A Short Barrel rifle question?????

[Renegade]

Feel free to point out where in the US Code "constructive possession" is defined. "machine gun", is defined, "silencer" is defined, "firearm" is defined, etc., but the phrase "constructive possession" is not part of the US Code. It is Internet jargon, and has no legal meaning, thus does not exist.

You either have a machine gun or you do not. Does not matter if it is loaded, unloaded, in parts, or fully assembled. All 100% constitutional.

Any idea that an unassembled machine gun is/should be legal while an assembled one should not is nonsense. They are the same thing.

 

[MuzzleFlash]

Gunshot

I'm glad you seem to prefer to evaluate whether or not constructive possession is indeed a real legal term and whether or not it applies to firearms components. Here are some links you may find useful in your evaluation:

Ref # 1 (Legal definition)
Ref # 2 (Legal definition used in approved jury instructions in firearms cases)

These are but two examples, one from the US courts. Interestingly, "actual possession" is another legal term and is also not explicitly defined in the NFA or in other acts where it applies. However that does not mean that actual and constructive possession aren't germane to firearms law and they certainly are not "internet myths". They are legal terms and they are used by the courts to refer to the text of the statutes.

With regard to possession of MG parts, the SCOTUS has effectively upheld the NFA ban on actual and constructive possession of certain combinations of MG and SBR components with a uselessness test. From the Thompson Center case:
...
We also think that a firearm is "made" on facts one step removed from the paradigm of the aggregated parts that can be used for nothing except assembling a firearm. Two courts to our knowledge have dealt in some way with claims that, when a gun other than a firearm was placed together with a further part or parts that would have had no use in association with the gun except to convert it into a firearm, a firearm was produced. See United States v. Kokin, 365 F.2d 595, 596 (CA3) (carbine together with all parts necessary to convert it into a machinegun is a machinegun), cert. denied, 385 U.S. 987 (1966); see also United States v. Zeidman, 444 F.2d 1051, 1053 (CA7 1971) (pistol and attachable shoulder stock found "in different drawers of the same dresser" constitute a short-barreled rifle). Here it is true, of course, that some of the parts could be used without ever assembling a firearm, but the likelihood of that is belied by the utter uselessness of placing the converting parts with the others except for just such a conversion. Where the evidence in a given case supports a finding of such uselessness, the case falls within the fair intendment of "otherwise producing a firearm." See 26 U.S.C. § 5845(i).[fn5]


The specific example the SCOTUS highlighted where a pistol was placed in a drawer and the conversion part in another drawer falls right in line with the legal definition of constructive possession. It is appropriate to use that term to describe one of the typrs of illegal possession under the NFA and GCA.

What I objected to was Renegade's assertion that constructive possession w.r.t. firearms or MG parts in particular was an "internet myth".

Regarding constitutionality of possessing parts, I think the second amendment should obliterate all restrictions on law abiding citizens with regard to small arms - including constructive possession of MG parts. The SCOTUS doesn't agree so I abide by the law no matter how much I despise it. I also think it is a slippery slope. With the SCOTUS logic, why not outlaw possession of "How to" books by non-SOTs and non-LEOs since they are useful only for performing an illegal conversion?

 

[RoverDave]

Thanks for the informative post MuzzleFlash. It's always nice to see some real data to back up a post.

 

[Renegade]

Well, you still have not shown where in US Code "constructive possession" is defined like I asked, but I will let it drop since we both know it is not there. But if you find, let me know. I can't.

http://www4.law.cornell.edu/uscode/18/921.html

With the SCOTUS logic, why not outlaw possession of "How to" books by non-SOTs and non-LEOs since they are useful only for performing an illegal conversion?

Because the court generally frowns on prior restraint with regard to first amendment issues.

Second, it is entirely possible to use such a book for a legal conversion. For example, one could be in possession of a legal registered Drop in Sear, and yet have no idea how to make it work. Thus, purchase or possession of one of these so-called books would have legitimate uses, and aid in a lawful conversion.

SCOTUS rulings have been very good, and very consistent. The only problem is they do not make enough of them. In TC, they properly understood the changes to GCA68 WRT to parts/MG, and did not apply them to parts/SBR. This was correct.

 

[Gun Shot]

I appreciate your view Renegade, and fully understand where you are coming from. Thank you.

I, however, do not plan on personally testing it, for my own reasons.

MuzzleFlash, thank you for the information you provided. I fully agree with this quote;

Possession includes both actual and constructive possession. A person who has direct physical control of something on or around his or her person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it.

By saying I fully agree, I do not mean that I share the same view or interpretation of the law, but I do believe that the U.S. government/State governments do, and that's the way they would manipulate it if needed.

Again, I have nothing to back this up, it is just my own personal opinion.