So, I have a couple of complete lowers that have been sitting around for a while. Was going to just put 14.5" uppers on them and call it a day.

But to be less boring, was thinking about a 11.5". What's the process? It looks like the uppers can ship directly to me, so does it just sit in the safe until it gets it's stamp? Or does it have to go to an FFL for them to hold it?

Thank for the info.

Keep in mind a 14.5" upper is still an SBR. Has to be 16" to not need a stamp.

To make and SBR you need to fill out the proper paper work with the ATF and wait for your stamp before you put your rifle together.

Some will say that you cannot posses both and upper under 16" and a lower. They will argue "constructive possession of an sbr."

I find this line of thinking to be silly. We posses all kinds of things that if combined could be illegal but are perfectly legal when separate.

I've never once worried about that. Just don't put the upper on a lower until you get the stamp for said lower in your possession.

you will also need to have the lower engraved.

There are plenty of guides for this process on the internet.

The paperwork has gotten a bit more of a PITA, but it's certainly not that big of a deal either.

Do you have any specific questions?

in addition, make sure they are legal in your state (yes, an obvious question)

wait times have gotten just a bit better on forms,, but plan on 6 months just to be safe,

esdunbar, thanks for the info.

For clarity, I order the upper, put it in a safe and forbid any fornication with a lower until the paperwork is done.

I suppose I should look into getting a trust.

It depends on what circuit you are in.

In the 11th Circuit (basically Alabama, Georgia, and Florida), there is a case, United States v. Kent, 175 F.3d 870 (11th Cir. 1999), in which a guy was nailed for possession of an unregistered SBR, except it was an almost-SBR. In fact, he had a complete Colt SP-1, in its Title 1 legal configuration, and separately, a complete upper with a barrel less than 16". [The opinion does not say how long the barrel on the <16" upper was.]

At trial, he was found guilty of possessing an unregistered short-barreled rifle [26 U.S.C.S. § 5861(d)].

There was never any evidence that he installed the short-barreled upper on the SP-1 lower.

He appealed his conviction on the possession-of-unregistered-SBR charge to the 11th Circuit Court of Appeals, where the conviction was upheld.

The trial court's reasoning, which I feel is incredibly flawed, is that it would have been very easy to assemble an illegally configured SBR from the short barreled upper receiver and the SP-1 via a "Two-step-process:" remove SP-1 upper, followed by attaching the SB upper.

You can see how this ruling might cause problems for those of us with both title 1 lowers/rifles and complete legally registered SBRs.

Narrowly speaking, the defendant may have did himself in by claiming that he only kept the SB upper around for "constituent parts." The trial court found it upper in one piece so it's implied that they didn't believe him. The defendant in Kent was also nailed on four other firearms charges, so his case may have suffered from a "preponderance of charges" stigma.

In my opinion, it's either an SBR or not an SBR. Someone who has a Gen3, 4, or 5 Glock and a VFG laying around shouldn't be guilty of having an AOW, just because it would be easily possible to assemble an AOW from the Glock and the VFG. Anyone who has more than two nickels to rub together probably has something that could be combined or converted into something illegal. Being able to potentially violate the law isn't violating the law (especially in this case), but there you have it.

quote:

Originally posted by LDD:
It depends on what circuit you are in.

In the 11th Circuit (basically Alabama, Georgia, and Florida), there is a case, United States v. Kent, 175 F.3d 870 (11th Cir. 1999), in which a guy was nailed for possession of an unregistered SBR, except it was an almost-SBR. In fact, he had a complete Colt SP-1, in its Title 1 legal configuration, and separately, a complete upper with a barrel less than 16". [The opinion does not say how long the barrel on the <16" upper was.]

At trial, he was found guilty of possessing an unregistered short-barreled rifle [26 U.S.C.S. § 5861(d)].

There was never any evidence that he installed the short-barreled upper on the SP-1 lower.

He appealed his conviction on the possession-of-unregistered-SBR charge to the 11th Circuit Court of Appeals, where the conviction was upheld.

The trial court's reasoning, which I feel is incredibly flawed, is that it would have been very easy to assemble an illegally configured SBR from the short barreled upper receiver and the SP-1 via a "Two-step-process:" remove SP-1 upper, followed by attaching the SB upper.

You can see how this ruling might cause problems for those of us with both title 1 lowers/rifles and complete legally registered SBRs.

Narrowly speaking, the defendant may have did himself in by claiming that he only kept the SB upper around for "constituent parts." The trial court found it upper in one piece so it's implied that they didn't believe him. The defendant in Kent was also nailed on four other firearms charges, so there may have been suffered from a "preponderance of charges" stigma too.

In my opinion, it's either an SBR or not an SBR. Someone who has a Gen3, 4, or 5 Glock and a VFG laying around shouldn't be guilty of having an AOW, just because it would be easily possible to assemble an AOW from the Glock and the VFG. Anyone who has more than two nickels to rub together probably has something that could be combined or converted into something illegal. Being able to potentially violate the law isn't violating the law (especially in this case), but there you have it.

Dang. That's the first real info i've seen of "constructive intent" that people always spout off about.

For what its worth. While I was waiting on my Form 1 for my SBR. I mailed the barrel to my office and threw it in a drawer. That way they were never in the same place at same time.

quote:

Originally posted by LDD:


You can see how this ruling might cause problems for those of us with both title 1 lowers/rifles and complete legally registered SBRs.

I don’t believe this is true. An SBR is defined as a rifle with a barrel length of less than 16”. As near as I can tell, if you have a legally registered SBR, the actual barrel length with regards to how much less than 16” is immaterial. Yes, the Form 1 does specify a specific barrel length but AFAIK, you can temporarily swap out uppers with different barrels lengths. If you have a registered SBR lower with a 10.5” barrel, how is it against the law to put on an upper with a 12.5” barrel? It can’t be an illegal SBR since an SBR is simply defined as having a barrel less than 16”. I know of no one that has ever been charged or prosecuted for having a different length barrel on their SBR.

If you have registered SBR AR lowers as well as Title 1 AR lowers, you can simply claim different uppers are for use with the registered lowers. It would on them to prove otherwise. I’m betting the guy who got popped for constructive possession had no registered SBR lowers.

With the proliferation of AR pistols and “braces” it seems so easy to get around this. If you have on AR pistol lower, you could claim different uppers with less than 16” barrels are for you pistol.

As far as how hard it is to get an SBR these days, I found it incredibly easy since you no longer need a CLEO sign off and can use e-forms. I just put in to SBR my Zenith Z-5RS using Silencer Shop’s Form 1 service and one shot trust. Just filled out an online form, and in less than 24 hours I had the paperwork signed electronically and on the way. Now it’s just the wait, and getting the receiver engraved sometime in the next few months.

The point is not that if you have an SBR, you can use your uppers on your SBR.

The fact that you have a legal SBR is immaterial to the court's reasoning in this case.

The reasoning from the district court is: if you have the parts to illegaly, but easily assemble an unregistered SBR then you have committed the equivalent crime of possessing an complete and unregistered SBR.

And that is why this is bad law. It's nebulous as to what actually is an SBR under this holding.

Also it's overbroad because every person or entity (including FFLs) that has title one lowers and short barreled uppers could be guilty, under the same Kent standard of possession of an unregistered SBR.

The burden should have been on the prosecution to prove that Kent actually assembled the rifle in an illegal configuration. Instead, the court found it good-enough that he could have done so with a two-step process. At that point the burden shifted to the defendant, and his "constituent parts" argument was not good enough to carry his case.

Why?

The issue is that why he had the parts didn't answer the "it's easy to make an SBR with them there parts" accusation. At that point, the burden he needed to overcome wasn't "do you have a legit reason to have these parts?" (registered SBR, curiosity, was going to build a pistol with them, etc). The defense he had to come up with was that it was not physically easy to assemble the parts into an SBR. Since he couldn't prove that, the court of appeals affirmed the district court's conviction.

Having a legit registered SBR doesn't help when the legal question/standard changes from "why do you have this short-barreled upper" to "could you do something illegal with these parts?" "I have a legit SBR" doesn't answer the second question, so if the prosecution is allowed to frame the case with the second question, well there's problems for those of us who own both SBR uppers and title 1 lowers, because, yes, it is generally mechanically easy to assemble both an upper and a lower together.

Can't you just throw an arm brace on it until it's sbr'd and call it a pistol?

quote:

Originally posted by Ryanp225:
Can't you just throw an arm brace on it until it's sbr'd and call it a pistol?

Yep, that's what I did. I built a pistol, I shot it with the upper and made sure it was reliable then I engraved my trust information and when it was proven reliable and the engraving was right I sent in my paperwork, check and patiently waited. When I got my stamp I installed my carbine buffer tube and stock and then built another pistol! It to will be a SBR someday when I get the extra money for the stamp and time to update my Trust.

As I see it, this is the best route. You are testing the lower and engraving before you pay the tax you can legally have it as a pistol and easily change it when you are approved.

ARman

quote:

Originally posted by Ryanp225:
Can't you just throw an arm brace on it until it's sbr'd and call it a pistol?

I think that if the lower was sold as a rifle (i.e. not as a pistol lower), or if it was ever assembled as a rifle, it can never be a pistol. Once a rifle, always a rifle.

However, supposedly if it started as a pistol, and was assembled as a pistol first, it can be converted to a rifle a back again.

quote:

Originally posted by Ryanp225:
Can't you just throw an arm brace on it until it's sbr'd and call it a pistol?

Yep, make sure the lower is an "other", throw a brace on it and try it to see if you even want/need a stock. The braces have gotten a lot better since the first Sig brace which I had, switch to KAK Shockwave which I still use on one of my pistols. Recently I got one of the new SB tactical braces for my AK M85 and after using it I will not be SBRing it.

quote:

Originally posted by esdunbar:
Some will say that you cannot posses both and upper under 16" and a lower. They will argue "constructive possession of an sbr."

I find this line of thinking to be silly. . .

Actually it's silly because "constructive possession," has nothing, nada, zero, zilch, to do with the ability to "construct" an item.

"Constructive possession" has a very specific meaning in the law, and I would expect an attorney would know that, and know it has absolutely nothing to do with the ability to construct an item.

quote:

Originally posted by LDD:
It depends on what circuit you are in.

In the 11th Circuit (basically Alabama, Georgia, and Florida), there is a case, United States v. Kent, 175 F.3d 870 (11th Cir. 1999), in which a guy was nailed for possession of an unregistered SBR, except it was an almost-SBR. In fact, he had a complete Colt SP-1, in its Title 1 legal configuration, and separately, a complete upper with a barrel less than 16". [The opinion does not say how long the barrel on the <16" upper was.]

At trial, he was found guilty of possessing an unregistered short-barreled rifle [26 U.S.C.S. § 5861(d)].

There was never any evidence that he installed the short-barreled upper on the SP-1 lower.

He appealed his conviction on the possession-of-unregistered-SBR charge to the 11th Circuit Court of Appeals, where the conviction was upheld.

The trial court's reasoning, which I feel is incredibly flawed, is that it would have been very easy to assemble an illegally configured SBR from the short barreled upper receiver and the SP-1 via a "Two-step-process:" remove SP-1 upper, followed by attaching the SB upper.

You can see how this ruling might cause problems for those of us with both title 1 lowers/rifles and complete legally registered SBRs.

Narrowly speaking, the defendant may have did himself in by claiming that he only kept the SB upper around for "constituent parts." The trial court found it upper in one piece so it's implied that they didn't believe him. The defendant in Kent was also nailed on four other firearms charges, so his case may have suffered from a "preponderance of charges" stigma.

In my opinion, it's either an SBR or not an SBR. Someone who has a Gen3, 4, or 5 Glock and a VFG laying around shouldn't be guilty of having an AOW, just because it would be easily possible to assemble an AOW from the Glock and the VFG. Anyone who has more than two nickels to rub together probably has something that could be combined or converted into something illegal. Being able to potentially violate the law isn't violating the law (especially in this case), but there you have it.

Your analysis of United States v. Kent, 175 F.3d 870 (11th Cir. 1999), is misleading.

The Court's reasoning, was not solely that it was, "very easy to assemble an illegally configured SBR," from the Colt lower and complete upper with the "short" barrel. The court also noted, "In addition, there was no other lower receiver unit found in Kent's apartment, to which the short-barreled upper receiver unit could be attached and used to create a legal weapon for the purposes of the NFA. Moreover, Kent has never contended that there was a pistol grip or any other piece that he could use to make a legal weapon from this short-barreled upper receiver unit."

It's also important to note the Court followed the reasoning in US v. Thompson/Center Arms, 504US505, 112 S.Ct.2102, 119 L.Ed.2d 308 (1992), and US v. Zeidman, 444F.2d 1051 (7th Cir. 1971). The latter being a case were Zeidman possessed a pistol, and a stock that only fit that pistol, but they were not attached at the time the government found them, but they were in separate drawers of the same dresser.

So in Kent the Court did not say it was a short-barreled rifle because it very easy to assemble the the items that way, they reasoned it was both easy, AND the only possible combination of the available parts.

It is not an accurate analysis of the decision to leave the latter part out.

For those interested in reading the actual decision in Kent, it can be found here:
http://openjurist.org/175/f3d/...united-states-v-kent

The Kent court goes further than both Thompson Center and Zeidman.

In Thompson, the Supreme Court found that Thompson was not liable for manufacturing a Short-Barreled Rifle because the parts it included could also be used to make a legally configured rifle. Fair enough.

In Zeidman, the combination of parts found couldn't be used for anything other than making an SBR, but more than that:

quote:

Upon arriving at Zeidman's apartment, Conroy was shown the MP-40 Schmeiser machine gun, following which defendant produced the 9 millimeter Browning semi-automatic pistol with the detachable shoulder stock. Conroy removed the pistol from the wooden convertible holster-shoulder stock and affixed the shoulder stock to the back of the pistol. Conroy testified that, in his opinion, when so assembled the Browning instrument constituted a short barreled rifle.

United States v. Zeidman, 444 F.2d 1051, 1052-53 (7th Cir. 1971)

In Zeidman, there was evidence that the potential SBR had in fact, been assembled as a complete unregistered SBR.

However, in Kent:

quote:

The short-barreled upper receiver unit was an AR-15-type unit, compatible with AR-15-type lower receiver units. However, the short-barreled upper receiver unit was not attached to the lower receiver unit of this weapon at the time it was found.

United States v. Kent, 175 F.3d 870, 872 (11th Cir. 1999)

Unlike Zeidman, there is no evidence in the Kent opinion that either the defendant himself assembled the parts as an SBR, or that anyone else did so with the defendant's consent (as appears to be implied in the Zeidman facts). If he didn't do it, then he didn't do it.

quote:

Nonetheless, the evidence at trial showed the short-barreled upper receiver unit could be fastened to the Colt AR-15 lower receiver unit through a two-step process. The first step--removing the upper receiver unit that was on the Colt AR-15 rifle--could be accomplished easily by pushing out two pins in the lower receiver unit and then lifting the upper receiver unit away from the lower receiver unit. The second step would be placing the short-barreled upper receiver unit on the lower receiver unit and pushing the two pins back into place to fasten the two receiver units together. This entire process could be completed in less than a minute. ATF Firearms Enforcement Officer Robert Burrows testified that fastening the short-barreled upper receiver unit to the Colt AR-15 lower receiver unit in this way "results in a weapon which is designed and intended to be fired from the shoulder, capable of discharging a shot through a rifle bore[,] and having a barrel length of less than sixteen inches."

United States v. Kent, 175 F.3d 870, 872 (11th Cir. 1999)

In Kent, unlike in Zeidman where the SBR was assembled, the court here is focusing on the fact that it could be assembled, not that it ever was assembled. Yes, I recognize that the court seemingly has more to say that this one factor, but my point here is that there is a difference between a combination of parts that could be assembled into an illegal configuration, and a combination of parts that have been assembled in an illegal configuration either by the defendant or with the defendant's knowledge and apparent consent.

quote:

In addition, there was no other lower receiver unit found in Kent's apartment to which the short-barreled [**22] upper receiver unit could be attached and used to create a legal weapon for purposes of the NFA. Moreover, Kent has never contended that there was a pistol grip or any other piece that he could use to make a legal weapon from this short-barreled upper receiver unit.

United States v. Kent, 175 F.3d 870, 877 (11th Cir. 1999)

I see this, but I'm not sure how this isn't dicta. Here's why. Kent starts out with a complete SP-1 lower that is not registered as an SBR. Then he, separately as far as we know, has an SBR-configured upper (upper). Let's follow the court's hypothetical: say, he does have, a "second lower receiver unit" that is not SBR-registered (note that court doesn't specify that what it is imagining is an SBR-registered lower). How does this second lower receiver change the equation? The upper could just as easily be attached to that second lower as it was to the first lower. There might be more than one configuration, but both would still be illegal.

As to the pistol grip: Are we really going to suggest that having a pistol grip would have saved him in this instance? Isn't this really an intent argument that goes something like this: if he has a bunch of spare parts, then we'd have evidence of his intent to build a legal SBR (or maybe pistol)."

United States v Schrum (1972, ED Va) 346 F Supp 537 would suggest that "firearms" within the NFA, 26 USCS §§ 5801 et seq. should be construed in manner which would not require looking into subjective intent of person charged:

quote:

Congress prohibited the manufacture, possession or transfer of silencers without qualifying that term. It did not say that a person could lawfully practice making these devices until a level of proficiency was achieved where they substantially reduced the noise of a weapon. Therefore, we define a silencer as a device which is designed to reduce the noise of a weapon. This is a practical standard and would not require looking into the subjective intent of the person charged. It would be an objective inquiry into the mechanical functioning of the device. Before any device could be termed a silencer, one of its primary purposes or functions must be to reduce noise levels.

United States v. Schrum, 346 F. Supp. 537, 540 (E.D. Va. 1972)

An upper separated from the lower, with no evidence that the two were ever assembled together does not equate to a functioning mechanical device. Yes, it's persuasive authority, but then, so is Zeidman.

I suppose having a pistol grip would push us more toward Thompson/spare parts/other configurations (with its lenity inclusion), but again:

quote:

the NFA has criminal applications that carry no additional requirement of willfulness. Making a firearm without approval may be subject to criminal sanction, as is possession of an unregistered firearm and failure to pay the tax on one, 26 U. S. C. §§ 5861, 5871. It is proper, therefore, to apply the rule of lenity to resolve an ambiguity in the term "making" a firearm.

United States v. Thompson/Center Arms Co., 504 U.S. 505, 506, 112 S. Ct. 2102, 2104 (1992)

The Supreme court appears to eschew the reading of intent ("willfulness") into "making" a firearm. So, setting aside intent, we are back to the same questions of what difference does a second lower or spare pistol grip make? If intent isn't a factor, then the key to Kent (dicta not withstanding) is how easily the upper and lower go together.

First, thank you all for your responses.
Second, let me make sure I have it right:
1) This will be in Oregon (covering LDD's excellent point on what jurisdiction it will be in)
2) Order the upper, it sits in the safe until the paperwork is done.

or

3)get a pistol specific lower and make a 5.56 pistol, no paperwork required

Is that about right?

The safest way is to send in your paper work and get your lower engraved. Once you get your stamp, then buy your upper. I think this is unnecessary, but there is enough in this thread for you to decide for yourself.

If you build it as a pistol and the lower has never been a rifle and was sold as an "other" then no paperwork is required.

As for all of the legal mumbo jumbo, keep in mind the following:

The Kent decision was almost 20 years ago. The AR is in the wild in far greater numbers now and isn't as "scary" as it once was.

Kent was a gun runner. He was arrested for trying to sell/deal stolen guns. At least one such gun was an illegal full auto.

This particular SBR charge was one of many charges he was convicted on.

The courts ruling was flawed IMO, but the final decision cannot be read without the context of the surrounding facts.

I simply do not think that a citizen who has filed his/her paper work and waiting for their stamp to return will fall under this ruling.

The Kent decision is a gun runner trying to say with a straight face....I did all this other illegal and worse stuff, but that upper was never intended or used as an SBR.

The court simply wasn't having it.

DWill104 - That's exactly why any of my BCM complete lowers have the stocks removed (therefore making them pistols) before they are assembled into anything. I will probably Form 1 all of them eventually, however.

quote:

Originally posted by DMF:
Your analysis of United States v. Kent, 175 F.3d 870 (11th Cir. 1999), is misleading.

The Court's reasoning, was not solely that it was, "very easy to assemble an illegally configured SBR," from the Colt lower and complete upper with the "short" barrel. The court also noted, "In addition, there was no other lower receiver unit found in Kent's apartment, to which the short-barreled upper receiver unit could be attached and used to create a legal weapon for the purposes of the NFA. Moreover, Kent has never contended that there was a pistol grip or any other piece that he could use to make a legal weapon from this short-barreled upper receiver unit."

It's also important to note the Court followed the reasoning in US v. Thompson/Center Arms, 504US505, 112 S.Ct.2102, 119 L.Ed.2d 308 (1992), and US v. Zeidman, 444F.2d 1051 (7th Cir. 1971). The latter being a case were Zeidman possessed a pistol, and a stock that only fit that pistol, but they were not attached at the time the government found them, but they were in separate drawers of the same dresser.

So in Kent the Court did not say it was a short-barreled rifle because it very easy to assemble the the items that way, they reasoned it was both easy, AND the only possible combination of the available parts.

It is not an accurate analysis of the decision to leave the latter part out.

For those interested in reading the actual decision in Kent, it can be found here:
http://openjurist.org/175/f3d/...united-states-v-kent

Not to mention, none discuss why the po-po were executing a search warrant in his apartment to begin with. They weren't door kicking for constructive intent (although in CA that may be a possibility). This was a charge on top of a litany of other charges - Kent was convicted of five separate firearms offenses: possession of firearms (I assume he wasn't supposed to have them for some reason?); possession of a machine gun; possession of a rifle with a barrel length of less than sixteen inches not registered in the National Firearms Registration and Transfer Record; knowingly transporting stolen firearms in interstate commerce; and bartering of stolen firearms.

Assuming you are not dealing in stolen machine guns across state lines, the pistol upper should be fine in your safe for a few months while you wait on the stamp. A pistol lower is cheap insurance if you are paranoid (or just another excuse for a second build! )

I dug into Kent in findlaw, and one of the reasons he was found guilty was the upper had an optic mounted on it with batteries in the optic and a sling which was on the upper that matched the lower. This was what the government used to suggest that possession of the upper was not for parts but to put it on the unregistered lower.

link

quote:

The short-barreled upper receiver unit included an upper receiver assembly, a rifle barrel, a flash suppressor, forward and rear sights, a sling, a scope with batteries to activate the light in the scope, a gas tube, a handguard assembly, a bolt and bolt carrier-all welded or otherwise fastened together as a single, active 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.   The sling on the short-barreled upper receiver unit was similar to the sling on the Colt AR-15 upper receiver unit which had the longer rifle barrel.   The Government contended that this evidence of the short-barreled upper receiver unit being an intact, active unit, with a sling and with batteries in the scope, and the fact that the short-barreled upper receiver unit was easily interchangeable with other AR-15 upper receiver units including the longer-barreled unit on the Colt AR-15 when it was found in Kent's apartment, demonstrated that Kent's intent was to use the short-barreled upper receiver unit as an intact unit as opposed to using the unit for parts.

So you maybe might be good maybe if you don't have accessories on it.

MAYBE