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Old June 6, 2016, 03:59 PM   #1
stagpanther
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Another AR pistol mind-bender question

I've built them so have a pretty good grasp of the legalities--but here's a question the answer I'm not sure of:

I already have pistols which were correctly built by having the receiver designated as "other" and the very first incarnation was a pistol--meaning I can switch back and forth from pistol to rifle configurations legally as long as I have the original pistol parts.

Does this also mean I can build several different pistol upper configurations and use them on the same lower that "started life" for a unique pistol build?
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Old June 6, 2016, 04:18 PM   #2
shaunpain
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I'm not sure what you're asking here. Can you have multiple pistol uppers to use with one pistol lower? Yes. You can have as many uppers as you want in any configuration you please (no foregrips on the shorties).
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Old June 6, 2016, 04:28 PM   #3
Sharkbite
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Stag,

Yep, as long as you have ONE pistol legal lower you could have 100 different uppers to use on that 1 lower.

The only issue is if you had ZERO pistol legal lowers and even 1 pistol upper. Now the Feds can say the only use you had for that upper was to put it on an UNREGISTERED rifle lower, thus creating a SBR without the tax stamp

That is the basis of "constructive possession"
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Old June 6, 2016, 06:14 PM   #4
stagpanther
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Quote:
Stag,

Yep, as long as you have ONE pistol legal lower you could have 100 different uppers to use on that 1 lower.

The only issue is if you had ZERO pistol legal lowers and even 1 pistol upper. Now the Feds can say the only use you had for that upper was to put it on an UNREGISTERED rifle lower, thus creating a SBR without the tax stamp

That is the basis of "constructive possession"
I figured that was the case--and I assumed was implied in the way it's written--it's just that I don't remember seeing anything that expressly says you can switch pistol configurations as well.
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Old June 7, 2016, 02:44 AM   #5
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Quote:
Originally Posted by stagpanther
having the receiver designated as "other"
If a dealer marks anything besides "other" on the 4473 he's wrong.
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Old June 7, 2016, 03:12 AM   #6
Theohazard
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Quote:
Originally Posted by stagpanther
Quote:
Originally Posted by Sharkbite
Yep, as long as you have ONE pistol legal lower you could have 100 different uppers to use on that 1 lower.

The only issue is if you had ZERO pistol legal lowers and even 1 pistol upper. Now the Feds can say the only use you had for that upper was to put it on an UNREGISTERED rifle lower, thus creating a SBR without the tax stamp

That is the basis of "constructive possession"
I figured that was the case--and I assumed was implied in the way it's written--it's just that I don't remember seeing anything that expressly says you can switch pistol configurations as well.
Sharkbite is 100% correct, and it has nothing to do with switching pistol configurations. It simply has to do with whether you're in constructive possession of an SBR or not. Here is ATF ruling 2011-4 that addresses what constructive possession is.

Notice the two key points of that ruling: In order to be in constructive possession of an SBR you must have the parts to assembly that SBR and they must be in "close proximity" to each other with no other "useful purpose" for having them. The phrase "useful purpose" is pretty clear; if you have a short-barreled upper and just a regular rifle lower lying around, the only "useful purpose" for that short upper is to be installed on the rifle lower, making it an SBR. But if you also have a lower that could be used as a pistol, one could argue that you do have another "useful purpose" for that upper: It could also be used on your pistol lower to make a pistol.

There's no theoretical limit on how many short uppers would be required to surpass this "useful purpose" requirement. In theory, you could have one rifle lower, one pistol lower, and 1000 short uppers that were for that pistol lower. Since the pistol lower gives you another "useful purpose" for having those short uppers, ruling 2011-4 says you can't get in trouble for constructive possession.

But at the same time, having no other useful purpose isn't by itself enough to meet the requirements for constructive possession under 2011-4; the parts must also be in "close proximity" of each other. So you could have 1000 short uppers and one regular rifle lower and no pistol lowers or SBR lowers to give you a "useful purpose" for having those uppers, and you still wouldn't be in violation if no short uppers were in "close proximity" to the rifle lower.

Now, the real question is what does "close proximity" actually mean. Some people think it means in different rooms. Some think it means on different floors. Some think it means in different houses. But as far as I know, there are no court rulings or ATF determinations on what it means exactly. I once asked an ATF Industry Ops guy what "close proximity" meant, and he told me to ask a lawyer.
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Old June 7, 2016, 03:48 AM   #7
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Quote:
Originally Posted by stagpanther
I don't remember seeing anything that expressly says you can switch pistol configurations as well.
I realize now that my previous post might not have properly answered your question. The answer is that you can switch calibers and barrel lengths on all sorts of firearms; pistols, rifles, shotguns, SBRs, etc. For the most part, the only restrictions come when you want to switch your configuration to a different type of firearm. For example, you can make a pistol into a rifle, but if a firearm started off as a rifle you can't make it into a pistol.
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Old June 7, 2016, 05:43 AM   #8
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Thanks--I figured logically I could have any number of upper configurations--as long as the receiver "was born into a pistol upon delivery" : ) Just wanted to make sure--and was not absolutely positive about "proximity of pistol parts" (which I assume has more to do with switching back and forth between pistol and rifle use for the lower) applied to change over to other pistol configurations as well.
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Old June 8, 2016, 09:08 AM   #9
tirod
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There is in fact a legal case now being pursued where the firearms owner was in possession of both a rifle and pistol broken down in a single case for transportation. Due to the LEO's "need" to search and being identified as the owner, the guns were seized as evidence unrelated to the original complaint.

The officers in the station assembled the parts in a manner that violated the NFA, taking pictures of the results. And then reported it to the ATF. The defendant is now dealing with that charge which was literally manufacture by the LEO's and having nothing to do with any previous reasons for their investigation. And yes, his lawyer now knows a whole bunch more about the NFA and his lack of defending his client effectively.

If there is a take away, don't store things like that. Don't use a stock or buffer tube which allows installation in an illegal manner, ie pistol buffer tubes can't take carbine stocks either milspec or commercial. And don't leave your guns in the car overnight when you could have put them in your safe and avoided the whole incident, among other things.

Presence of mind counts most of all, pistols are extremely controversial to this day due to the massive ignorance by the public and law enforcement. It's not the owners "fault" but he is having to deal with the fall out. That is the sort of thing "constructive possession" attempts to sum up. Your intent will always be interpreted as an attempt to break the law regardless of whether you even did it.
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Old June 8, 2016, 09:46 AM   #10
stagpanther
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Good points tirod--I have had similar discussions with AR pistol owners and component manufacturers.

It's one reason why I "play it safe" by using only completely smooth buffer tubes and a sig arm brace (when I do use a brace)--there is no way you can adjust that quickly without putting it in a vice, and there is no "fixed" setting that would enable a quick shoulder weld adjustment.

AR's are scary to the public and LE in general--stands to reason an AR pistol would be even more so.
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