NFA SBR question

[pdelcasino]

I'm in the process of building a SBR and my tax stamp application is pending. I have the lower and it's all engraved and otherwise legal. I'm building the rifle piece by piece.

My question is since the lower is what legally constitutes the "gun" but the upper is what makes it a SBR, when EXACTLY does the gun become operational and subject to the laws and purview of the BATF?

For instance, what if I had a fully functioning lower but no upper? Or an upper and lower without the bolt assembly or magazine? Since you can't technically fire the gun without a functioning and fully assembled upper, lower, magazine, and bolt assembly, at what point of assembly is it an official weapon? Do you need all four or just the lower or what?

I couldn't find any answer to this on here or the BATF website. Any answers would be appreciated.

[knight0334]

Once the receiver is registered as a NFA device it is a NFA device to federal law whether or not it is assembled, and no matter the barrel length, until you have it struck from the NFA registry. ....so, the moment your tax stamp is canceled on some ATF agent's desk is when it becomes a operational NFA device.

To PA law that receiver is just a receiver until you build it as a "firearm" or a non-firearm.

[GunLawyer001]

Actually, this falls within a quirk of the wording of the NFA. A machinegun receiver is a machinegun all by itself, but an SBR is only an SBR as long as it has an overall length under 26" or a barrel under 16". If you take the barrel off, you can cross state lines without notifying ATF, because the receiver alone does not fall under the purview of the NFA.

There's also a line of thought that you can take the upper off and the lower reverts to a Title I firearm, so you could sell it face-to-face without paying a transfer or notifying ATF; I STRONGLY recommend that any registered NFA firearm be treated like an NFA firearm until ATF has provable notice that you're permanently changed it back to Title I. Bu the statutes and case law do treat an unassembled SBR as though it's not an SBR at all.

ETA: See my revised and expanded remarks below.

[pdelcasino]

OK that helps. With the delay in my tax stamp (apparently the paperwork was lost for 2 months AFTER my check was cashed) I was beginning to worry that the upper would arrive before the tax stamp arrived. However, without the bolt assembly and mags and whatnot, I figure even if the upper did arrive, it'd be difficult to make a legal argument that I had a functional SBR prior to my tax stamp arriving.

[mojo]

Is your lower complete or is it still stripped?

Do you have any other ARs?

If you have other ARs and/or your lower is complete with the buttstock, I would not feel comfortable with a short upper in my possession. With or without a complete BCG. That's just me though.

[GunLawyer001]

OK that helps. With the delay in my tax stamp (apparently the paperwork was lost for 2 months AFTER my check was cashed) I was beginning to worry that the upper would arrive before the tax stamp arrived. However, without the bolt assembly and mags and whatnot, I figure even if the upper did arrive, it'd be difficult to make a legal argument that I had a functional SBR prior to my tax stamp arriving.

That's a separate issue from whether the registration makes it an SBR, so let me amend my earlier answer.

If it's registered as an SBR but you don't have the short upper, it's not treated as though it's an SBR for most purposes.

HOWEVER, if it's NOT registered, but you have the lower and the only upper in the house that would fit it is a short upper, then you have constructive possession of an SBR.

What I recommend to people if they're going to own 1 or more AR rifles and also have more shorty uppers than they have registered SBR lowers, is to buy an extra, virgin, never-assembled lower and make a pistol, just to park the short upper on. This works for pending SBR Form 1's, it also works for registered SBR's where you have a couple different short uppers.

It's counter-intuitive, but the NFA treats an unassembled-but-registered SBR differently than it treats an unassembled--but-unregistered SBR.

[pdelcasino]

That's a separate issue from whether the registration makes it an SBR, so let me amend my earlier answer.

If it's registered as an SBR but you don't have the short upper, it's not treated as though it's an SBR for most purposes.

HOWEVER, if it's NOT registered, but you have the lower and the only upper in the house that would fit it is a short upper, then you have constructive possession of an SBR.

What I recommend to people if they're going to own 1 or more AR rifles and also have more shorty uppers than they have registered SBR lowers, is to buy an extra, virgin, never-assembled lower and make a pistol, just to park the short upper on. This works for pending SBR Form 1's, it also works for registered SBR's where you have a couple different short uppers.

It's counter-intuitive, but the NFA treats an unassembled-but-registered SBR differently than it treats an unassembled--but-unregistered SBR.

Hm....now I'm kind of confused. Regarding the last poster. I only have one lower, it is complete, and I'm only intending to get one SB upper.

What I don't understand is precisely at what point does constructive intent become possible (if there IS a precise point). So if I have my lower, and the upper arrives before my tax stamp, but it's an INCOMPLETE upper without a bolt assembly, how can that be constructive intent if the gun can't fire anything?

Or what if I have my lower and just the short barrel arrives before my tax stamp? Or I have my lower and only the front handguard and bolt assembly arrive before my tax stamp? Mainly my question is does the upper have to be COMPLETE to qualify the owner for constructive intent?

In any of these cases the owner does not have a functional weapon. Yet can the case for constructive intent be made BEFORE the weapon is functional? If so, is there a parts list or something like that which states which parts you can legally possess before having a tax stamp and which you cannot?

[GunLawyer001]

Hm....now I'm kind of confused. Regarding the last poster. I only have one lower, it is complete, and I'm only intending to get one SB upper.

What I don't understand is precisely at what point does constructive intent become possible (if there IS a precise point). So if I have my lower, and the upper arrives before my tax stamp, but it's an INCOMPLETE upper without a bolt assembly, how can that be constructive intent if the gun can't fire anything?

Or what if I have my lower and just the short barrel arrives before my tax stamp? Or I have my lower and only the front handguard and bolt assembly arrive before my tax stamp? Mainly my question is does the upper have to be COMPLETE to qualify the owner for constructive intent?

In any of these cases the owner does not have a functional weapon. Yet can the case for constructive intent be made BEFORE the weapon is functional? If so, is there a parts list or something like that which states which parts you can legally possess before having a tax stamp and which you cannot?

ATF is confused as well. Up until the Thompson Center case, ATF viewed the possession of a short barrel and a complete rifle as constructive possession of an SBR. The Supreme Court smacked them down, and pointed out that the definition of an SBR requires the gun "having" a barrel under 16" or an OAL under 26". The USSC emphasized "alternative lawful uses" of the parts.

I'm a conservative sort of lawyer, so I recommend the safe zone. I believe it's safe if all short barrels in your possession are installed on pistols or on registered SBR's, or if you don't own any other rifles that the short barrel would fit, or if you "own" a short barrel but it's being held by a third party who has instructions not to give it to you until your Form 1 comes back approved.

Some people want to push the envelope with registered SBR's, but the gap between the prosecutorial treatment of registered SBR's with removed barrels, and unregistered rifles with unattached barrels, is uncertain.

[mojo]

I would be worried if my lower had a stock and I had an upper and a short barrel. The HGs, BCG, etc wouldn't matter to me. Especially something like the HGs.

Short Barrel + Upper Receiver = Bad if you had a lower that was built.

This is just my opinion. Not a lawyer nor an expert.