Charged for NFA Violation

[DMF13]

ATF does have a later ruling saying that pistol to rifle to pistol is ok, but rifle to pistol is not ok because it would be a weapon made from a rifle.

Maybe, maybe not. You've oversimplified ATF Ruling 2011-4.

https://www.atf.gov/firearms/docs/20...stols/download

[joshs]

Maybe, maybe not. You've oversimplified ATF Ruling 2011-4.

https://www.atf.gov/firearms/docs/20...stols/download

Ok, I'll be more clear:

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel of 16 inches or more in length, and the parts are later unassembled in a configuration not regulated under the NFA (e.g., as a pistol).

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(4), is made when a handgun or other weapon with an overall length of less than 26 inches, or a barrel or barrels of less than 16 inches in length, is assembled or produced from a weapon originally assembled or produced only as a rifle. Such weapons must be registered and are subject to all requirements of the NFA.

I've always thought that this is an area of federal law that is likely to cause problems with the recent surge in AR "pistol" popularity. If an AR that was originally produced as only a rifle is turned into a pistol using a Sig brace or the like, then it would be an unregistered weapon made from a rifle according to Ruling 2011-4.

[Rich@CCC]

DMF13,
Not an argument, but a question.

To my untrained(no education in Law at all) ear, your thoughtful and well written scenario describing the legal aspect of "constructive possession" tells me that if I own an AR pistol and an AR rifle, that legally am in possession of an un registered NFA item as I would indeed be in "constructive possession" of the two items that constitute a contraband firearm regardless of my intent or their actual configuration. Further it also implies that there would be no legal defense against the charge. Is this correct?

[runcible]

Are y'all circling the terminology dance of conflating "constructive possession" with "constructive intent," the latter which often has the following referenced?

U.S. v. Wright, 991 F. 2d 1182
https://law.resource.org/pub/us/case...2.92-5335.html

...which itself references:

United States v. Woods, 560 F.2d 660, 664-665 (5th Cir.1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1452, 55 L.Ed.2d 497 (1978)
http://m.openjurist.org/560/f2d/660

[Mitchell, Esq.]

As lawyers, should we be doing anything constructive? I mean... isn't that a violation of the rules of professional responsibly or something?

[Tamara]

I've always thought that this is an area of federal law that is likely to cause problems with the recent surge in AR "pistol" popularity. If an AR that was originally produced as only a rifle is turned into a pistol using a Sig brace or the like, then it would be an unregistered weapon made from a rifle according to Ruling 2011-4.

Not to mention who knows how many T/C Contender and Encores that have been stripped and sold as bare receivers at gun shows over the years...

[joshs]

To my untrained(no education in Law at all) ear, your thoughtful and well written scenario describing the legal aspect of "constructive possession" tells me that if I own an AR pistol and an AR rifle, that legally am in possession of an un registered NFA item as I would indeed be in "constructive possession" of the two items that constitute a contraband firearm regardless of my intent or their actual configuration. Further it also implies that there would be no legal defense against the charge. Is this correct?

Rich,

Since the confusion in this thread is my fault, I started a whole new thread directly on the issue of constructive possession and firearms law.

To answer your question, as DMF13 pointed out, the question is not only whether you possess, whether constructive or actual, the requisite parts to make an NFA firearm, but also whether the things you possess meet the definition of "firearm" as provided in the NFA. In your scenario, you would be admitting to the possession element of the offense. If both firearms were in your direct control you would have actual possession, but if you otherwise had the ability to exercise control over the firearms you would still be in constructive possession of the firearms.

The second question would be whether what you possess is an NFA "firearm." A complete AR rifle and complete AR pistol, if both are in original configurations as produced and no other accessories that could be used for converting the firearms are possessed, should not be an NFA firearm according to ATF Ruling 2011-4 and the Supreme Court's holding in United States v. Thompson/Ctr. Arms Co., 504 U.S. 505(1992).

Please be advised that this is not legal advice and no attorney-client relationship is expressed or implied by this post.

[joshs]

But hey, maybe I'm wrong (although I seriously doubt it after dealing with this topic every day for over a decade). So fire up WestLaw, or whatever other system you use for your research, and find us a US Supreme Court decision, or a Circuit Court of Appeals decision that uses "constructive possession" in the manner which you originally claimed, and now wish to "defend." Find that case law that supports your stance you were writing about a few days ago, and I'll eagerly read, just like Kent.

Since the Supreme Court's decision in Staples v. United States, 511 U.S. 600 (1994), every prosecution under 26 U.S.C.A. § 5861(d) has required proof of possession with knowledge of the prohibited features of the "firearm." I initially misread the Kent court's discussion of the defendant's intent to use the parts as a "firearm" as an expansion of the Staples knowledge requirement. Instead, as I said earlier, I think it is a quirk in the application of the reasoning from a "making" case, TC, to a possession case.

[Dagga Boy]

I am curious for the legal minds what level of intent is needed on these federal NFA cases. Based on Rich@ccc's question the reality is most of us, even with legal SBR's combined at the same location with perfectly legal non NFA rifles you still have the necessary "parts" in possession, yet as long as everything is on the receivers it is supposed to be, or giving no indication of any level of intent to remove a SBR upper from a SBR lower to replace a rifle length upper on a non-NFA lower. What is the best course to avoid an issue. I have never seen or heard of any LEO taking stuff that is totally legal to make illegal stuff. Not saying "never", but would be rare. I just wonder if it's legal.



From the street cop perspective......total generalization, but here is my observations over a couple decades.

Highly educated gun owner who is very knowledgeable and works really hard to stay totally legal (most of the PF community and the gun folks I hang with) interact well with LE and will usually end up educating the cops, and this covers most cops. These folks will end up at the range with the cop gun guys, but can still run afoul with the prick or totally dumb ass LEO's. The prick cop cases tend to go away easily and the cops do look like asses.

Regular folks who are totally unaware. Usually involving total law abiding citizens with zero criminal history. These include the guy who took an AR 15 in to settle a debt before any bans and is simply clueless that it needed to get registered because they really are not gun folks. Folks traveling with no intent to run afoul of things or their plane gets diverted to NJ. These can go a couple ways. Prick cops....these are sad cases that end up as sort of tragedies because the cops are "letter of the law" right and some decent citizen ends up in a nightmare (mainly because they have nothing else to plea bargain or deal with)....also, in today's climate I understand non prick cops making the call to not exercise any discretion as they can get burned for trying to cut someone a break. The gun guy cops and those not afraid of the potential consequences will often use the situation to educate the offender and help them get to a legal status.

Third situation are the prick gun owner. Constantly running the razors edge of legality, try to use loopholes from the "internet" or other less than optimal source. Tend to push LE hard on their "rights", and then are shocked when they end up in the losing end of a pissing match. Often the cops are far better at application of Case law. These folks tend to enrage the prick cops and can end up winning due to the LE guy being out of their lane. When they run into a LEO with a deep understanding of this stuff (like many of the LEO's on this forum) will nail these guys to the wall.

Then we have straight up criminals....nobody cares. When you have a pound of dope with your gun, are a convicted felon, gang member, or general scumbag....all the cops hate you and will do you hard on gun cases. That is then undone by the Feds because often the cases involve minorities and when they get caught with illegal guns it's a "non-violent" crime and the President and DOJ now give them a pass.....pretty awesome how that works.

Now decide.....which do you want to be, and which kind of cop do you want.

[HCM]

Earlier in the thread there was some discussion about "Glock" being used generically for semi auto pistols like "Kleenex".

This seemed on point: