Barrel legality

What is the current legislation regarding possessing a 10.5" barrel, not assembled in a receiver? I have several AR rifles (non-sbr) at home. My intent is to slowly build a 10.5" pistol. I just want to know if I can get in any trouble by possessing the barrel. TIA!

Do you have a pistol lower receiver? if so than you're fine, if not I would definitely hold up on getting a barrel.

No, do not have a pistol lower

If all you have is the barrel and no other upper parts, you're fine.

If you have a complete system with a pistol extension tube, you're fine.

If you have rifle lowers readily at hand and an assembled short barreled upper
the ATF can consider your intent to assemble it into an NFA item without a tax stamp.


Just buy a pistol extension tube, slap it on a lower and enjoy the short barrel on a pistol
until you get your stamp back.

-Enjoy

Buy a stripped lower before the bbl. My $.02.

Gig 'em,

backbencher

JMO but you can buy the barrel before the lower. It doesn't matter.

Just make sure you have a legal way to assemble all your other non-SBRs and you're fine. Possessing a short upper is not illegal. Making an unregistered SBR is. To think that you're going to get arrested for having a short upper next to several assembled 16"+ ARs is just being paranoid. By the same logic, you could get arrested for owning a hacksaw along with a complete, perfectly legal AR.

We have a lot of threads about people worried over "constructive possession", but I've yet to see a case in which is was used to charge someone with an unregistered SBR. It has been used once or twice to charge someone with possession of an unregistered machinegun, but I don't believe you have anything to worry about with short barrel rifles.

Again, just my opinion, I'm no lawyer or anything.

The problem with that line of thinking is that there's legal ways to use your hacksaw. If all you have is rifles, and you have a 10.5" barrel laying around, that's not a good thing because the only thing you could do with that barrel is an illegal thing.

Just buy the other stuff before the barrel. The critical "other stuff" would be a lower with a pistol buffer tube. The problem you run into is having parts that you can't use in any legal manner.

You don't have to have a specified use for an item for it to be legal to possess. It's perfectly legal to just own a 10.5" barrel. The law regulates the configuration of completed firearms. To think that someone's going to get arrested for owning several legal firearms and 1 barrel that they're not using is being paranoid.

I've brought the issue up in several constructive possession threads and have never seen any case law or sources on how this idea started or why it has so much credibility. Until I see some type of case law or ATF letter, I'm chalking it up to a myth. It's just something that has carried over from a case on machine guns and has spread to incorrectly cover SBRs and other NFA items.

I agree that it's perfectly legal to own a short barrel. But owning a complete AR-15 and to have a short barrel laying around is not legal in my understanding, because the law does not only regulate the configuration of completed firearms; it also regulates things which are easily converted into an illegal configuration.

I'm also not saying anyone has ever been prosecuted for it, and the odds are that nobody has. However, I don't think it's advisable to do.

If you have all the parts for an AR-15 laying on a table, but you have two barrels, one of which is 16" and the other is 10.5", that's not legal without registration. The same would apply even if the rifle is assembled from those parts and a 10.5" barrel is laying next to the rifle.

There's no law that regulates things "which are easily converted into an illegal configuration". Such a law does not exist. You can read all the laws you want and nothing states that it's illegal to have the parts to readily assemble a short barreled rifle.

Where the constructive possession "myth" (IMO) has come about, is from machine gun prosecutions in which people have been charged for having an unregistered machine gun, under the premise that having the parts to build a complete machine gun constitutes possession of said machine gun. It's important to note the difference here is that noone is being charged with having the parts, they are being charged with actually having a complete and functional unregistered machine gun as if it were already assembled. "Constructive possession" or "constructive intent" as many have called it, is not a criminal charge. It is an argument used by prosecutors to bring about criminal charges for possessing an item illegally, even though it's in a "take-down" state.

This is why I believe the constructive possession claims related to SBRs are nothing to worry about. Machine guns, in the eyes of the ATF are very different from other NFA items, given that regulations on building them and transferring them are so much stricter, possession of parts is treated differently, and the old "once a machine gun, always a machine gun" determination from the ATF. It's very hard to make the claim that SBRs are held to the same standards as machine guns when it comes to possessing a barrel that's perfectly legal to own.

Again, I'd love to see case law or an ATF letter than proves what is actually correct and legal, even if it means admitting I'm wrong. I just don't believe that a case can be made for constructive possession when it comes to SBRs.

All the parts to readily assemble a short barrel rifle = a short barrel rifle.

Just because it's in pieces doesn't mean it's not a short barrel rifle in the eyes of the law.

I think this is true to an extent. Although they are not looking for people with parts. Now if you, lets say, get caught with a pound of meth and they also find your parts to assemble an unregistered SBR....your f*cked.

Yes it does. That's exactly what it means. The ATF has made it extremely clear that a SBR only exists when the firearm is assembled in an NFA configuration. That's why you can take a SBR upper off a lower, put a 16" upper on, and it becomes a Title 1 firearm. That's why you can take an upper off a registered SBR lower, and sell the lower as a standard stripped lower. Without a short upper on the firearm, it is not a short barreled rifle, it's just a lower (or rifle, or firearm).

It's pretty hard for the ATF to state that an SBR is only made when it's assembled into a complete gun, yet an SBR is also made when you own all the parts for the complete gun. That's no grey area, that's a complete contradiction.

I forget who the case was against but ATF DID infact convict a guy of posession of an unregistered SBR many years ago. The man in question posessed a legal Colt SP-1 rifle and an 11.5" upper.

Perhaps Tony K remembers this case and can shed some light on it?

Unless you still have the short barrel handy.

Here's what the ATF says.

"Q: Does the installation of a barrel over 16 inches in length (SBR) or 18 inches in length (SBS) remove the firearm from the purview of the NFA? If so, is this considered a permanent change?
Installation of a barrel greater than 16 inches in length (SBR) or 18 inches in length (SBS) will remove the firearm from the purview of the NFA provided the registrant does not maintain control over the parts necessary to reconfigure the firearm as a SBR or SBS."

Which proves exactly what I'm saying. Yes, the ATF states that the SBR is "made" when it's assembled into a complete gun. However, having all the parts to assemble it is not legal unless you have an approved form.

I believe the context of that FAQ is referring to permanently removing the firearm from the NFA registry. Otherwise, you couldn't remove the short barrel, put on a 16"+ upper, and travel inter-state with a firearm, as it would still be a SBR, because you still "maintained control" over the parts necessary to convert back to an SBR. Other FAQs and statements issued by the ATF have stated the exact opposite: Removing the NFA upper also removes the weapon from the purview of NFA regulations and allows the owner to travel interstate without any issues.

If your quote is referring to cases of constructive possession and potential charges of possessing an unregistered SBR, then I'd like to see the ATF address why this conflicts with swapping a 16"+ upper onto the gun. The two situations are contradictory.

it means that as long as you have the parts to make it an SBR it is viewed as one. traveling interstate with a 16" upper is perfectly fine as long as the shorty is not with you/under your immediate control. If I take an SBR lower with 16" upper from VA to WI and leave the shorty upper in VA I don't have the means to make it into an SBR (unless I had some freakishly long arms). How about one of us email ATF and get a clear answer from them as to what they would think of it all? I did about a week ago and am still waiting to hear back from them. I'm with GP on this until I hear otherwise.

You have a dangerously uninformed view of the law in this regard. A wealth of case law establishes clearly that possession of a disassembled short barrel and a compatible rifle is possession of short barreled rifle. Proper NFA registration, presence of another compatible NFA registered firearm, presence of a compatible pistol receiver are all mitigating factors in whether or not this is an NFA violation or not.

These are all NFA-related constructive possession cases.

US v Thompson Center Arms Co.
US v. Drasen
US v Kokin
US v Zeidman
US v Endicott
US v Shafer
US v Woods
US v Lauchli

And there are many more...

Pay particular attention to Zeidman, which has the closest applicability to the OP's question. This case affirms that a Browning High Power pistol in one drawer of a dresser and an unattached, compatible shoulder stock in another drawer can legitimately lead to a conviction for possession of an unregistered SBR.

I know how this decision would pan out in todays broken justice system, but it is not correct or proper to use case law precedent. Past decisions are not always correct and therefore shouldnt be used to decide new ones.

No.

Precedent is a huge ingredient in any SCOTUS decision. SCOTUS cases and any lower court case in which SCOTUS affirmed are wholly appropriate to use as precedent. Read any of these decisions and you'll see the decision, whatever it might be, is heavily structured on precedent. Many if not most of the cases above are used in US v Thompson Center, which is the most recent case.

The United States Supreme Court disagrees with you.

Im sorry, but that is just not the correct way to approach all of law. Does it happen that way a lot? Yes. But past decisions are not always correct, or properly used in a case. I know what your saying, but case law precedent, as a concept is bogus.

This is only my opinion as i am not a lawyer.

In my opinion the easiest way to avoid the issue of "constructive intent to build sbr" while gathering parts to make a pistol or buying a barrel for a registeted sbr brfore the stamp because you "found a good deal on a used pistol upper" is to BUY A $20 PISTOL BUFFER TUBE!!

Just consider it cheap insurance against going to federal "pound you in the butt" prison. OP, obviously by asking the question first you want to be legal.

In my opinion, if you have an assembled >=16" ar and you buy a 10.5" barrel and also a pistol buffer tube it just shows intent to make a pistol, which is what you want to do. I would first buy the pistol buffer tube, then a stripped lower, THEN the barrel of choice. That orders of purchase would be the best to avoid a grey area.

This is only my opinion as i am not a lawyer.

To steal a line from Renegade X, "The United States Supreme Court disagrees with you".

Read US v Zeidman. Constructive Possession of an SBR.

Er, in Louisiana, you are correct. In the other 49 states that use English Common Law as a basis, that's how English Common Law works.

Gig 'em,

backbencher

Seeing as how everyone is arguing about it, look at it this way, are you willing to bet your money ($10,000 fine I think, maybe more) your freedome (10 years in prison) and the virginity of your ass hole on it? I sure as hell am not. My $.02, build the pistol reciever first.

Without a doubt the way to go.

So by the definitions of "constructive possession" that I read here often and hear just about everywhere, how does any dealer that sells lowers, stocks and short barrels not get charged with multiple counts of constructive possession?

In my somewhat frequent dealings with the ATF (type54 explosives permit) I have asked my agents about this topic and have been told by them all that I don't need a pistol buffer tube, that a rifle one is fine as long as I don't ever put a stock on it. Just what I have been told by them. As with many things ATF it seems to really depend on which one you are talking to and when.

The BATFE has ruled that certain firearms (including Ar-15) that are designed to be either rifles or pistols can be configured either way, at any time.

So you can own whatever length upper you want, even if you don't own a SBR lower. Just take the butt stock off and you have a pistol.

http://www.atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-2011-4.pdf

The BATFE does stipulate that the firearm must be made from a "kit" - i.e. a Bare Receiver.

The BATFE also states that parts must be "in close proximity" to configure such firearm as both rifle and pistol. - i.e. if you have a rifle lower and a pistol upper (but no rifle upper) you are in possession of an illegal SBR.

***Note: This ruling supersedes all previous ruling ***

Your question goes right to the heart of US v Thompson Center Arms Co.

In this case, SCOTUS established limits to constructive possession, specifically where there are pathways to both illegal and legal uses for the NFA-related part or parts in question.

We know that If you possess a Title I rifle and a compatible short barreled upper with no other mitigating factors, then you are in possession of an unregistered SBR. There is but one use for the short upper and that is to create an illegal short barreled rifle in this scenario.

But if you possess the Title I rifle, compatible short barreled upper and another compatible pistol receiver, then you have two pathways for using the short upper, one legal and one illegal. You can legally use it with the pistol receiver, but you cannot legally use it with the Title I rifle. SCOTUS established in Thompson Center that there is a presumption of legality that the short upper is used with the pistol receiver, not the Title I rifle. There is no possession violation here.

Title I dealers who sell both rifles, pistols and mutually compatible parts for each are protected by the very same mechanism. Though the parts found in a dealer's shop can be used either way, to assemble a legal or illegal gun, there is a presumption toward legality and constructive possession does not apply. Title II dealers, obviously, are licensed to possess NFA firearms anyway, so there is no issue.

ATF agents are not lawyers and cannot/should not try to give you legal advice. They are absolutely, factually incorrect in implying or stating that only complete assembled rifles can be considered SBRs. Decades of case law make this very clear.

Read United States v. Kent 175 F.3d 870 (USCA 11 Cir, 1999), he was found guilty of having an illegal SBR because he had a short barreled upper and only AR15 rifles.


Kent's conviction under Count Three for possession of a short-barreled rifle was based on a Colt AR-15 found in Kent's apartment. The weapon charged in Count Three was discovered in two pieces in Kent's apartment:(1) a lower receiver unit with the stock and trigger mechanism and (2) an upper receiver unit containing a barrel with a length of less than sixteen inches (the "short-barreled upper receiver unit”). The short-barreled upper receiver unit's flash suppressor had been welded permanently to the rifle barrel, and when law enforcement officials measured the rifle barrel "from the chamber end to the end of the flash suppressor,” they determined the length to be fourteen inches.


In Count Three, Kent was found guilty of possession of a rifle with a barrel length of less than sixteen inches, not registered in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). Section 5861(d) of the National Firearms Act ("NFA”) makes it unlawful for any person to "possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d). The term "firearm” is defined for purposes of § 5861(d) and the NFA in general as including, inter alia, "a rifle having a barrel or barrels of less than 16 inches in length.” 26 U.S.C. § 5845(a)(3). The term "rifle,” in turn, is defined as:


ETA: Jason Christopher Kent served 78 month for his mistake.

You need to keep in mind that ATF 2011-4 only applies to firearms that are originally configured as a pistol. Putting a short barreled upper on a firearm originally configured as a rifle will result in making a SBR regardless of whether or not it has a stock on it. Read the last paragraph of the ruling:

"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."

So just be sure you build a pistol first, then you can put a 16+ inch barrel upper and stock on it and legally have a short barrel upper as part of the "kit". Just never have the short barrel and stock on it at the same time.

Bare AR-15 (stripped) receivers are listed as "other" on BATFE form 4473.

Thus the receiver was originally produced as "other" by the manufacturer, so they can be both rifle or pistol interchangeably.

http://www.atf.gov/forms/download/atf-f-4473-1.pdf

All receivers and frames are listed as other on a 4473. The AR is no different here. But if the receiver is first assembled as a rifle, technically IAW 2011-4, it cannot be later configured as a pistol without making it a NFA firearm. It must be first assembled as a pistol. The Thompson kits (the basis of the ruling) were sold as a pistol and packaged with with a 16" barrel and a stock.

ATF 2011-4 :

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.

The wording "originally assembled" refers to parts assembled after they have left the manufacture. The wording "produced" means it left the manufacturer as a rifle.

Copyright © 1996 - 2013 :: AR15.Com LLC :: All Rights Reserved.
Any use of this content without express written consent is prohibited.