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Trouble?

tipupstipups Member Posts: 48 ✭✭
edited January 2015 in Ask the Experts
Are you setting yourself up for ma whole lot of trouble if you own any other Stevens pistol? Even if you don/t mount the barrel. I don't even think you could use the barrel for an upgrade to a registered AOW. See this auction http://www.GunBroker.com/Auction/ViewItem.aspx?Item=462473950

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    tipupstipups Member Posts: 48 ✭✭
    edited November -1
    I have a friend, who has a friend (you never know who monitors these forums) who has a Remington Nylon 66, .22 rifle that he's had since the early 70's. It's probably got more than 30,000 rounds through it.
    Lately, it has begun to double and triple on a regular basis, almost always doubles every trigger-pull.
    There have been several incidences where the whole magazine has gone off, several times all 18 rounds on a single trigger-pull. It's kind of neat when it happens, though totally uncontrollable---once it starts, he can't stop it.
    Obvious dangers aside, I'm told that the Feds would consider it a machine gun, and can arrest him for simply not getting it fixed.
    Like I said, it's pretty cool, and quite novel, and he'd rather not fix it, but he'd rather not go to jail either.
    Any Jailhouse Lawyers out there know what the BATFE would do with something like this?
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    JunkballerJunkballer Member Posts: 9,199 ✭✭✭✭
    edited November -1
    How so ? it is what it is.............parts

    "Never do wrong to make a friend----or to keep one".....Robert E. Lee

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    tipupstipups Member Posts: 48 ✭✭
    edited November -1
    Correct me if I am wrong, and I am just asking the experts, If you have the parts in your possession that will make a pistol into a short barreled shotgun, that's a ATF no-no. Granted the possession of the barrel alone is no problem. If you own any of the several Stevens tip-up pistols that said barrel would fit, Are you not then in trouble? All the other parts are not in question here.
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    charliemeyer007charliemeyer007 Member Posts: 6,579 ✭✭✭
    edited November -1
    I agree the laws were written by morons. I have a hacksaw, does that make owning shotguns and rifles at the same time illegal?

    If OSHA wrote the firearms laws we would be required to use suppressors.

    I think they are just parts until you have the stuff to actually use them.
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    beantownshootahbeantownshootah Member Posts: 12,776 ✭✭✭
    edited November -1
    quote:Originally posted by tipups
    Correct me if I am wrong, and I am just asking the experts, If you have the parts in your possession that will make a pistol into a short barreled shotgun, that's a ATF no-no. Granted the possession of the barrel alone is no problem. If you own any of the several Stevens tip-up pistols that said barrel would fit, Are you not then in trouble? All the other parts are not in question here.

    Well, as a matter of practice, you aren't "in" trouble until law enforcement learns about your illegal gun and decides to do something about it, and I think its a little more complicated than the way you put it, but you've got the general gist of it.

    The doctrine of "constructive possession" means that if you have control over all parts necessary to assemble a gun into an illegal configuration, you could be prosecuted the same as if you possessed the illegal gun. More simply, disassembling an illegal gun isn't a defense to illegally owning it.

    But context matters, and so does intent. Without turning this into a legal treatise I'm not qualified to make, you may find this real world example instructive:

    http://blog.princelaw.com/2009/9/1/florida-man-arrested-for-constructive-possession-of-an-sbr/

    As a counterexample, you are allowed to own both an AR pistol and rifle, even though in about 60 seconds you could pop the uppers off both, put the pistol upper onto the rifle, and create an illegal short barreled rifle. Just having the ability to create an illegal gun this way, doesn't mean you have the INTENT, and absent EVIDENCE that you have either assembled the gun illegally, or intend to do so, there is no crime.

    Long and short of it is, if you don't have all the parts necessarily to assemble an illegal weapon, then you're fine. So that bunch of parts in the auction, by itself, would be fine.

    If you have control over a set of parts that *could* be used to assemble an illegal weapon, that's when things get dicier. *JUST* owning the parts may not be by itself prosecutable, its going to depend on the exact circumstances, but it could be.

    In this particular case, since it would be hard to think of any other reason why you'd be owning a short shotgun barrel and a pistol onto which it could be illegally mounted, just owning those things together might be construed as intent.

    On the other hand, if you were to have the barrel delivered to a gunsmith with instructions to engrave some shallow rifling into the bore, well,at that point it wouldn't really be a "shotgun" barrel anymore.

    EDIT: quote:

    I agree the laws were written by morons. I have a hacksaw, does that make owning shotguns and rifles at the same time illegal?
    No it does not, until you actually cut down the barrel into an illegal length. Having the ability to create an illegal weapon isn't by itself illegal (ie pretty much everyone owns tools, right?). What's illegal is actually owning one.

    To be clear 'constructive possession' isn't a law, its a doctrine of interpreting the law. Its one thing for the BATFE to try and get a prosecution for "constructive possession" and quite another to actually get one.

    Judges and juries don't always buy this sort of thing, especially nowadays as more and more Americans own guns, and as general support for gun restriction is eroding. This, for example, is why NOW you can legally switch guns from pistol to (legal) rifle configuration and back again, where as the BATFE took the position only 5-6 years ago that doing so was illegal.

    As to the "stupidity" of same, well, I think there is plenty of room to argue whether or not machine guns or "short barreled shotguns" should be restricted to begin with. Remember, in practice both these things **ARE LEGAL** in many jurisdictions and have been for decades, you just have to pay extra and jump through paperwork hoops first. So in practice, the laws just make them more expensive, that's all. Also, consider that the BATFE doesn't write these laws. . .the US Congress does.

    Whether or not they "should" be illegal is a different question. Stipulating that they are illegal, and the BATFE's mandate is to enforce the laws, I don't think "constructive possession" is itself unreasonable. As above, the main point of this is to prevent someone who has an illegal gun from taking it apart and then acting as a defense to owning it. Otherwise, there would be no effective barrier to anyone owning an illegal weapon. IE, I pull the control group out my machinegun, its not a machinegun; I take the barrel off a SBS, its not a short-barreled shotgun, etc.

    Like everything else, the "devil" is in the details. Its not that "constuctive possession" exists as a legal doctrine, its how the BATFE chooses to use it that matters.

    Speaking in general, the BATFE doesn't get too excited about .410 pistols. The fact is, there are a zillion perfectly legal ones on the market now (eg .410 derringers, Taurus Judge, etc) and as above, these are LESS dangerous than conventional pistols of similar caliber. Scratch a few (purely cosmetic) rifles into the tube of this "short barrel shotgun" and it becomes a perfectly legal pistol. BATFE gets a lot more worked up over cut down conventional (ie 12 gauge) shotguns.
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    competentonecompetentone Member Posts: 4,698 ✭✭✭
    edited November -1
    quote:Originally posted by beantownshootah
    quote:Originally posted by tipups
    Correct me if I am wrong, and I am just asking the experts, If you have the parts in your possession that will make a pistol into a short barreled shotgun, that's a ATF no-no. Granted the possession of the barrel alone is no problem. If you own any of the several Stevens tip-up pistols that said barrel would fit, Are you not then in trouble? All the other parts are not in question here.

    Well, as a matter of practice, you aren't "in" trouble until law enforcement learns about your illegal gun and decides to do something about it, and I think its a little more complicated than the way you put it, but you've got the general gist of it.

    The doctrine of "constructive possession" means that if you have control over all parts necessary to assemble a gun into an illegal configuration, you could be prosecuted the same as if you possessed the illegal gun. More simply, disassembling an illegal gun isn't a defense to illegally owning it.

    But context matters, and so does intent. Without turning this into a legal treatise I'm not qualified to make, you may find this real world example instructive:

    http://blog.princelaw.com/2009/9/1/florida-man-arrested-for-constructive-possession-of-an-sbr/

    As a counterexample, you are allowed to own both an AR pistol and rifle, even though in about 60 seconds you could pop the uppers off both, put the pistol upper onto the rifle, and create an illegal short barreled rifle. Just having the ability to create an illegal gun this way, doesn't mean you have the INTENT, and absent EVIDENCE that you have either assembled the gun illegally, or intend to do so, there is no crime.

    Long and short of it is, if you don't have all the parts necessarily to assemble an illegal weapon, then you're fine. So that bunch of parts in the auction, by itself, would be fine.

    If you have control over a set of parts that *could* be used to assemble an illegal weapon, that's when things get dicier. *JUST* owning the parts may not be by itself prosecutable, its going to depend on the exact circumstances, but it could be.

    In this particular case, since it would be hard to think of any other reason why you'd be owning a short shotgun barrel and a pistol onto which it could be illegally mounted, just owning those things together might be construed as intent.

    On the other hand, if you were to have the barrel delivered to a gunsmith with instructions to engrave some shallow rifling into the bore, well,at that point it wouldn't really be a "shotgun" barrel anymore.

    EDIT: quote:

    I agree the laws were written by morons. I have a hacksaw, does that make owning shotguns and rifles at the same time illegal?
    No it does not, until you actually cut down the barrel into an illegal length. Having the ability to create an illegal weapon isn't by itself illegal (ie pretty much everyone owns tools, right?). What's illegal is actually owning one.

    To be clear 'constructive possession' isn't a law, its a doctrine of interpreting the law. Its one thing for the BATFE to try and get a prosecution for "constructive possession" and quite another to actually get one.

    Judges and juries don't always buy this sort of thing, especially nowadays as more and more Americans own guns, and as general support for gun restriction is eroding. This, for example, is why NOW you can legally switch guns from pistol to (legal) rifle configuration and back again, where as the BATFE took the position only 5-6 years ago that doing so was illegal.

    As to the "stupidity" of same, well, I think there is plenty of room to argue whether or not machine guns or "short barreled shotguns" should be restricted to begin with. Remember, in practice both these things **ARE LEGAL** in many jurisdictions and have been for decades, you just have to pay extra and jump through paperwork hoops first. So in practice, the laws just make them more expensive, that's all. Also, consider that the BATFE doesn't write these laws. . .the US Congress does.

    Whether or not they "should" be illegal is a different question. Stipulating that they are illegal, and the BATFE's mandate is to enforce the laws, I don't think "constructive possession" is itself unreasonable. As above, the main point of this is to prevent someone who has an illegal gun from taking it apart and then acting as a defense to owning it. Otherwise, there would be no effective barrier to anyone owning an illegal weapon. IE, I pull the control group out my machinegun, its not a machinegun; I take the barrel off a SBS, its not a short-barreled shotgun, etc.

    Like everything else, the "devil" is in the details. Its not that "constuctive possession" exists as a legal doctrine, its how the BATFE chooses to use it that matters.

    Speaking in general, the BATFE doesn't get too excited about .410 pistols. The fact is, there are a zillion perfectly legal ones on the market now (eg .410 derringers, Taurus Judge, etc) and as above, these are LESS dangerous than conventional pistols of similar caliber. Scratch a few (purely cosmetic) rifles into the tube of this "short barrel shotgun" and it becomes a perfectly legal pistol. BATFE gets a lot more worked up over cut down conventional (ie 12 gauge) shotguns.




    Excellent explanation/comments.

    I would add, regarding what I've highlighted in red above, one's intention could be to build a legal short-barreled-shotgun. There is no specific guideline suggesting that one must have bought the tax-stamp before one can acquire the parts to build an NFA item.

    Since 1986, with no new tax-stamps being issued for machine-guns, one could not use such an argument for parts that could be readily assembled into a machine-gun, but for SBRs and SBSs, having the parts, with an intention to build a legal NFA item, could be a perfectly acceptable defense if one was somehow caught up in some aggressive law enforcement action.
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