Maybe, maybe not. You've oversimplified ATF Ruling 2011-4.
https://www.atf.gov/firearms/docs/20...stols/download
Maybe, maybe not. You've oversimplified ATF Ruling 2011-4.
https://www.atf.gov/firearms/docs/20...stols/download
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"Whom shall I send, and who will go for us?" Then I said, "Here I am. Send me." - Isaiah 6:8
Ok, I'll be more clear:
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.Originally Posted by ATF
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?
Last edited by Rich@CCC; 06-06-2016 at 07:50 AM.
TANSTAAFL
Managing Partner, Custom Carry Concepts, LLC
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
Last edited by runcible; 06-06-2016 at 08:14 AM.
As lawyers, should we be doing anything constructive? I mean... isn't that a violation of the rules of professional responsibly or something?
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.
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.
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.
Last edited by Dagga Boy; 06-06-2016 at 06:55 PM.
Just a Hairy Special Snowflake supply clerk with no field experience, shooting an Asymetric carbine as a Try Hard. Snarky and easily butt hurt. Favorite animal is the Cape Buffalo....likely indicative of a personality disorder.
"If I had a grandpa, he would look like Delbert Belton".
Earlier in the thread there was some discussion about "Glock" being used generically for semi auto pistols like "Kleenex".
This seemed on point: