Constructive Possession

[NorCalRefuge]

Humor me...

If an individual currently owns a lower receiver, and purchases a short barrel (say 14.5") with the intent to pin and weld a long muzzle device prior to mounting the barrel... does this count as Constructive Possession?

What about if the individual purchases a 10.3" barrel and intends to pin and weld a mock suppressor/barrel extender (just highlighting the point here).

The core question is, if the SCOTUS opined mere possession of the components of an NFA firearm is illegal (because they readily could be installed in an illegal configuration) - where is the actual line between purchasing components to be converted into legal features and where you run afoul of the AFT, err... ATF and the State?

[Tommy Gun]

Considering how the ATF changed their minds and raided that dudes house when he had a letter from them stating it was legal, depends how they feel that day.

IMO its not illegal to purchase componants like that until you are either caught doing something illegal or stupid or use it on a finished product making it illegal, i.e. SBR.

[pratchett]

The easiest part of your question is about fake suppressors. A fake suppressor A) functions as/is without alteration; and B) is plainly advertised in standard English in all advertising materials as not reducing the sound signature. This is perfectly legal. Painting flames on your Camaro wouldn't leave you vulnerable to an arson charge, and in the same way a non-functional (cosmetic) airsoft/cosplay muzzle device can't be charged as a suppressor. Spikes and Guntec are perhaps the most common vendor for fake suppressors for centerfire semi-automatic rifles.

No matter your intentions, do not ever possess a barrel less than 16" until you possess a lower that's DROSd as a pistol lower.

[Supersapper]

Considering how the ATF changed their minds and raided that dudes house when he had a letter from them stating it was legal, depends how they feel that day.

IMO its not illegal to purchase componants like that until you are either caught doing something illegal or stupid or use it on a finished product making it illegal, i.e. SBR.

I would tend to agree. IIRC, there was a ruling that a lower, when separated completely from it's upper, did not constitute a weapon. This was some time ago, but I didn't hear anything different, so a fully assembled upper, made legal with the appropo parts was ok, but just having the parts to make it wasn't. Made no sense to me.

In reality, I would not buy a questionable upper set until you are immediately ready to assemble it and make the thing legit.

[NorCalRefuge]

That part (about the fake suppressor) was to highlight the issue... at what point does it become Constructive Possession and not legal.

What is, or is not a fake suppressor or barrel extension is irrelevant.

If this same individual buys the 10.3" barrel and a 9" rail, is this now Constructive Possession? What about buying a 14.5" barrel and a 13" rail?

It's generally accepted buying a 14.5" barrel and pin/welding a muzzle device to bring the barrel length up to 16" in legal... but how can that be if the SCOTUS opined this is illegal construction of a NFA device right up until the muzzle device is permanently attached?

[Dvrjon]

I would tend to agree. IIRC, there was a ruling that a lower, when separated completely from it's upper, did not constitute a weapon. This was some time ago, but I didn't hear anything different, so a fully assembled upper, made legal with the appropo parts was ok, but just having the parts to make it wasn't. Made no sense to me.

In reality, I would not buy a questionable upper set until you are immediately ready to assemble it and make the thing legit.

Ca PEN 30515 defined an assault weapon, in part as:

30515.
(a) Notwithstanding Section 30510, “assault weapon” also means any of the following:

(1) A semiautomatic , centerfire rifle....[/B]
(4) A semiautomatic pistol...

During Assault Weapon registration, a regulation was approved which provided definitions for the program. These were included in:

.
Registration of Assault Weapons Pursuant to Penal Code Section 30900(b)(1); Explanation of Terms Related to Assault Weapon Designation.

(hh) “Semiautomatic” means a firearm functionally able to fire a single cartridge, eject the empty case, and reload the chamber each time the trigger is pulled and released. Further, certain necessary mechanical parts that will allow a firearm to function in a semiautomatic nature must be present for a weapon to be deemed semiautomatic. A weapon clearly designed to be semiautomatic but lacking a firing pin, bolt carrier, gas tube, or some other crucial part of the firearm is not semiautomatic for purposes of Penal Code sections 30515, 30600, 30605(a), and 30900.
(1) A mechanically whole semiautomatic firearm merely lacking ammunition and a proper magazine is a semiautomatic firearm.
(2) A mechanically whole semiautomatic firearm disabled by a gun lock or other firearm safety device is a semiautomatic firearm. (All necessary parts are present, once the gun lock or firearm safety device is removed, and weapon can be loaded with a magazine and proper ammunition.)
(3) With regards to an AR-15 style firearm, if a complete upper receiver and a complete lower receiver are completely detached from one another, but still in the possession or under the custody or control of the same person, the firearm is not a semiautomatic firearm.
(4) A stripped AR-15 lower receiver, when sold at a California gun store, is not a semiautomatic firearm. (The action type, among other things, is undetermined.)

Although these definitions originally applied to the REGISTRATION of assault weapons, they were later applied, by regulation, to provide identification criteria for assault weapons after the registration period closed. These were codified under

[NorCalRefuge]

Ca PEN 30515 defined an assault weapon, in part as:
During Assault Weapon registration, a regulation was approved which provided definitions for the program. These were included in:

.
Registration of Assault Weapons Pursuant to Penal Code Section 30900(b)(1); Explanation of Terms Related to Assault Weapon Designation.
Although these definitions originally applied to the REGISTRATION of assault weapons, they were later applied, by regulation, to provide identification criteria for assault weapons after the registration period closed. These were codified under

Thanks. Seems to only really apply to assembled upper/lowers on the AR15 platform - not just loose parts laying around.

[Dvrjon]

Thanks. Seems to only really apply to assembled upper/lowers on the AR15 platform - not just loose parts laying around.

Somewhat covered here.

[RickD427]

I would tend to agree. IIRC, there was a ruling that a lower, when separated completely from it's upper, did not constitute a weapon. This was some time ago, but I didn't hear anything different, so a fully assembled upper, made legal with the appropo parts was ok, but just having the parts to make it wasn't. Made no sense to me.

In reality, I would not buy a questionable upper set until you are immediately ready to assemble it and make the thing legit.

Supersapper,

It wasn't a ruling.

There is a DOJ regulation in effect that holds an AR platform weapons, where the upper and lower receivers are separated, is not a "semi-automatic" weapon for the purposes of the Assault Weapon statute.

It's still a firearm, even if separated.

It's also important to note that the regulation only applies to the referenced statutes. Be careful not to attempt application beyond its scope.

Please refer to 11 CCR 5471(hh)(3)

[NorCalRefuge]

Somewhat covered here.

Thanks, good info in that thread. Still leaves open the question though...

Taking it a step further - what if this individual purchased a 14.5" barrel, and then never got around to actually pin/welding a muzzle device nor mounting it on an upper receiver (but owns other upper receivers) - and just left it in the original box it arrived in.

Constructive Possession, or just a lazy individual? Where is the line?

[RickD427]

All,

Please note that there is no "Constructive Possession" language in California's Assault Weapon statute.

It is worth noting that there is case law prohibiting the "Attempted Possession" of an Assault Weapon, which is very similar, but still different from, constructive possession. Please refer to People v Nguyen.

California's Short Barrel Rifle, Short Barrel Shotgun, and Machine Gun statutes do employ "Constructive Possession" language.

[NorCalRefuge]

All,

Please note that there is no "Constructive Possession" language in California's Assault Weapon statute.

It is worth noting that there is case law prohibiting the "Attempted Possession" of an Assault Weapon, which is very similar, but still different from, constructive possession. Please refer to People v Nguyen.

California's Short Barrel Rifle, Short Barrel Shotgun, and Machine Gun statutes do employ "Constructive Possession" language.

Thanks for clarifying that. What about the ATF/Fed side of things?

[RickD427]

Thanks for clarifying that. What about the ATF/Fed side of things?

Regarding the federal side of the "Constructive Possession" question, the federal statutes for SBR,SBS, and Machine Gun all have "Constructive Possession" clauses. The feds no longer have an "Assault Weapon" statute similar to California's.

Regarding the separated upper/lower receivers, there is no clear equivalent on the federal side, but there was one case where the feds dropped charges on a gent who possessed an AR-15 lower and where the case rested on the 18 USC 921 definition that a receiver alone was a firearm. The key point of contention in the case was whether a lower receiver, without the matching upper receiver fit that definition. The feds dropped the case rather than duke it out. That's means there's no legal precedent set and the next AUSA with the same case may elect to go to trial.

[NorCalRefuge]

Regarding the federal side of the "Constructive Possession" question, the federal statutes for SBR,SBS, and Machine Gun all have "Constructive Possession" clauses. The feds no longer have an "Assault Weapon" statute similar to California's.

Regarding the separated upper/lower receivers, there is no clear equivalent on the federal side, but there was one case where the feds dropped charges on a gent who possessed an AR-15 lower and where the case rested on the 18 USC 921 definition that a receiver alone was a firearm. The key point of contention in the case was whether a lower receiver, without the matching upper receiver fit that definition. The feds dropped the case rather than duke it out. That's means there's no legal precedent set and the next AUSA with the same case may elect to go to trial.

Hmm, interesting. Seems a lot of these laws are centered around having a completed upper/lower, not just loose parts lying around. I think it's easy to make the case if you have a pistol upper fully built, and a complete lower that's registered as a rifle, and have no pistol lowers registered in your name - that you intended to make a pistol out of your rifle.

But, if you have just a barrel laying around - either because you intended to manufacture an illegal firearm, intended to manufacture a legal firearm, or intended to use it as a paperweight... how would the ATF interpret this? Does it come down to the ATF having to prove your intent, which relies on you telling them your intent (like in the Nguyen case)?

Seems really silly they could say - well this individual has a short barrel, a muzzle device, rail, and an upper receiver all separated... that must be an NFA firearm! (due to Constructive Possession). If you're an AR15 owner, you likely have many of these spare parts in your parts bin already.

[-hanko]

Thanks. Seems to only really Does apply to assembled upper/lowers on the AR15 platform - not just loose parts laying around.

Fify.