MSP advisory on AR pistols with braces

[alucard0822]

In a theory, lets say I have a registered AR-15 SBR already, and a pistol with brace. I can just remove the brace from the pistol with the intent to use it on existing SBR, and I don't have to register or modify anything, right?

A pistol without a brace is a pistol. A brace is an unregistered firearm accessory that is now considered a stock when added to a firearm.

 

[jcutonilli]

A pistol without a brace is a pistol. A brace is an unregistered firearm accessory that is now considered a stock when added to a firearm.

a brace is considered a stock for federal firearms law, but it is still a pistol under state firearms law.

 

[sygata]

A pistol without a brace is a pistol. A brace is an unregistered firearm accessory that is now considered a stock when added to a firearm.

and a pistol and a brace owned by the same person is a constructive posession, though I could be wrong here.

 

[sygata]

Actually, it applies if you have any legal AR rifle, as the brace could be used with it. So it has a legal purpose and constructive posession should not apply there.

 

[Darkemp]

Actually, it applies if you have any legal AR rifle, as the brace could be used with it. So it has a legal purpose and constructive posession should not apply there.

That seems correct. Likely many of us have parts bins with all the take off’s we replaced with other stocks but also own AR pistols.

 

[jcutonilli]

and a pistol and a brace owned by the same person is a constructive posession, though I could be wrong here.

Constructive possession requires more than just ownership. They need to be in close proximity and it has to be unambiguous that you intend on assembling the two together.

 

[outrider58]

Constructive possession requires more than just ownership. They need to be in close proximity and it has to be unambiguous that you intend on assembling the two together.

The way I'm reading between the lines, if you are caught driving down the road with a now un-stocked/braced AR pistol and an unattached stock in the car, you might have a problem.

On the other hand, if you have an unstocked AR pistol in your home and you have a junk drawer full of AR parts, including extra AR stocks, you probably don't have much to worry about.

Just one example.

 

[Squaregrouper]

I read the thread and couldn't find an answer...
What if someone bought a braced pistol in Maryland and converted it to a MD compliant SBR with the tax stamp in hand (pre ruling). Can they now put the brace or shorter stock on it?
I ask because MSP's advisory says they still consider it to be a pistol.

 

[Bountied]

Constructive possession requires more than just ownership. They need to be in close proximity and it has to be unambiguous that you intend on assembling the two together.

So don't label them?

 

[jcutonilli]

I read the thread and couldn't find an answer...
What if someone bought a braced pistol in Maryland and converted it to a MD compliant SBR with the tax stamp in hand (pre ruling). Can they now put the brace or shorter stock on it?
I ask because MSP's advisory says they still consider it to be a pistol.

The real issue is that you cannot make a "copycat weapon" The current interpretation is that a brace remains a pistol for this determination. A normal shoulder stock SBR is considered a rifle for the "copycat weapon" determination. Semi-auto center-fired rifles need to have an OAL >=29" to be legal, other rifles do not have that limitation.

 

[jcutonilli]

So don't label them?

The presence or absence of a label does not matter.

This is a good summary

The way I'm reading between the lines, if you are caught driving down the road with a now un-stocked/braced AR pistol and an unattached stock in the car, you might have a problem.

On the other hand, if you have an unstocked AR pistol in your home and you have a junk drawer full of AR parts, including extra AR stocks, you probably don't have much to worry about.

Just one example.

 

[Lafayette]

The presence or absence of a label does not matter.

This is a good summary

My understanding of constructive possession is that you only have to have knowledge of and control over the components. “Intent” to create an SBR isn’t required. Proximity to each other of the parts isn’t necessarily required - only that you have dominion/control over them. This is illustrated by why your spouse shouldn’t know the combination to your safe if you have NFA items registered to you as an individual - if she doesn’t know the combo, she doesn’t have control over the items and therefore can’t be inferred to have possession. If the upper and lower are in your safe and a stock is in a drawer and the barrel is less than 16” you could be seen to have possession of an SBR according to the ATF.

Same logic applies to how I’ve always heard you shouldn’t buy all the parts for an SBR until you have stamp in hand.

Please correct me if I’m wrong! (I’m not a lawyer or expert.)

 

[outrider58]

My understanding of constructive possession is that you only have to have knowledge of and control over the components. “Intent” to create an SBR isn’t required. Proximity to each other of the parts isn’t necessarily required - only that you have dominion/control over them. This is illustrated by why your spouse shouldn’t know the combination to your safe if you have NFA items registered to you as an individual - if she doesn’t know the combo, she doesn’t have control over the items and therefore can’t be inferred to have possession. If the upper and lower are in your safe and a stock is in a drawer and the barrel is less than 16” you could be seen to have possession of an SBR according to the ATF.

Same logic applies to how I’ve always heard you shouldn’t buy all the parts for an SBR until you have stamp in hand.

Please correct me if I’m wrong! (I’m not a lawyer or expert.)

If the first part were put into practice, almost everyone submitting a form one, especially in Md, would probably be guilty of that. It just isn't reality.

It's been argued a million different ways on here. With this new brace rule, I'm thinking things will also be looked at a little differently now. Just a hunch.

 

[Lafayette]

If the first part were put into practice, almost everyone submitting a form one, especially in Md, would probably be guilty of that. It just isn't reality.

It's been argued a million different ways on here. With this new brace rule, I'm thinking things will also be looked at a little differently now. Just a hunch.

Cool. Guess it’s one of those “I don’t want to be a test case” situations. Unlikely to occur unless some agent with a burr up his ass got sassy.

 

[outrider58]

Cool. Guess it’s one of those “I don’t want to be a test case” situations. Unlikely to occur unless some agent with a burr up his ass got sassy.

Check out United States v. Thompson/Center Arms

United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992)

United States v. Thompson/Center Arms Co.

supreme.justia.com

 

[Lafayette]

Check out United States v. Thompson/Center Arms

United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992)

United States v. Thompson/Center Arms Co.

supreme.justia.com

Thanks for the reference!

My (limited) understanding of that case was that it turned on the ambiguity of the statute (thus rule of lenity) and NOT on whether constructive possession was actually proved. Indeed, the decision states that “…Congress must have understood "making" to cover more than final assembly, and some disassembled aggregation of parts must be included.”

So it was that the law was ambiguous as to what constituted “making” and not whether the packaging included the necessary components to create an SBR. Stephen Halbrook (the plaintiffs attorney in the Thompson Center case) recently endorsed this; that they didn’t win because of disproving constructive possession but rather because the law was unclear.

 

[outrider58]

Thanks for the reference!

My (limited) understanding of that case was that it turned on the ambiguity of the statute (thus rule of lenity) and NOT on whether constructive possession was actually proved. Indeed, the decision states that “…Congress must have understood "making" to cover more than final assembly, and some disassembled aggregation of parts must be included.”

So it was that the law was ambiguous as to what constituted “making” and not whether the packaging included the necessary components to create an SBR. Stephen Halbrook (the plaintiffs attorney in the Thompson Center case) recently endorsed this; that they didn’t win because of disproving constructive possession but rather because the law was unclear.

Pretty much.

 

[Squaregrouper]

The real issue is that you cannot make a "copycat weapon" The current interpretation is that a brace remains a pistol for this determination. A normal shoulder stock SBR is considered a rifle for the "copycat weapon" determination. Semi-auto center-fired rifles need to have an OAL >=29" to be legal, other rifles do not have that limitation.

Understood.
I found a way to get an MP5 side folder to 29" (with MDS help). I ultimately went with an AR collapsible adaptor so I could legally shoot suppressed.
My question that, based on MSP's advisory, can I (no suppressor or flash hider) legally put a folding stock on my registered SBR that would be <29" OAL? The firearm was legally purchased in MD as a braced pistol and converted to a MD legal SBR.

 

[Bob A]

I eagerly await the transfer of the NFA to the dustbin of history. I don't see how all this over-regulation can stand, in the face of Bruen.

 

[jcutonilli]

My understanding of constructive possession is that you only have to have knowledge of and control over the components. “Intent” to create an SBR isn’t required. Proximity to each other of the parts isn’t necessarily required - only that you have dominion/control over them. This is illustrated by why your spouse shouldn’t know the combination to your safe if you have NFA items registered to you as an individual - if she doesn’t know the combo, she doesn’t have control over the items and therefore can’t be inferred to have possession. If the upper and lower are in your safe and a stock is in a drawer and the barrel is less than 16” you could be seen to have possession of an SBR according to the ATF.

Same logic applies to how I’ve always heard you shouldn’t buy all the parts for an SBR until you have stamp in hand.

Please correct me if I’m wrong! (I’m not a lawyer or expert.)

You are not charged with constructive possession you are charged with possession. Constructive possession is simply a way to demonstrate possession without actual possession. https://en.wikipedia.org/wiki/Constructive_possession
Most criminal statues have a mens rea component, which is where the intent comes into play. https://en.wikipedia.org/wiki/Mens_rea

Here are a few youtube videos describing the issue.