Selling preban ARs in ban states question

[Elkins45]

While browsing Gunbroker I noticed there were some rifles listed as "preen" that were priced fairly high, especially in this buyer's market. Even more remarkably I noticed that they were receiving bids. That's when I figured out they were being purchased by people in states where older guns are grandfathered. I have a gun built on a lower I bought in 1991 that I would like to sell--gets me some $$$ and allows people in occupied states a small taste of freedom. Win-win.

I have learned from previous questions that to ship it as a rifle (and not pay overnight rates) it has to travel with a 16"+ upper attached. That's fine, but the upper it was built with just happens to be the only A1 I own and I would like to keep it.

So here's the question: are there any state laws that would prohibit selling a preban lower with a new upper and calling it a preban rifle? To my mind since the lower is the gun this wouldn't matter---and the new upper is essentially just a replacement barrel---but "to my mind" isn't a legal standard.

Can I sell a preban gun to a ban state with a postban upper?

 

[Legionnaire]

I have learned from previous questions that to ship it as a rifle (and not pay overnight rates) it has to travel with a 16"+ upper attached.

Tagging in. I've never heard of this requirement before and am interested in the responses you get. I don't see why you couldn't just sell and ship the lower--to an FFL, of course. If this really is a restriction, could you have your buyer send you an upper to attach to the lower before you ship it back? Since an upper is not a firearm, he or she could ship it direct to you.

 

[Elkins45]

Tagging in. I've never heard of this requirement before and am interested in the responses you get. I don't see why you couldn't just sell and ship the lower--to an FFL, of course. If this really is a restriction, could you have your buyer send you an upper to attach to the lower before you ship it back? Since an upper is not a firearm, he or she could ship it direct to you.

Here’s the thread: https://www.thehighroad.org/index.php?threads/ship-ar-lower-via-usps.832746/ I misremembered because the thread was only about the USPS, not UPS.

I still wonder about state laws in the ban states, which is why I would prefer to sell a complete gun.

 

[Legionnaire]

Thanks for the link. Were I you, I'd explore the cost of having a local FFL ship it for you. And an FFL in the buyer's state might be able to tell you if they will receive a lower on behalf of a buyer.

I'm still interested to hear what the legal eagles have to say. Good luck!

 

[Frank Ettin]

...I figured out they were being purchased by people in states where older guns are grandfathered....

First, you (or actually the erstwhile buyers of those rifles) might be operating on a false premise, at least in some States. AFAIK at least some so called "grandfathering" of rifles apply only to rifles which were owned and in the possession of (and in some cases, perhaps, registered by) residents of the State before that State's regulation of certain semi-automatic rifles became effective. So post ban acquisition of a rifle subject to the ban would be illegal even if the rifle were manufactured pre-ban.

That's the way it worked in California, and I wouldn't be surprised if it works that way in some of the other States regulating certain semi-automatic rifles. And the laws would probably, at least in some cases, also prohibit someone from moving into the regulating State with a rifle subject to the ban. I'm not going to do a bunch of research here, but if anyone wants to do the research those issues will need to be looked at.

Second, it's probably impossible to answer your core question categorically. I suspect that there is some state-to-state variation in the laws regulating certain semi-automatic rifles. It might be a different answer for each State.

 

[Elkins45]

First, you (or actually the erstwhile buyers of those rifles) might be operating on a false premise, at least in some States. AFAIK at least some so called "grandfathering" of rifles apply only to rifles which were owned and in the possession of (and in some cases, perhaps, registered by) residents of the State before that State's regulation of certain semi-automatic rifles became effective. So post ban acquisition of a rifle subject to the ban would be illegal even if the rifle were manufactured pre-ban.

That's the way it worked in California, and I wouldn't be surprised if it works that way in some of the other States regulating certain semi-automatic rifles. And the laws would probably, at least in some cases, also prohibit someone from moving into the regulating State with a rifle subject to the ban. I'm not going to do a bunch of research here, but if anyone wants to do the research those issues will need to be looked at.

Second, it's probably impossible to answer your core question categorically. I suspect that there is some state-to-state variation in the laws regulating certain semi-automatic rifles. It might be a different answer for each State.

I have learned that it used to be OK in Connecticut, but a recent change in the law no longer allows the rifles to be purchased. In fact, grandfathered rifles can’t even be transferred to heirs.

It would appear there are a lot of people on a GunBroker who don’t know this because they are listing guns as “CT legal.”

EDIT:
And now I find out that I'm wrong about CT because subsequent legislation specifically exempted any "assault weapon" made before 1994.

http://ccdl.us/blog/2013/10/17/preban-assault-weapons/

 

[Legionnaire]

As Frank said, you'll have to check with each state. I lived in NY during the original ban. At that time, pre-ban rifles were grandfathered. A lot of guys bought Colt HBARs and then rebuilt them the way they wanted. One just had to be able to demonstrate (mostly by serial number) that the lower had been built into a rifle before the ban took effect; as I recall, stripped lowers were not grandfathered, even if they were manufactured before 9/94. I'm sure all that has changed with NY's SAFE Act. Glad I don't live there any more.

 

[Spats McGee]

I have learned from previous questions that to ship it as a rifle (and not pay overnight rates) it has to travel with a 16"+ upper attached.

I was unaware of this requirement and took a peek at the other thread that was linked above. Do you happen to have a link to that reg?

So here's the question: are there any state laws that would prohibit selling a preban lower with a new upper and calling it a preban rifle? To my mind since the lower is the gun this wouldn't matter---and the new upper is essentially just a replacement barrel---but "to my mind" isn't a legal standard.

Can I sell a preban gun to a ban state with a postban upper?

As others noted, that may vary from state to state. I think the question of grandfathering is one to which you should pay close attention.

 

[Elkins45]

I was unaware of this requirement and took a peek at the other thread that was linked above. Do you happen to have a link to that reg?

https://pe.usps.com/text/pub52/pub52c4_009.htm

Note that this applies to the Post Office. I'm not certain what would happen if you boxed up an assembled lower with an attached stock and took it to UPS and said "I'm mailing a rifle." I know it wouldn't be a crime, because UPS is allowed to carry handguns from non-FFLs. My worry would be if they decided to open the box and then declared it to not be a rifle. My gut feeling is that the worst they could do is to make you pay the overnight rate...but my gut doesn't make the rules.

 

[Spats McGee]

Thanks for the link. I'll take a look at that.

 

[Frank Ettin]

Let's walk through the USPS rules. See USPS Publication 52, Part 4, Section 43 :

• First, let's look at what is mailable.
  
  
  • Under 432.3:
    

    Except under 431.2, unloaded rifles and shotguns are mailable. Mailers must comply with the rules and regulations under 27 CFR, Part 478, as well as state and local laws. The mailer may be required by the USPS to establish, by opening the parcel or by written certification, that the rifle or shotgun is unloaded and not ineligible for mailing. The following conditions also apply:...

    
    431.2 refers to short barrel rifles and shotguns which are not mailable.
    
    
  • But what is a rifle and what is a shotgun for the purpose of 432.2? "Rifle" and "shotgun" are defined at 431.4:
    

    A rifle is a shoulder weapon having a barrel that is 16 inches or more in length. A shotgun is a shoulder weapon having a barrel that is 18 inches or more in length. Rifles and shotguns have an overall length of 26 inches or greater and cannot be concealed on a person.

    
    
  • So a frame or receiver can not be a rifle or a shotgun. A frame or receiver doesn't have a barrel, nor is its overall length 26 inches or longer.
    
    
  • Therefore a frame or receiver can not be a rifle or shotgun mailable under 432.2.
  
  
• Then what is not mailable.
  
  
  • Under 432.2 (emphasis added):
    

    Handguns and other firearms capable of being concealed on the person are nonmailable unless mailed between the parties listed in this section,...

    
    The persons referred to who under the regulation may mail a handgun or other firearm capable of being concealed upon the person do not include an ordinary, private citizen.
    
    
  • A a frame or receiver is not a handgun as defined at 431.2, nor is it a rifle or shotgun defined at 431.4, but is it a "firearm capable of being concealed on the person"?
    
    
    • "Firearm" is defined at 431.1 (emphasis added):
      

      ...a. Firearm means any device, including a starter gun, which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device; but the term shall not include antique firearms (except antique firearms meeting the description of a handgun or of a firearm capable of being concealed on a person).
      
      b. Firearm frame or receiver is the part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel....

      
      
    • So a a frame or receiver, as the part of the firearm providing the housing for the hammer, bolt or breechblock, and firing mechanism, is, all by itself, a firearm.
      
      
    • Also, physically a a frame or receiver is small enough to be concealed upon the person.
      
      
    • With regard to concealability the regulations provide, at 431.2.b (emphasis added):
      

      b. Other firearms capable of being concealed on the person include, but are not limited to, short-barreled shotguns and short-barreled rifles.

      
      A a frame or receiver will be smaller than at least most short barrel rifles or shotguns and so would be at least as concealable.
      
      
    • Furthermore, a a frame or receiver is not, by itself, a rifle. First, it doesn't fit the regulation's definition of a rifle (432.4), but also, it may be used to construct, whether legally or not, a handgun or a short barrel rifle. Therefore, a stripped lower receiver is not necessarily a rifle part.
    
    
  • Therefore, a frame or receiver is, for the purpose of the USPS regulations and the restrictions on mailing firearms which are handguns or other firearms capable of being concealed upon the person, other firearms capable of being concealed upon the person.
  
  
• Therefore a frame or receiver is not mailable under USPS regulations by a non-licensee.

 

[ID-shooting]

I did this a while back. Had a 4 digit Colt commercial lower, confirmed manufacture date with email from Colt. Posted on line, got crazy high offers. Got a copy of thier FFL, had my FFL do a FFL to FFL tansfer. Buyer transfered from his FFL. All done in less than a week. Made over $1k in profit on that lower. I didn't worry so much about thier laws as I posted clearly that 1) They were responsible knowing for thier own laws. 2) I would only have my FFL send to another FFL. 3) Would only ship after funds cleared. 4) There would be no refunds whatsoever for being denied or otherwise not able to proceed with transfer because of thier state's dumb laws. Still had some grumbling over those terms but ignored those and only delt with peple who accepted my terms.