PDA

View Full Version : legality of disassembled ar-15 in illegal configuration


doubledgarage
01-19-2011, 12:15 AM
Let's assume hypothetically that I'm have an AR-15, with all the evil features and without a bullet button. Or we can assume hypothetically that I have an AR-15 with a 30-round mag in the magwell.

If I stored or transported this AR-15 disassembled (two pieces, upper & lower) in this configuration, is it still considered a crime?

(I won't be doing this because I'm not looking for trouble but I'm just kinda curious if it should happen...)

winxp_man
01-19-2011, 12:23 AM
If I'm not wrong as long as the lower is in-tacked its illegal, IF you do NOT have a BB, or have a Hi Cap mag inserted in it. The mag you cant have anyways unless its preban or 10/30 mag. The only configuration that a lower does not need a BB is if there are not parts installed on it.

doubledgarage
01-19-2011, 12:26 AM
If I'm not wrong as long as the lower is in-tacked its illegal to NOT have a BB or a Hi Cap mag. The mag you cant have anyways unless its preban or 10/30 mag.

Well, I guess I'm also assuming that the mag was pre-ban, lol. I guess my scenario assumed the mag was pre-ban but it would trigger the assault weapon designation.

winxp_man
01-19-2011, 12:27 AM
yes because of the fact that you have no BB on the lower.

Carnivore
01-19-2011, 1:44 AM
"face....palm" Might just be me but how about "hypothetically" we stop asking hypotheticals that people "won't do" but would get them in real deep legal trouble. Oh wait...others have already come up with that hypothetical before...sorry.

wildhawker
01-19-2011, 2:03 AM
Let's assume hypothetically that I'm have an AR-15, with all the evil features and without a bullet button. Or we can assume hypothetically that I have an AR-15 with a 30-round mag in the magwell.

If I stored or transported this AR-15 disassembled (two pieces, upper & lower) in this configuration, is it still considered a crime?

(I won't be doing this because I'm not looking for trouble but I'm just kinda curious if it should happen...)

If the receiver is not banned by name, then a disassembled AR-type firearm does not meet the definition of an assault weapon (it is not a semiautomatic, centerfire rifle, just a firearm frame and parts). Constructive possession does not apply. For the previous, I am assuming you are discussing rifles, and not pistols.

If the receiver is banned by name and is not registered, then you would be guilty of [at least] possession of an unregistered AW.

Read the flowchart: http://www.calguns.net/caawid/flowchart.pdf

cmth
01-19-2011, 6:00 AM
Is a separated lower with no upper attached, with a full magazine inserted into the mag well, a loaded firearm? It does not appear to meet the requirement that the ammunition be in a position to be fired, as stated in the People v. Clark. I argue that the firearm is not loaded because there is no possible way for the ammunition to be fired.

daves100
01-19-2011, 6:10 AM
hypothetically just remove the pistol grip, but then you still have the 30 round mag to deal with

Wildeman_13
01-19-2011, 6:21 AM
What Wildhawker said...

But it does raise the question of when do you HAVE to put the bulletbutton on? Or the start of a featureless build for that matter. What I mean is that the receiver is the firearm by law, right? And upper or no upper, that receiver holds some of the "key" parts that make it an AW as in the magazine type/capacity and pistol grip and such. So when you start to build out an AR with a standard parts kit, and put that pistol grip on, should it already have the bulletbutton on it? I'm curious of where the line is if anyone even really knows. Has anyone ever been charged for AW possesion while the AR is in pieces?

DannyInSoCal
01-19-2011, 6:31 AM
Even if it's apart and you find yourself handcuffed on the curb - All of the sudden the cop pulls your AR out of the trunk fully assembled...

"It was apart - I know my rights - Don't taze me bro!!" is a pretty weak defense.

Simply follow the flowchart and be ready to calmly and clearly explain to the officers supervisor exactly why your AR is legal in either configuration - Together or apart...

b25
01-19-2011, 6:33 AM
If the receiver is not banned by name, then a disassembled AR-type firearm does not meet the definition of an assault weapon (it is not a semiautomatic, centerfire rifle, just a firearm frame and parts).

If the above is true, is it safe to say that removing the bolt from other types of centerfire firearms make them "just a firearm frame" as well? (i.e.: no longer a centerfire rifle, because the centerfire bolt is not in-place.)

-b

Wildeman_13
01-19-2011, 6:35 AM
Even if it's apart and you find yourself handcuffed on the curb - All of the sudden the cop pulls your AR out of the trunk fully assembled...

"It was apart - I know my rights - Don't taze me bro!!" is a pretty weak defense.

Simply follow the flowchart and be ready to calmly and clearly explain to the officers supervisor exactly why your AR is legal in either configuration - Together or apart...

This scenario is more of what my question was geared towards... except maybe change it to you are sitting at a friends house doing an AR build party and the cops raid the place for some reason. Yeah yeah... "what illegal stuff is going on that they raid the place?" you may ask, but cops have been known to hit the wrong house on occasion.

CSACANNONEER
01-19-2011, 6:39 AM
If I'm not wrong as long as the lower is in-tacked its illegal, IF you do NOT have a BB, or have a Hi Cap mag inserted in it. The mag you cant have anyways unless its preban or 10/30 mag. The only configuration that a lower does not need a BB is if there are not parts installed on it.

Well, I guess I'm also assuming that the mag was pre-ban, lol. I guess my scenario assumed the mag was pre-ban but it would trigger the assault weapon designation.

yes because of the fact that you have no BB on the lower.

assuming that it is not a listed lower, once the upper is removed from the lower, it would not be "centerfire rifle...." Therefore, it would not need a BB. It would be perfectly legal to put a dedicated rimfire upper on such a lower without a BB or other magazine lock.

doubledgarage
01-19-2011, 7:47 AM
"face....palm" Might just be me but how about "hypothetically" we stop asking hypotheticals that people "won't do" but would get them in real deep legal trouble. Oh wait...others have already come up with that hypothetical before...sorry.

Well, the reason I asked is because I usually transport my legally configured AR disassembled (I have one of those discrete rifle cases) and just thought "what if..."

Anyways, even if I'm arrested for a legally configured AR, at least I can tell the officer, "Hey, the AR is disassembled, it's merely parts, doesn't constitute as a gun anymore."

doubledgarage
01-19-2011, 7:49 AM
Even if it's apart and you find yourself handcuffed on the curb - All of the sudden the cop pulls your AR out of the trunk fully assembled...

"It was apart - I know my rights - Don't taze me bro!!" is a pretty weak defense.

Simply follow the flowchart and be ready to calmly and clearly explain to the officers supervisor exactly why your AR is legal in either configuration - Together or apart...

Agreed.

I think a bonus of keeping a legally configured AR disassembled is now I can tell the officer, "Look, it's just frame and parts, not an AR, etc..."

doubledgarage
01-19-2011, 7:50 AM
and thanks for the replies!

Matt3989
01-19-2011, 8:34 AM
well its legal to have a standard mag release on a .22 cal AR. So it seems illogical for it to be illegal to have a standard mag release on a disassembled gun.

motorhead
01-19-2011, 9:03 AM
no constructive possession for state awb. inserting a 30 into a loose reciever probably isn't the best idea though.

Don29palms
01-19-2011, 9:29 AM
If I'm out delivering a pizza and a hot 22yo lady answers the door completly naked and invites me in to have my way with her should I wear a condom or not?

doubledgarage
01-19-2011, 10:15 AM
If I'm out delivering a pizza and a hot 22yo lady answers the door completly naked and invites me in to have my way with her should I wear a condom or not?

You don't.

Librarian
01-19-2011, 10:55 AM
If the above is true, is it safe to say that removing the bolt from other types of centerfire firearms make them "just a firearm frame" as well? (i.e.: no longer a centerfire rifle, because the centerfire bolt is not in-place.)

-b

That's not the issue in this thread.

A disassembled firearm is still a firearm.

A disassembled 'assault weapon', for example an AR-pattern rifle disassembled into the upper and lower, is still a firearm but may or may not be an 'assault weapon' - a non-semi-automatic or a non-centerfire upper might be assembled to that lower.

A 'named' lower should always be treated as if it were an 'assault weapon'; there seem to be 'close call' legal arguments about details of assembly which might prevail against that classification, but the risk is $1000s to prove it for a device that costs $100s

doubledgarage
01-19-2011, 11:01 AM
That's not the issue in this thread.

A disassembled firearm is still a firearm.

A disassembled 'assault weapon', for example an AR-pattern rifle disassembled into the upper and lower, is still a firearm but may or may not be an 'assault weapon' - a non-semi-automatic or a non-centerfire upper might be assembled to that lower.

A 'named' lower should always be treated as if it were an 'assault weapon'; there seem to be 'close call' legal arguments about details of assembly which might prevail against that classification, but the risk is $1000s to prove it for a device that costs $100s

So a disassembled firearm is still a constructive possession of a firearm?

A disassembled AR-15 is still a constructive possession of a firearm BUT is not a constructive possession of an assault weapon?

doubledgarage
01-19-2011, 11:05 AM
If the above is true, is it safe to say that removing the bolt from other types of centerfire firearms make them "just a firearm frame" as well? (i.e.: no longer a centerfire rifle, because the centerfire bolt is not in-place.)

-b

Good question. If it was true, would be kinda nice to just tell the cop, "it's just a firearm frame, gun is non-op"

bwiese
01-19-2011, 11:24 AM
Let's assume hypothetically that I'm have an AR-15, with all the evil features and without a bullet button. Or we can assume hypothetically that I have an AR-15 with a 30-round mag in the magwell.

If I stored or transported this AR-15 disassembled (two pieces, upper & lower) in this configuration, is it still considered a crime?

We see this question time & again from people who seem to want to violate the law 'privately' with no BB in remote areas and then transport the gun to/from home 'legally'. If a person does this he's not only committing a crime, he' just lazy too.

Yeah it's kinda legal as there's no constructive possession. But don't expect it to smell good to a cop or a DA or even judges.... thiis could be an instance where something has to run up the appeals chain.

I hate answering these questions because someone will take the above words, turn them inside out and use it to promote illegal or stupid behaviors.

Individuals transporting/storing OLL black rifles, etc. should ALWAYS have them 'in proper shape' and have demonstrated significant efforts toward compliance... BB maglock installed, or no pistol grip, or exempt due to rimfire or manually cycled (nonsemiauto) status.

wildhawker
01-19-2011, 11:24 AM
Good question. If it was true, would be kinda nice to just tell the cop, "it's just a firearm frame, gun is non-op"

I think you're misunderstanding what I wrote and Librarian clarified.

A firearm must still be treated as a firearm. This goes to GFSZ, etc.

However, for the purposes of AW statutes, given that the frame is not "listed" or "banned by name", a disassembled rifle cannot be an AW by configuration (e.g., SB23). THAT SAID... a split upper/lower is pretty clearly not an AW (again, given that it is an OLL) - however, a "broken AW" (such as a fully-configured firearm which would be classified as an AW, but has a broken or missing firing pin, for example) could very possibly lead to criminal charges.

ap3572001
01-19-2011, 11:40 AM
In my almost 20 years as an LEO , I NEVER arrested anyone for having gun parts......

As with every example, there has to be more.

How were You stoped? Why? Where were the parts? Was there any ammo?
AND MANY MORE FACTORS....... :)

There no simple answer to this.

stix213
01-19-2011, 11:42 AM
What Bwiese said

While likely legal, please don't go shooting your illegally configured AW out in the woods and come here looking for ways around the law for your drive home.

doubledgarage
01-19-2011, 11:55 AM
We see this question time & again from people who seem to want to violate the law 'privately' with no BB in remote areas and then transport the gun to/from home 'legally'. If a person does this he's not only committing a crime, he' just lazy too.

Yeah it's kinda legal as there's no constructive possession. But don't expect it to smell good to a cop or a DA or even judges.... thiis could be an instance where something has to run up the appeals chain.

I hate answering these questions because someone will take the above words, turn them inside out and use it to promote illegal or stupid behaviors.

Individuals transporting/storing OLL black rifles, etc. should ALWAYS have them 'in proper shape' and have demonstrated significant efforts toward compliance... BB maglock installed, or no pistol grip, or exempt due to rimfire or manually cycled (nonsemiauto) status.

Yeah, understood. I'm not trying to violate the law (seriously, I've been in trouble when I was younger and it's not worth $5000+ in legal fees) rather I just want to better understand constructive possession.

I perfectly understand it's bad enough trying to explain to the police why my AR-15 is perfectly legal (with the flowchart) let alone why my illegally configured AR-15 is kinda legal because it's disassembled.

doubledgarage
01-19-2011, 12:04 PM
I think you're misunderstanding what I wrote and Librarian clarified.

A firearm must still be treated as a firearm. This goes to GFSZ, etc.

However, for the purposes of AW statutes, given that the frame is not "listed" or "banned by name", a disassembled rifle cannot be an AW by configuration (e.g., SB23). THAT SAID... a split upper/lower is pretty clearly not an AW (again, given that it is an OLL) - however, a "broken AW" (such as a fully-configured firearm which would be classified as an AW, but has a broken or missing firing pin, for example) could very possibly lead to criminal charges.

got it. thanks!

doubledgarage
01-19-2011, 12:07 PM
What Bwiese said

While likely legal, please don't go shooting your illegally configured AW out in the woods and come here looking for ways around the law for your drive home.

of course. i'm in los angeles. there aren't any woods for me to shoot in without having the cops being called on me, lol.

with a better understanding of this, i rather keep transporting my AR disassembled, unless i have a compelling reason to keep it assembled.

ale014
01-19-2011, 1:16 PM
yea i would keep it disassembled and with bb intact, even if you were going out to state to shoot.
Reassemble the lower with regular mag release out of state, not before. Just to play it safe

bohoki
01-19-2011, 2:27 PM
say someone has a barrel with enough parts to make 10 ca configured assault weapon

is the person in possession of an assault weapon



in your hypothetical i gotta admit that they could use the acted on good faith ignorance excuse to arrest you

if i had a bullet button i would not want any mags that fit the gun and hold more than 10 anywhere around

Abominog
01-19-2011, 5:55 PM
I think the question is a good one.

There is no law anywhere that says it is NOT constructive posession.

Since ATF has been able to enforce CP for NFA, why wouldn't some other LE/ DA be able to do the same for non-NFA firearms? What is stopping them from prosecuting and citing CP for NFA as presedent?

hoffmang
01-19-2011, 6:02 PM
I have also heard of at least one occasion where a disassembled off list AR was put together by the officer creating a by feature AW... As such, I would throw a lock or something on some part that makes it impossible to be assembled into an illegal AW - not because it's the law - but because it keeps the above from happening.

-Gene

hoffmang
01-19-2011, 6:26 PM
There is no law anywhere that says it is NOT constructive posession.


CA-DOJ has opined many times that there is no constructive possession of AWs. If there was you couldn't own a featureless rifle and a featured rifle w/ a BB at the same time. Worse, DOJ Agents have opined (correctly I might add) that attaching sunglasses to a semiautomatic centerfire rifle with a detachable magazine would create an AW as they would reduce the flash as seen by the shooter.

If there was constructive possession of AWs in CA then every gun owner with a semiautomatic centerfire detachable magazine rifle who also owns sun glasses would be a felon.

-Gene

Anchors
01-19-2011, 7:03 PM
If I'm not wrong as long as the lower is in-tacked its illegal, IF you do NOT have a BB, or have a Hi Cap mag inserted in it. The mag you cant have anyways unless its preban or 10/30 mag. The only configuration that a lower does not need a BB is if there are not parts installed on it.

Without an upper it isn't semi-automatic.
AW are semi-auto by definition.

Don't do it either way, but according to the law I feel that it is legal.

Anchors
01-19-2011, 7:05 PM
I think the question is a good one.

There is no law anywhere that says it is NOT constructive posession.

Since ATF has been able to enforce CP for NFA, why wouldn't some other LE/ DA be able to do the same for non-NFA firearms? What is stopping them from prosecuting and citing CP for NFA as presedent?

Machine gun parts are illegal period.
Having the auto-sear hole drilled is illegal period.
Constructive possession for MG parts is illegal because they clearly state constructive possession is illegal, I believe.

I might be wrong.

Cokebottle
01-19-2011, 7:25 PM
If I'm not wrong as long as the lower is in-tacked its illegal, IF you do NOT have a BB, or have a Hi Cap mag inserted in it. The mag you cant have anyways unless its preban or 10/30 mag. The only configuration that a lower does not need a BB is if there are not parts installed on it.
Wrong.

California SB23 Assault Weapon "evil features" apply only to semiautomatic, centerfire rifles.

When the upper is removed from the lower, the lower is neither centerfire nor semiautomatic.

It would be perfectly legal to drive to the range with a disassembled rifle, install a 22lr upper, and fire it with high-cap magazines and no bullet button.
It would further be legal to remove the .22lr upper, install a bullet button, and then install a 5.56 upper.

Cokebottle
01-19-2011, 7:26 PM
hypothetically just remove the pistol grip, but then you still have the 30 round mag to deal with
30rd mag is not an issue without a bullet button.