Stator wrote: California law defines a strict process for updating the CCR's... California Code of Regulations. THis process takes about 30 to 45 days and includes publishing the intent to update the CCRs and hold hears. More so if small businesses are affected. Bweise, as you must know, most FFL's in this state are small businesses.
Any changes to the CCRs are not enforceable until the Secretary of State certifies the changes and publishes the updated CCR. California law does allow an exemption to this lengthy process if a statute authorizes the exemption. That authorization is PC 12276.5 which is updating the Roberti-Roos list through the use of the CCRs and granted by a Superior Court in a county with not less than 1M population.
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Updates to CCR as per AW law can be fast-tracked due to specific language in the AW laws (12276.5(h)) which says that administrivia can be bypassed. The AW statutes specifically authorize this exemption. Because of this, small business matters (or things like environmental impact, etc.) are irrelevant here. I gather the term for these are "urgency measures". No, the DOJ does not update CCR directly - they just transmit to Sec of State's office, but the usual delays in posting regulations by Sec State are bypassed and minimized because of this wording in 12276.5(h):
12276.5(h)". . . . . The Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section."This will likely be faster - even with propagation time thru Sec State's office - than a 12276.5 add-on motion. Perhaps they can rapidly get on a calendar, I dunno. I really believe a bureacracy with authority to do something will not go to a court to validate doing something they can already do themselves (and which Harrott clearly affirmed they can do, for AR/AK series).
There exists only two lawful methods for the AG to update the CCR's. I've outlined these at least three times... two here and one over in calguns. I do not understand why you have a hard time grasping this. No administrative office has the right to arbitrarily update the CCRs on their own which is what you seem to champion.
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Yes, only two lawful methods exist. I'm well aware of them and have prob posted about them as many or more times as you have. I belive I mentioned both of 'em in my FAQ. I may have missed one or more of your posts about some variation of this, but I think I got the jist of another one I saw. This appears to be a new tack you are taking...
The DOJ Firearms Division indeed has the right to write and create regulations for their field of administration. These regulations have the force of law - administrative law (unless challenged in court, but they are given "great weight" by courts. esp technical matters and definitions.) No, the CCRs don't get updated immediately - they go thru a pipeline in CA Secy State's office. We just casually speak of DOJ updating the CCR - that's just the net effect overall.
The AW law I quoted above specifically reduces the transit time here - especially as this is merely adding item(s) to the Sec 979.11 list and does not involve writing/editing language for ease of reading, avoiding conflicts with other laws, regulations, etc.
This has been outlawed since at least the 70's in our state. There is much case law including at the state supreme court level that upholds this.
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I do agree with you about this general - IN OTHER SITUATIONS. Again, CA AW law was written to specifically be fast-tracked for adding items to the list and is why the verbiage about Sec 11340 of CA Administrative code was included in 12276.5(h)
The Harrott decision does not change this at all.
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Absolutely correct. Harrott said nothing about timing of posting, but just that the Calif Code of Regulation should be updated with new guns to be banned as the central 'gold standard' reference, and that trial courts, etc. cannot determine 'series' membership. It affirned the DOJ/AG can do this without court intervention - but only for ARs/AKs. It affirmed that nonAR/nonAK guns MUST go thru the PC12276.5 add-on (emergency, then permanent) declaration procedures. This is why Harrott uses two separate terms: the DOJ 'identifies' new AR/AK series members, but the court add-on procedure 'declares' new assault weapons by name.
The real question is when the ban kicks in: when the DOJ says it does (and which would likely stop all sales/transfers/importation) of previously off-list lowers (which would be prudent to not disregard!), or when actual CCR sec 979.11 gets published.
And, you can bet that if the AG decides to update the CCR all on his own, the NRA and CRPA will sue.
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Again, the DOJ does not update CCR on its own. As it writes regulations, they are transmitted to Sec State's office, then get published. Normally there are some more procedures, but the AW law was expressly written so these lists are fast-tracked so they can run thru Sec State's office (relatively) quickly. I'd bet that the time from DOJ 'naming' new series members to getting on to published CCR 979.11 is 30 days or less.
The NRA etc will not sue because there is NO basis to sue. The DOJ and Sec State are, or will be, doing their own things at the right time. Furthermore, there is notice of this activity (names withheld, if you can guess, please don't mention it) and the intent is to stand back and "let it happen".
They already had done so with Lockyer on this exact same problem before (hence the January 23rd date of registration). Except Lockyer ceded and the suit was dropped.
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The Jan 23d 2001 AR/AK reg cutoff date was pre-Harrott. (I know of no NRA suit in response to the Supreme Court Kasler decision. )
The 1/23/01 reg cutoff date was a direct result of the Aug 16th 2000 Kasler decision which apparently kicked in Aug 22, 2000. The Kasler decision was the result of various gun organizations suing over constituionality of Roberti-Roos (not SB23). Kasler was held to be valid and constitutional and as a side effect it upheld the 'series' terminology in broad sense. Once that kicked in, no AR/AK 'series' gun or receiver could be DROSed after that. It was kinda moot for many folks since SB23 reg period was already in place and was overlapping, and few were thinking of getting bare receivers then. But as of that date, no further AR/AK receivers were sellable/transferrable etc. There was a two-month half-hearted promulgation effort to offer 'guide' to assault weapons, before the start of a separate 90 day reg period beginning Oct 22 2000 but this likely was not necessary as the court's series determination took immediate effect. I believe they coulda started the 90 day reg window right then - again, kinda moot since SB23 reg period was running in parallel.
If Lockyer does not use 12276.5 which requires a court to issue an immediate junction while the CCR's are updated, he probably will be sued by the same gun control advocates who sued Lundgren before.
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That prior suit w/Lungren was for DOJ arrogating legislative privilege by extending the reg period on its own, trying to assist in compliance.
You can sue a ham sandwich. The DOJ has not made new law here, just doing their regulatory gig. The only suit even conceivably possible would be a "force the DOJ to act" suit. The DOJ has the power to identify AR/AK guns, can update the list and transmit it to Sec State's office to get it into CCR.
BUT I HAVE TO SAY THIS APPEARS LIKE A MOOT POINT. It is looking more and more like the AG will not update the list and keep the same scare tactics as status qoute. His department now is not just calling up the manufacturers and leaning on them not to ship to CA, he is also calling out of state distributors/dealers. If the AG is going to update the CCR imminently, as you believe, there would be no reason for this.
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A shamed bureaucracy realizing they can scare out of staters who don't know the PC 12275-12290 AW law and/or the
Harrott decision. The lowlevel guys on the phone are still posing like Kasler is in force.
No he will keep those of us with no-name lowers to keep staring at them in temptation, or assemble this as legal fixed-mag, 10rounders. The problem with the later is that nobody really knows what homesmithing of fix-mag, 10rounders is really legal in the eyes of the DOJ firearms division.
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We have an absolutely clear definition of what a detachable magazine is by DOJ regulation that's been around for awhile. It's in CCR section 978.20 and can be seen at
http://ag.ca.gov/firearms/regs/sb23.pdf
THE MOST SERIOUS CHALLENGE is the AG using his office powers which is the ability to prosecute. We may be getting letters to turn over the lowers or face prosecution charges.
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That woulda happened to the first folks, esp the folks asking for all the "is this brand legal?" letters. Iggy coulda camped out at the half-dozen know transfer FFLs in CA and arrested buyers and FFLs. That hasn't and won't happen, esp by the DOJ - beside a solid Harrott decision that they acknowledge at higher levels, their issuance of letters does mitigate any attempts they'd want to make (lenity issues) - and that would apply to DOJ kicking a local DA into action too. [An independent local DA could charge, but Harrott is clear that trial courts can't determine series membership beforehand, before it's listed.]
, you will see some redflags that I will not publish here. Remember, the AG does not need to prove to send out letters asking to abandon the lowers, only the appearance of improprietary. So there is your clue... go forth and seek the truth!
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Please PM me here or at CalGuns with what you think are redflags.
Bill W.
San Jose, CA