available on the 4473, but of course a lower from before that time is still either legal or illegal for pistol use based on it's first configuration, just like any other lower.

 

- OS

Edited March 24, 2014 by Oh Shoot

[Oh Shoot]

I knew you were more current than me on that law. :D I forgot, but what did it say before? Wasn't it

"other receiver"?

I found it. On section 29 it says "pistol,revolver, rifle, shotgun, etc". I remember one ffl putting other receiver.

That's what I was thinking of. It was the 2005 revision when I got my first one.

 

Yeah, question 18 is only three choices: long gun/handgun/other firearm (used to be long gun/handgun/both (for purchases of both, not that it was to made into both).

 

29 is more specific and has to be written in:

"Type (pistol, revolver, rifle,shotgun, receiver, frame, etc.) (See instructions for question 29)"

 

Point is though, if FFL muffs either or both parts, it doesn't legally make your Glock a rifle, or your 10/22 a shotgun, or your receiver (lower) a handgun or rifle, whatever,  just because that's what's on the 4473.

 

- OS

[Guest nasty]

Thanks guys.

 

Is it a bad idea to use the rifle buffer tube on a pistol configuration?  No stock of course, with a cover or sleeve?

 

Why are there people out there getting lowers with 'pistol only' engraved on them?

[Spiffy]

Thanks guys.

 

Is it a bad idea to use the rifle buffer tube on a pistol configuration?  No stock of course, with a cover or sleeve?

 

Why are there people out there getting lowers with 'pistol only' engraved on them?

 

Personally I think using a pistol buffer tube is a great way to keep yourself honest and what I would personally do. Which is why I don't own an AR pistol. It just removes all temptation.

[Oh Shoot]

Thanks guys.
 
Is it a bad idea to use the rifle buffer tube on a pistol configuration?  No stock of course, with a cover or sleeve?

 

Legal, but  be careful of having a stock along with it. Make sure you have a legal use for any stock in your possession, at home, or of course especially out and about, regardless of what type of buffer tube you have on it.

 

Btw, standard "pistol" buffer systems are same as carbine ones, pretty much same length and use carbine spring and buffer.

 
 

Why are there people out there getting lowers with 'pistol only' engraved on them?

 

Totally some kind of "feel good" move on part of the owner. No legal relevance in any state.

 

- OS

Edited March 24, 2014 by Oh Shoot

[Johnny Rotten]

That would be called constructive intent...

Lets say you have a standard ar15 with a 16" barrel and a SBR or a MG and have 3 different uppers 11.5",12.5",14.5" and maybe a M16 FCG, by owning the standard ar15 you are in possession of illegal parts....I would think the std ar verse a pistol lower would still have the same CI. 

[Oh Shoot]

That would be called constructive intent...

Lets say you have a standard ar15 with a 16" barrel and a SBR or a MG and have 3 different uppers 11.5",12.5",14.5" and maybe a M16 FCG, by owning the standard ar15 you are in possession of illegal parts....I would think the std ar verse a pistol lower would still have the same CI. 

 

Sorry, but you are quite off the mark on this.

 

First of all, there is no "constructive intent" charge, it's just a euphemism, and a poor one, as there is absolutely no intent required whatsoever. You have either made an NFA firearm or you have not -- although it's true you don't have to actually have pieced it together to have made one. "Constructive possession" is more accurately descriptive I suppose, but that's not an actual charge either. 

 

The test is simple:

 

"An NFA firearm is made if aggregated parts are in close proximity such that they ... serve no useful purpose other than to make an NFA firearm or convert a complete weapon into an NFA firearm".
 

It's not whether you can make something illegal, it's whether you can also make something legal with the same parts. Settled law by SCOTUS in 1992, not merely an ATF opinion. And extra parts are of course fine, if one can be used legally, each can be used legally.

 

It's even simpler than that sounds, look at a part or component among your "aggregated parts in close proximity" (and I suggest for safety that anywhere on your property is "close enough"):

- Is there an illegal config I could use this with?
- If no, cool.
- if yes, then
- is there also a legal config I could use this with?
- if yes, cool
- if no, don't have it

 

- OS

Edited March 24, 2014 by Oh Shoot

[RED333]

Sorry, but you are quite off the mark on this.

 

First of all, there is no "constructive intent" charge, it's just a euphemism, and a poor one, as there is absolutely no intent required whatsoever. You have either made an NFA firearm or you have not -- although it's true you don't have to actually have pieced it together to have made one. "Constructive possession" is more accurately descriptive I suppose, but that's not an actual charge either. 

 

The test is simple:

 

"An NFA firearm is made if aggregated parts are in close proximity such that they ... serve no useful purpose other than to make an NFA firearm or convert a complete weapon into an NFA firearm".
 

It's not whether you can make something illegal, it's whether you can also make something legal with the same parts. Settled law by SCOTUS in 1992, not merely an ATF opinion. And extra parts are of course fine, if one can be used legally, each can be used legally.

 

It's even simpler than that sounds, look at a part or component among your "aggregated parts in close proximity" (and I suggest for safety that anywhere on your property is "close enough"):

- Is there an illegal config I could use this with?
- If no, cool.
- if yes, then
- is there also a legal config I could use this with?
- if yes, cool
- if no, don't have it

 

- OS

The very reason I do not have an AR stock in my house.

Way to easy to put it on my pistol.

[Johnny Rotten]

Sorry, but you are quite off the mark on this.

 

First of all, there is no "constructive intent" charge, it's just a euphemism, and a poor one, as there is absolutely no intent required whatsoever. You have either made an NFA firearm or you have not -- although it's true you don't have to actually have pieced it together to have made one.

 

The test is simple:

 

"An NFA firearm is made if aggregated parts are in close proximity such that they ... serve no useful purpose other than to make an NFA firearm or convert a complete weapon into an NFA firearm".
 

It's not whether you can make something illegal, it's whether you can also make something legal with the same parts. Settled law by SCOTUS in 1992, not merely an ATF opinion. And extra parts are of course fine, if one can be used legally, each can be used legally.

 

It's even simpler than that sounds, look at a part or component among your "aggregated parts in close proximity" (and I suggest for safety that anywhere on your property is "close enough"):

- Is there an illegal config I could use this with?
- If no, cool.
- if yes, then
- is there also a legal config I could use this with?
- if yes, cool
- if no, don't have it

 

- OS

OS,

While I'm not filmier with the laws of AR pistols, my comments of CI were towards having a pistol AR15, extra stock and maybe another additional short barrel upper, while having at STD AR15. 

 

So if you have a legal AR15 pistol set up, can you install a 16" upper and a stock and be legal, then switch it back? my point is having the extra stock in your possession.

 

I'll look for a tech letter about parts and extra barrels, I know there is something about CI about extra parts and additional uppers.

[Oh Shoot]

OS,
While I'm not filmier with the laws of AR pistols, my comments of CI were towards having a pistol AR15, extra stock and maybe another additional short barrel upper, while having at STD AR15.

Perfectly legal. Everything you have could be used in a legal configuration. Nothing you have there could only be used in an illegal one. You could have 10 stocks, any number of any length uppers, whatever. The only way you could "make" an illegal NFA firearm in that situation would be to actually attach a stock to either lower while having a short barrel installed at same time.

 

So if you have a legal AR15 pistol set up, can you install a 16" upper and a stock and be legal, then switch it back? my point is having the extra stock in your possession.

 

A bit of a different question, but yes of course. A firearm that is first configured as a pistol may become a legal length rifle, and go back to pistol. A firearm that begins life as a rifle must stay a rifle.

 

Again, there is no "Constructive Intent". No intent is necessary, whether you actually assemble an illegal configuration or not.

 

- OS

Edited March 25, 2014 by Oh Shoot

[Oh Shoot]

Johnny, visual aids:

 

 

 

 

 

Both combinations of "aggregated parts in close proximity" are perfectly legal to be out and about with.

 

In each case, there is a legal configuration what each part may be used in. (in AR pic, the lower began life as a pistol, which is important).

 

Without the long barreled uppers however, you would be guilty under the test of making an NFA firearm, whether you actually used the short barrels and stocks at same time or not.

 

I should have thrown in a VFG in the AR pic too, as it would also be illegal without a long upper in the mix.

 

 

- OS

Edited March 25, 2014 by Oh Shoot

[Guest nasty]

So if I understand correctly, here is where we're at..

 

Having (only) an AR pistol in a safe, with a rifle stock and buffer tube laying beside them could be (or is) illegal, because that stock could not be legally added to a pistol.

 

Having AR pistols and full length rifles in a safe, with an extra rifle stock and buffer tube beside them is not illegal, because that stock could be legally swapped with the rifles stock.

 

amiright?

[Oh Shoot]

So if I understand correctly, here is where we're at..

 

Having (only) an AR pistol in a safe, with a rifle stock and buffer tube laying beside them could be (or is) illegal, because that stock could not be legally added to a pistol.

 

Having AR pistols and full length rifles in a safe, with an extra rifle stock and buffer tube beside them is not illegal, because that stock could be legally swapped with the rifles stock.

 

amiright?

 

Yup. Nothing you mention in the safe could be used only in an illegal configuration. Note pictures I posted as further explanation.

 

The "close proximity" thing is gray. How close, how confined? Dunno, nothing definite in case law.

 

Certainly if locked in a safe, I'd be sure I had legal use for everything in it, even though everything you owned in house would perhaps "count", but no guarantees.  And similarly, if all I owned was an AR pistol, regardless of buffer tube type on it, I wouldn't also have an AR stock anywhere on my property. Or a VFG either, unless the pistol is legally 26" or more in OAL.

 

And a "pistol" tube is not necessarily a guaranteed defense, if push came to shove, as "attachable" is not defined either -- gaffer tape would do it, eh? Maybe just bracing against tube "attaches" it, if they want to so say to make like miserable.

 

Certainly out and about, anything you'd have with you say on a range trip would surely be "close enough" I'd say, whether on person, at table, in car. And even though multiple stocks or VFGs would technically be legal to have with both a rifle and pistol, I wouldn't have an extra in that case, no since poking the bear unnecessarily IMO.

 

- OS

Edited March 25, 2014 by Oh Shoot

[Oh Shoot]

The reason such terms as "close proximity" and "attachable" and etc haven't been more precisely defined if because practically nobody has been prosecuted for what folks like to call "constructive possession" in 22 years except in the most obvious and egregious scenarios.

 

What you hear as per Johnny's first post is mostly an "internet ATF fear meme" that has been parroted over all the years, and at least since 1992 has had little to no basis in fact.

 

I'd posit that one's biggest possibility of hassle is simply from an uninformed local LEO who sees an AR pistol, especially one with VFG and/or the SIG brace that goes off half cocked on you for having a SBR or AOW.

 

But you DO need to be in compliance of the simple test I've iterated herein, don't get me wrong about that, okay? The possible penalty is too great to screw up on something easily understood and complied with, however slight the likelihood.

 

- OS

Edited March 25, 2014 by Oh Shoot

[Johnny Rotten]

Perfectly legal. Everything you have could be used in a legal configuration. Nothing you have there could only be used in an illegal one. You could have 10 stocks, any number of any length uppers, whatever. The only way you could "make" an illegal NFA firearm in that situation would be to actually attach a stock to either lower while having a short barrel installed at same time.

 

 

A bit of a different question, but yes of course. A firearm that is first configured as a pistol may become a legal length rifle, and go back to pistol. A firearm that begins life as a rifle must stay a rifle.

 

Again, there is no "Constructive Intent". No intent is necessary, whether you actually assemble an illegal configuration or not.

 

- OS

OS,

would you call this tech letter CI? while it doesn't apply to the OP, it does apply to extra parts, to be specific #4, remove the word MG and add SBR or AR pistol, I could be taking this all wrong way...

http://www.titleii.com/bardwell/atf_letter90.txt

Does this apply in a pistol situation?

[Oh Shoot]

OS,

would you call this tech letter CI? while it doesn't apply to the OP, it does apply to extra parts, to be specific #4, remove the word MG and add SBR or AR pistol, I could be taking this all wrong way...

http://www.titleii.com/bardwell/atf_letter90.txt

Does this apply in a pistol situation?

 

No, not same with pistol or SBR lowers.  If indeed that 14 year old ruling has not been superseded, it must apply only to machine guns. For sure you can have multiple short barreled uppers if you have SBR or pistol legal lower and regular AR rifles too.

 

If Dolomite_supafly doesn't see this, PM him to reply here, I think he probably knows the finer points re MG stuff, it may well be correct, yet could still fit under the SCOTUS test if all you owned was a MG, more than one short barreled upper, and a standard AR rifle.

 

But of course just having a virgin lower, or a lower first built as a pistol, or a SBR lower would surely seem to sidestep #4 in that letter if indeed it is still in force , as any of those three would have to suffice under other rulings for possession of additional short barreled uppers along with normal rifles, even if you do have a machine gun in the total mix.

 

Sometimes, ATF rulings are "correct" but "incomplete" and don't cover all possible variables related to the question. But admittedly certain full auto components and all suppressors are in a rarefied category as they are to my knowledge the only things that, unregistered,  are illegal to possess in and of themselves, no other parts of guns to actually use them required to be in violation.

 

- OS

Edited March 25, 2014 by Oh Shoot

[tnguy]

Personally I think using a pistol buffer tube is a great way to keep yourself honest and what I would personally do. Which is why I don't own an AR pistol. It just removes all temptation.

I didn't put the pistol tube on because the eventual aim is to have the receiver on a rifle. The stock is currently not even in the same county as the pistol.

[hkusp40cal]

Correct me if I am wrong and I may be, but I was told if you have a legal M16, then that can be used in almost any configuration since the receiver is already a registered class 3.   for example, if I have a registered m16 receiver I can slap any upper on and and be good (just can't add a suppressor without another stamp).

[Johnny Rotten]

Correct me if I am wrong and I may be, but I was told if you have a legal M16, then that can be used in almost any configuration since the receiver is already a registered class 3.   for example, if I have a registered m16 receiver I can slap any upper on and and be good (just can't add a suppressor without another stamp).

You are correct about the M16, if you had a RDIAS or HK sear pack and your host was shorter then 16", your host would have to be an legal SBR....

 

Found this yesterday....OS

 

 

Edited March 30, 2014 by Johnny Rotten

[Oh Shoot]

You are correct about the M16, if you had a RDIAS or HK sear pack and your host was shorter then 16", your host would have to be an legal SBR....

 

Found this yesterday....OS

 

 

 

Quite good overall, only a few carps.

 

Box 2: Hate the "constructive intent" term,  as absolutely no intent is required. "Constructive possession" is much better euphemism if you have to use one. Point being, you have either made an NFA firearm or you have not -- by having items in same area that have no legal config but an illegal one, you hae made one. Having only those two items in picture in your possession, you have absolutely made an NFA firearm under the ruling if they want to play hardball.

 

Box 9: Pistol lower immaterial, short barrel with stock illegal without SBR stamp, period. Maybe it's just clumsy wording there.

 

Box 10: correct, unless OAL is 26" or more, then not valid. Possibly chart was made before revised ruling in 2011.

 

 

- OS

Edited March 30, 2014 by Oh Shoot