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Posted: 1/19/2006 10:27:11 PM EDT
[Last Edit: 1/19/2006 10:27:47 PM EDT by tenround]
What possible outcomes can you think of for California Legal Lowers other then the lowers being added to the list or not? What other options are available to th CA DOJ?
Link Posted: 1/19/2006 10:47:21 PM EDT
I don't think that the CA DOJ has any other options besides choosing to list the lowers or not. Any other approaches would require new legislation, and that would need to come from the legislature. I would bet that such legislation will be introduced eventually and quite possibly passed and signed into law whether the DOJ lists these new lowers or not. I don't approve of that, but history has shown that the CA legislature generally doesn't agree with me on such things.
Link Posted: 1/19/2006 11:36:35 PM EDT
Buyback program like what happened with the SKS Sporters.
Link Posted: 1/20/2006 4:53:56 AM EDT
Buyback..... bleh.... Boating accident, channel islands, oh yeah, DEEP, bummer...
Link Posted: 1/20/2006 5:26:01 AM EDT
From another thread:

The choices for the DoJ are:

1) Do nothing;
2) Go back to the Legislature to amend the law so that it can be enforced;
3) Hire a staff of four whose full time job is to add model numbers to the list (er, database) twice a day as they appear on the market;
4) Plan B, which is something that doesn't require legislation, but which is a permanent solution to the "loophole."

1) and 2) are no risk to the DoJ (they are already explictly allowing fixed-magazine ARs into the state). 3) seems impractical to me, but maybe it's a chance for a bureaucrat to build a new empire. I have no idea what 4) might be, but trying to come up with it might be what is taking the DoJ so long to act.

My lowers are sitting on the table behind me, waiting for the shoe to drop. They are very patient lowers.
Link Posted: 1/20/2006 6:15:02 AM EDT
Link Posted: 1/20/2006 6:50:20 AM EDT
[Last Edit: 1/20/2006 6:51:27 AM EDT by AR15fan]
1. The do nothing approach. Noban lowers remain for sale. Becomming commonly availble in every guns hotp. Prices dfall and you are limited to making a FABforgery out of it.

2. DOJ adds the lowers to the list and you can assemble them into AW's after registration.
2a. DOJ adds the lowers to the list and claims assembling them is "manufacturing" an AW.

3. SKS-D like buy back.

4. New class of AW's limited to FAB10 type rifles.

5. New sweeping ban on all magazine fed detachable mag semi autos.

1 or 2, followed later by #5, are most likely IMO.
Link Posted: 1/20/2006 8:11:23 AM EDT

Originally Posted By AR15fan:
1. The do nothing approach. Noban lowers remain for sale. Becomming commonly availble in
every gun shop. Prices fall and you are limited to making a FABforgery out of it.



Um yes, could happen, we have indications this is NOT happening, list will be updated fairly soon.


AR15fan wrote:
2. DOJ adds the lowers to the list and you can assemble them into AW's after registration.




2a. DOJ adds the lowers to the list and claims assembling them is "manufacturing" an AW.



DOJ has been pretty good about following the law ever since the Lungren extended-registration period fiasco.

Remember, there are no tiers or levels of assault weapons in CA AW law. The DOJ itself would be 'making' an assault weapon by declaration. Key legal concept that would be examined is reversibility - that is, does removing parts make it no longer an AW? Nope - it's an AW by name.

A couple of Calgunners, incl myself, will be seeking a ruling letter confirming this via an attorney once reg period opens and some folks have registrations back. You will hear about this on Calguns and here. (Please don't do this yourselves, it will confuse the situation: let us do it, we will pay the attorney to write/tweak the request letter - and send it out on his stationery for fast results.)

Only specific legislation could change this. It likely wouldn't change prior guns, but just say that any receiver or fixed-mag rifle that gets declared as an AW can't be modified into a detachable mag version.


3. SKS-D like buy back.


Naaah. Requires legislation and money. Bill would not only have to go thru public safety committee but thru budget committee...



4. New class of AW's limited to FAB10 type rifles.



They'dl need to do an exact description - or likely make & model - to comply with Harrott.

Actually my response at end of response to (2a) above would create a Category IV AW.



5. New sweeping ban on all magazine fed detachable mag semi autos.

1 or 2, followed later by #5, are most likely IMO.





Not much of a risk on 5. The 'hunters' will come out and defend their Remington 7600s.


Bill Wiese
San Jose



Link Posted: 1/20/2006 9:01:07 AM EDT
Wow, you guys are pretty good. Thanks for the answers!
Link Posted: 1/20/2006 9:19:45 AM EDT
[Last Edit: 1/20/2006 9:20:39 AM EDT by eje]
1) DOJ will add lowers to list, owners must register w/in 90 days (and build up with SB23 features) or properly dispose of lowers, DOJ will lobby legislature to fix AW legislation to close the loophole; or

2) DOJ will add lowers to list and issue new regulation under PC 12276.5(i) that lowers added to list may not be built up with SB23 features, owners must register or dispose of lower w/in 90 days after added to list, validity of controversial regulation will be litigated with uncertain outcome.
Link Posted: 1/20/2006 10:08:36 AM EDT

Originally Posted By eje:
2) DOJ will add lowers to list and issue new regulation under PC 12276.5(i) that lowers added to list may not be built up with SB23 features, owners must register or dispose of lower w/in 90 days after added to list, validity of controversial regulation will be litigated with uncertain outcome.



Eje,

THIS SIMPLY CANNOT HAPPEN.

DOJ cannot make law. There is no supporting law for this and this would be easily challenged even by a non-lawyer. They're actually good about this now, they got their arse handed to them for the DOJ/AG-extended registration period. Gov't agencies can't make new law, they can only make administrative law based off of supporting black-letter and case law.

Since DOJ Firearms Div can only enforce existing laws and write regulations based on that law, they cannot create a new class of firearms. Something is either a named AW, an AW by features, or it's not an AW. If it is an AW and registered, there is no legal concern over the path it became an AW - the declaration and registration of it as AW is an equalizer since there are no tiers or levels of assault weapons status in the supporting PC 12275 -12290 laws.

Bill Wiese
San Jose CA

Link Posted: 1/20/2006 11:30:02 AM EDT
[Last Edit: 1/20/2006 11:32:55 AM EDT by eje]
Well, I think it could happen, and I think a result oriented trial judge (i.e., one who doesn't want to let the lower owners build up AWs with SB 23 features) could find ambiguity in the law and also that the AG did not exceed its scope of authority under PC 12276.5(i), that the regulation is consistent with the AW law, and that it is reasonably necessary to effectuate the purposes of the AW law. There will be a strong presumption of regularity and the AG will be accorded deference by the court.

I don't disagree with your legal analysis, I agree that an AW is an AW, however way it got there. I'm just saying that the AG could very well issue such a regulation which would cast a cloud over everything until it was resolved in the courts. I'm not so sure a non-lawyer, let alone an experienced attorney, could just walk into court and get the regulation tossed out.
Link Posted: 1/20/2006 12:45:26 PM EDT

Originally Posted By eje:
Well, I think it could happen, and I think a result oriented trial judge (i.e., one who doesn't want to let the lower owners build up AWs with SB 23 features) could find ambiguity in the law and also that the AG did not exceed its scope of authority under PC 12276.5(i), that the regulation is consistent with the AW law, and that it is reasonably necessary to effectuate the purposes of the AW law. There will be a strong presumption of regularity and the AG will be accorded deference by the court.



Harrott stops all of this. Harrott decision clearly confirms DAs, trial courts/judges, cops, etc. cannot determine if something is an AW series member. It's listed, or it's not. (This is separate and indepedent of SB23 'by feature' determination.) Harrott was expressly written to address practicality, uniformity across state, and lack of ambiguity.

And, as you recall, the situation you had originally states involved DOJ actually making new law.

The existing law is so detailed - and has been revised several times - that there is very little way further legislative intent could be inferred. If further meaning needs to be imparted it needs to be specified by legislature - if they'd've wanted it in these past 15 years since Roberti-Roos AWCA 89 and two amendments and court decisions, it'd've been in there now. And legislative intent was discussed in court decisions.


I'm just saying that the AG could very well issue such a regulation which would cast a cloud over everything until it was resolved in the courts.


The DOJ/AG got popped for that when Lungren unilaterally extended the AW registration period for 'compliance' even though legislature had nothing to do with it. They got their butts handed to them.

There is no regulation they could create to really affect this situation that would not be readily considered 'making new law'. Anything creating a new tier of assault weapon or restricting features combinations even further is a radical new law. DOJ is indeed allowed to define things like detachable magazine and pistol grip and flash hider, and make administrative determinations on how to set up and run a registration program for AWs. Now, if AW law had been written blandly and broadly in the first cut in 1989 and if it allowed the DOJ to describe AWs using their administrative authority, coming up with definitions, models, etc. (kinda like the 'sporting purposes' thing on a Fed basis with ATF) then they could hang around and tweak their rules/regs with more latitude.


I'm not so sure a non-lawyer, let alone an experienced attorney, could just walk into court and get the regulation tossed out.


Regulations have to be based on law. They can't stray too far unless legislature said "go create regulations to accomplish Job X and left Job X sufficently undefined". That is clearly not the case here. Yes, this could be tossed - or at least a preliminary injunction granted before tossing. Courts, no matter what their leaning is, generally like the concept of separation of powers - at least as far as executive vs legislative branches are concerned!


Bill Wiese
San Jose


Link Posted: 1/20/2006 12:57:25 PM EDT
[Last Edit: 1/20/2006 12:59:36 PM EDT by TKoProductions]

Originally Posted By Paul:
Or #5 have the Supreme Court rule against the State of California under the Bill of Rights' 2nd and 14th Admendments. California is still (barely) a member of the United States and its citizens have the same rights to "keep and bare arms" of the 2nd Admendment and the "equal protection under the law" of the 14th Admendment means that the citizens of one state can not have those rights taken from them.

It's not rocket science.


Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.



Pretty simple.


AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.




So just so you get this straight. The words "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" do not mean that the state can not make or enforce a law which abridges (To cut short; curtail) the privileges (special advantage, immunity, permission, right, or benefit) or immunities (Exemption from normal legal duties, penalties, or liabilities, granted to a special group of people) of the citizens of the United States .... but the words "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." mean that our state has the right to regulate us very well?

The rights of citizens of the United States are not given to us by any ruling group, they are not granted by a piece of paper but rather they are endowed to us by our Creator ... "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. " (from the Declaration of Independence).

Our state congress has declared war against the people and their rights as documented in the United States Bill of Rights.




Very well said. That's exactly how I've felt, but never been able to put into words.

How can it be that if we are endowed the same rights and governed by the same Constititution, that the people of Texas are permitted to own and possesses AW's, SBR's, Silencers, and Class III firearms, while those of us in CA are stuck with bolt action .22's?

How can we make the people and legislation awaken to the severe and dangerous infringement of these unalienable rights?

With regards to the 2nd Ammendment, there definitely needs to be uniformity across state lines.
Link Posted: 1/20/2006 1:52:00 PM EDT
bwiese, you're preaching to the choir here! I totally agree with your legal analysis, I'm buying an off-list AR series lower myself, only I don't see any downside for the AG (from the AG's perspective) to issue a regulation prohibiting addition of SB23 features to AR15 series lowers added to the AW list. If the AG gets spanked in trial court, or even appellate court, so what? You win some, you lose some, that's what happens. What would the AG possibly be afraid of? I've been practicing for 13 years now (although not in firearms law), went to a top 10 law school (at least it was at the time) and it seems to me that the AG could make a plausible argument for a regulation prohibiting the addition of SB23 features to AR15 lowers added to the AW list. (I'm not touting my accomplishments by any means, just making an assessment based on my experience and background.) By plausible I mean an argument that won't get the AG laughed out of court, and probably would have a good chance of leaving a trial judge scratching his or her head trying to make sense out of the AW laws. Interpretation of existing law or making new law, that is what the trial judge will have to decide and in my mind it could go either way. Things don't always go your way in trial court, even if you show the judge a law that appears to you to be unambiguous. That happens all the time. Judges who are looking for a particular result will distinguish the case factually or find some other way to get around it. Some the judges in my neck of the woods are fricking crazy, the result you're going to get in any kind of case is unpredictable.
Link Posted: 1/20/2006 2:14:46 PM EDT
I thought this was already done with the california SUPREME court? how could a lower court change it?
Link Posted: 1/20/2006 2:33:40 PM EDT
[Last Edit: 1/20/2006 2:34:04 PM EDT by eje]
What the Cal. Supreme court decided is that a trial court may not declare a firearm an AK series AW unless the DOJ has added the firearm to the AW list. It did not decide whether SB23 features could be added to an off-list AK series (or AR series for that matter) receiver once it has been added to the list and registered by its owner.

Again, I agree that the correct result should be that the owner can add SB 23 features to the receiver once it's been added to the list and then registered by the owner. It's a registered AW any way you slice it and adding SB 23 features is not going to change the character of the weapon as a registered AW. Hopefully the DOJ will recognize that is the case, but I wouldn't take it to the bank and I'm prepared to have to wait a few years before this gets settled.
Link Posted: 1/20/2006 3:03:41 PM EDT
[Last Edit: 1/20/2006 3:06:37 PM EDT by bwiese]
Eje -


Originally Posted By eje:
What the Cal. Supreme court decided is that a trial court may not declare a firearm an AK series AW unless the DOJ has added the firearm to the AW list. It did not decide whether SB23 features could be added to an off-list AK series (or AR series for that matter) receiver once it has been added to the list and registered by its owner.

Again, I agree that the correct result should be that the owner can add SB 23 features to the receiver once it's been added to the list and then registered by the owner. It's a registered AW any way you slice it and adding SB 23 features is not going to change the character of the weapon as a registered AW.



Absolutely. Harrott has little or nothing to do w/SB23 features issues. It deals with named guns only, which is why we can get these bare receivers now. The way SB23 was written allows us to have a fixed 10rd mag rifle.

I think we have more than a tad of bureucratic precedence: this has already kinda-sorta occurred in a variant way: after the Fed AW Ban sunset in 9/2004, many people added further evil features to their legal, registered AWs so they could have Fed 'preban' features like flash hider, collapsible stock, etc. (Do remember the old Federal vs current CA definitions of AW are only broadly similar and differ significantly in some areas.) People did ask the DOJ if this was legal and it has been affirmed. What this said here is that features levels on CA AWs don't matter. These likely were all semiauto w/detachable magazine before though, so that's the slight difference.

My discussion with a smart gun attorney [please don't guess his name] involved discussions of reversibility (first few items below); Plus a detailed reading of the law goes this way...

- it's _named_ as an AW by DOJ;
- adding features does not make it an AW since it's already an AW;
- deleting features all the way to bare receiver does not remove its AW status;
- thus the DOJ action is causation for AW status; no 'manufacturing' involved;
- after DOJ declares new members of series AWs + registers them they are irreversibly AWs;
- law specifies what is and becomes an AW;
- charges don't distinguish with how something became an AW (and thus no levels of AWness);
- local crim charges/penalties are typically for illegal possession/transport of unregistered AWs;
- ... but, hey, you've got a registered AW!!

Note that illegal transport (unlocked, no specific authorized destination) is still illegal with even a legally registered AW.


Hopefully the DOJ will recognize that is the case, but I wouldn't take it to the bank and I'm prepared to have to wait a few years before this gets settled.


I think so. But hold your horses. Remember, DOJ doesn't wanna attract much attention to this. They caused this, in the first place. So this will slide - because otherwise that will attract court attention and PR...

A ruling letter will be acquired soon, after reg window opens. We think it'll be favorable. We will post it to Calguns and here the moment it happens.

Bill Wiese
San Jose

Link Posted: 1/20/2006 3:13:45 PM EDT
This is why I ain't trippin' over the "ifs" and "whens". It's impossible for me not to know what happens, barring a 6-8 month coma.



Link Posted: 1/20/2006 3:19:10 PM EDT
Good assessment, bweise. At this point I'd say I'm cautiously optimistic!
Link Posted: 1/20/2006 3:53:37 PM EDT

Originally Posted By phish:
This is why I ain't trippin' over the "ifs" and "whens". It's impossible for me not to know what happens, barring a 6-8 month coma.

hr


Man that would suck big time! Just imagine it... the day before registration begins, you get into a car accident and go into a coma for 100 days. When you wake up Law Enforcement is there to welcome you with AW possession charges because the 90 day window has closed and they got a photocopy of your Driver's License from a transfer FFL ...
Link Posted: 1/20/2006 6:53:51 PM EDT
Here's MY scenario..


A month or so from now, after I've bought my 4th lower, the DOJ has updated the list and the 90 day registration period had started...

So, I pick up the form, have a glass of iced tea while I fill it out, listing all my lowers, I take a leizurely drive to my local cop shop for a thumb print, dropping by the post office on the way home, I make out my check for $20.00 and prep the envelope complete with stamp. Checking things twice, I mail off my paperwork to the DOJ where a few weeks later, I get my registration document completed then suddenly realize, Wow, I guess I gotta get uppers now! So I call my parts dealer and Oh, I am soooooo painfully overwhealmed with options, choices, choices, choices, after spending a boatload of $$$ on my TOYS, I want a few weeks more for my uppers to arrive... I open the boxes and slap my rifles together, having two cases of 5.56 in my safe, I take the toys out to the range for a backbreaking laborous day of fun shooting the new toys...

Oh, life is sooooo hard, what's a guy to do? I'm breaking a sweat here...
Link Posted: 1/20/2006 6:56:49 PM EDT

Originally Posted By WizardOfAhs:
Here's MY scenario..


A month or so from now, after I've bought my 4th lower, the DOJ has updated the list and the 90 day registration period had started...

So, I pick up the form, have a glass of iced tea while I fill it out, listing all my lowers, I take a leizurely drive to my local cop shop for a thumb print, dropping by the post office on the way home, I make out my check for $20.00 and prep the envelope complete with stamp. Checking things twice, I mail off my paperwork to the DOJ where a few weeks later, I get my registration document completed then suddenly realize, Wow, I guess I gotta get uppers now! So I call my parts dealer and Oh, I am soooooo painfully overwhealmed with options, choices, choices, choices, after spending a boatload of $$$ on my TOYS, I want a few weeks more for my uppers to arrive... I open the boxes and slap my rifles together, having two cases of 5.56 in my safe, I take the toys out to the range for a backbreaking laborous day of fun shooting the new toys...

Oh, life is sooooo hard, what's a guy to do? I'm breaking a sweat here...



I like the way you think, only problem is, will two cases be enough?

over 4 here, and thinking I may need to get more, if the gf doesn't kill me first

Link Posted: 1/20/2006 9:03:08 PM EDT
<------Dillon Owner
Link Posted: 1/20/2006 9:32:58 PM EDT
[Last Edit: 1/20/2006 9:33:58 PM EDT by MicronuT]
<---- believes a possible outcome may be that the first ban list will acutally come out of the DOJ by/on monday... thats what i belive will be a possible outcome..

of course.. thats what i heard from a fortune teller
Link Posted: 1/20/2006 9:36:01 PM EDT
Ms. Cleo says: Ask again later.
Link Posted: 1/20/2006 9:38:24 PM EDT

Originally Posted By Paul:
Or #5 have the Supreme Court rule against the State of California under the Bill of Rights' 2nd and 14th Admendments. California is still (barely) a member of the United States and its citizens have the same rights to "keep and bare arms" of the 2nd Admendment and the "equal protection under the law" of the 14th Admendment means that the citizens of one state can not have those rights taken from them.

It's not rocket science.


Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.



Pretty simple.


AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.




So just so you get this straight. The words "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" do not mean that the state can not make or enforce a law which abridges (To cut short; curtail) the privileges (special advantage, immunity, permission, right, or benefit) or immunities (Exemption from normal legal duties, penalties, or liabilities, granted to a special group of people) of the citizens of the United States .... but the words "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." mean that our state has the right to regulate us very well?

The rights of citizens of the United States are not given to us by any ruling group, they are not granted by a piece of paper but rather they are endowed to us by our Creator ... "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. " (from the Declaration of Independence).

Our state congress has declared war against the people and their rights as documented in the United States Bill of Rights.




Your close, we need to get the 2nd Amendment incorporated to the State level, like several of the other amendments have. When that happens we will get some real relief. Until that happens, and it's highly unlikely to happen by the 9th Circus, we need to hopr for another Circuit or the SCOTUS. Until that happens we are stuck with the status quo, that the states can regulate firearms, that concept predates the Constitution and there hasn't been a suitable case to fix it. Otherwise we live in the world of legislative and judicial precedent. What screwed us was that the in the 1850's they didn't see fit to include a Second Amendment equivalent. And if you look at some of the things the State Militia, Vigilante groups and others got involved with, I think they specifically left it out on purpose. (Read William T.Shermans memoirs for some good descriptions of what an aarmed citizenry can do when they got riled up.) The Dclaration IS NOT LAW and quoting from it is illustrative, but, the law is derived from both the Federal and State Constitutions. And they set the precednts and laws we are stuck with.
Link Posted: 1/21/2006 9:28:14 PM EDT
IIRC, the term "well regulated" (as in well regulated Militia) refers to maintaining in good order, as in well trained and disiplined.

I don't believe it means a well restricted Militia or a well micromanaged Militia.
Link Posted: 1/24/2006 6:47:52 PM EDT

Originally Posted By AR15fan:


2a. DOJ adds the lowers to the list and claims assembling them is "manufacturing" an AW.




I personally heard DOJ agents state to a FFL this weekend they would be making arrests for manufacturing a AW, on off list lowers registered after listing and subsequently changed to detachable magazine configuration. This will put the issue back on the Court’s
Out.
2011BLDR
Link Posted: 1/24/2006 7:09:01 PM EDT

Originally Posted By 2011BLDR:

Originally Posted By AR15fan:


2a. DOJ adds the lowers to the list and claims assembling them is "manufacturing" an AW.




I personally heard DOJ agents state to a FFL this weekend they would be making arrests for manufacturing a AW, on off list lowers registered after listing and subsequently changed to detachable magazine configuration. This will put the issue back on the Court’s
Out.
2011BLDR



If it's registered as an AW how can you be charged later with manufacturing it?
Link Posted: 1/24/2006 7:14:28 PM EDT
[Last Edit: 1/24/2006 7:16:42 PM EDT by SillyPuddy]

Originally Posted By 2011BLDR:I personally heard DOJ agents state to a FFL this weekend they would be making arrests for manufacturing a AW, on off list lowers registered after listing and subsequently changed to detachable magazine configuration. This will put the issue back on the Court’s
Out.
2011BLDR



That is what the agents are spreading around here as well.
Link Posted: 1/24/2006 7:22:52 PM EDT
wtf?

are they looking for a lawsuit?
Link Posted: 1/24/2006 7:57:19 PM EDT

Originally Posted By 2011BLDR:

Originally Posted By AR15fan:


2a. DOJ adds the lowers to the list and claims assembling them is "manufacturing" an AW.




I personally heard DOJ agents state to a FFL this weekend they would be making arrests for manufacturing a AW, on off list lowers registered after listing and subsequently changed to detachable magazine configuration. This will put the issue back on the Court’s
Out.
2011BLDR



The number of lower recievers is probably over 8000 and growing every day. How would the DOJ know if the lower was left stripped or built?
Link Posted: 1/24/2006 9:08:14 PM EDT
It could mean that a new category of AW is being invented by the DOJ to cover AR15 lowers sold after Harrodd.
All of these new lowers with fixed mags will forever be break-open fixed mag 10 round Fab/Vulcan-10's, and to make it worse, they will have to be registered as an AW. That sucks.
Link Posted: 1/24/2006 9:16:24 PM EDT
This has been discussed at calguns.net about a "category 4" and the DOJ cannot create a new category out of thin air.

Link Posted: 1/24/2006 9:40:31 PM EDT
A 4th Category of AWs cannot be created by the DOJ. New law would have to be written.

As for the comment by 2011BLDR about busting people that have registered their rifles (assuming a reg period does open) and received a reg, I really doubt that (not that they didn't say something like that, just that they were talking out their ass). Or they could be saying, and he misheard, that they will be busting people w/off-list lowers that have detachable magazines - fine, we understand that, that's an SB23 violation.

What is the name of the DOJ agent / 'field representative'?

Dana McKinnon does spew bilge but that's far out even for him.

By contrast, people whom I trust and who accurately report things said that in conversation w/Iggy Chinn, it was acknowledged that once a lower is reg'd, it can be a full AW.

If a lower is identifed/declared/registered by DOJ as an assault weapon, DOJ itself mfgd the assault weapon. There are no tiers/grades/levels of assault weapon.

When you are busted for AW violation, you are typically busted for illegal transport or possession of an unreg'd AW.

Also the concept of reversibility must be considered - if you remove the detachable mag and fix a mag in, will a named AW not be an AW anymore?? No!


Bill Wiese
San Jose, CA

Link Posted: 1/24/2006 9:51:04 PM EDT
Bill - Do you think a 4th category is not going to happen in Calif? It seems like the state legislature and even the governor will gladly support just about any gun restriction espically one like this.

BTW, thanks for the great insight you've shared on these issues over the last couple of months. Very logical and very valuable information.
Link Posted: 1/24/2006 10:12:03 PM EDT

Originally Posted By Tonkaman:
Bill - Do you think a 4th category is not going to happen in Calif? It seems like the state legislature and even the governor will gladly support just about any gun restriction espically one like this.

BTW, thanks for the great insight you've shared on these issues over the last couple of months. Very logical and very valuable information.



It would take at least 6 mounths for the state legislature to pass a law for this and we could tie them up for a lot longer. Do you think that DOJ wants to keep letting these legal lowers in for that long?
Link Posted: 1/24/2006 10:15:48 PM EDT
Outcome #6) ARFCOMMERS and CalGunners drain the world's supply of tinfoil while making their hats, somehow it interrupts the cosmic powers of the universe, creates a wormhole, California gets sucked in, and everyone spontaneously combusts.

I'm willing to guess that option #6 is a little less likely than option #5 as posted by Paul.
Link Posted: 1/24/2006 10:15:50 PM EDT
After reading through Harrott and other cases and the text of the AW legislation, my thinking on this is heading more and more towards the scenario where registration of newly listed AR Series lowers will be required, but building SB 23 characteristics onto the lowers once they are registered would not be permitted. There would be no need to create an additional category of assault weapon or implement interpretive regulations; the necessary categories and their registration deadlines are already in the existing text of the AW legislation. I was never totally convinced that this strategy would work, I am less convinced now. I don't really want to go into detail why, I think the argument will be articulated by somebody else eventually.
Link Posted: 1/24/2006 10:24:59 PM EDT
[Last Edit: 1/24/2006 10:30:14 PM EDT by phish]

Originally Posted By eje:
my thinking on this is heading more and more towards the scenario where registration of newly listed AR Series lowers will be required, but building SB 23 characteristics onto the lowers once they are registered would not be permitted



That doesn't make sense, why would something that can't have any SB23 features need to be registered? That's like saying owners of FAB10s, Vulcans, and neutered-Bushys will have to register their rifles as well.

The only thing that scenario would accomplish is even more confusion as to what's legal, and what's not.
Link Posted: 1/24/2006 10:40:14 PM EDT
An AR Series assault weapon must be registered within 90 days after it is listed by the DOJ, however it is configured: stripped, non-detachable mag, whatever. PC 12285(a).

You wouldn't need to register a FAB 10, Vulcan or neutered Bushy (I'm assuming those are the ones that do not have the capacity to accept a detachable magazine) unless the DOJ successfully listed those as AR Series weapons as well. I say successfully because these are arguably not "series" weapons as defined by PC 12276(e).
Link Posted: 1/24/2006 10:49:14 PM EDT
Well, the point I was trying to make is that there's no reason to require registration of something that cannot be an assault weapon. As bwiese has stated repeatedly, there are no tiers of assault weapons, it either is or isn't.

If we have to register our off-list lowers, yet can't treat them as assault weapons, what would the point be of registration?

Link Posted: 1/24/2006 11:04:08 PM EDT
[Last Edit: 1/24/2006 11:08:23 PM EDT by eje]
The reason was probably more obvious before SB 23, when the statutory approach was to ban assault weapons by specifying their make and model. The registration requirement for newly listed AR Series lowers makes less sense if the lower cannot be built up with SB 23 features, but it's a requirement nevertheless.

As far as "tiers" of assault weapons are concerned, I'm not so sure I'd call them "tiers" but I would call them "categories" as the DOJ does in its AW identification guide and there is textual support in the AW legislation that a single firearm can fall under more than one category.
Link Posted: 1/25/2006 12:43:05 AM EDT
[Last Edit: 1/25/2006 9:08:36 AM EDT by fun2none]

Originally Posted By eje:
After reading through Harrott and other cases and the text of the AW legislation, my thinking on this is heading more and more towards the scenario where registration of newly listed AR Series lowers will be required, but building SB 23 characteristics onto the lowers once they are registered would not be permitted. There would be no need to create an additional category of assault weapon or implement interpretive regulations; the necessary categories and their registration deadlines are already in the existing text of the AW legislation. I was never totally convinced that this strategy would work, I am less convinced now. I don't really want to go into detail why, I think the argument will be articulated by somebody else eventually.


hing
Please help us understand your line of reasoning that leads to you believe new assault weapons can NOT have SB23 characteristics.

edited on 1-25 for typo.
Link Posted: 1/25/2006 6:22:20 AM EDT
Think of it as "pre-Harrott" and "post-Harrott" AW categories. Same lower receiver in each configuration but different evil features allowed. It would suck big time but it is possible.
Link Posted: 1/25/2006 6:31:28 AM EDT

Originally Posted By fun2none:

Originally Posted By eje:
After reading through Harrott and other cases and the text of the AW legislation, my thinking on this is heading more and more towards the scenario where registration of newly listed AR Series lowers will be required, but building SB 23 characteristics onto the lowers once they are registered would not be permitted. There would be no need to create an additional category of assault weapon or implement interpretive regulations; the necessary categories and their registration deadlines are already in the existing text of the AW legislation. I was never totally convinced that this strategy would work, I am less convinced now. I don't really want to go into detail why, I think the argument will be articulated by somebody else eventually.



I did find anything in 12276 or 12280 that states a newly registered assault weapon cannot be have assault weapons features. The AW categories are a DOJ invention to help the average guy (LEOs included) understand the confusing laws. AW categories do not appear in the statutes.

Please help us understand your line of reasoning that leads to you believe new assault weapons can NOT have SB23 characteristics.



He seems to be mixing the Kessler AW law with the SB23 features law. But the SB23 features law is a guideline to prevent a rifle from being an AW. Once a listed AW all the SB23 limiting features are allowed on an AW. If mixing the two laws were the case then all current Kessler AWs would have to follow SB23 features.
Link Posted: 1/25/2006 8:40:26 AM EDT
[Last Edit: 1/25/2006 9:13:23 AM EDT by Spahn_Ranch]
Here's a brief summary:

There are 3 categories of assault weapons:

(1) Listed under PC 12276 (Category 1);
(2) Add-on/AR Series/AK Series under PC 12276.5 (Category 2);
(3) SB 23 under PC 12276.1 (Category 3).

For each category of AW, there are independent registration requirements, including time periods for registration. The deadline to register a Category 1 AW was 1/1/91. The deadline to register a Category 2 AW is 90 days after it is listed by the DOJ. The deadline to register a Category 3 AW was within one year after the efective date of SB 23.

Without timely registration, possession of an AW is not permitted. PC 12280(b), 12285(c).

The weak link in the proposed strategy we are talking about is that it assumes that a Category 2 assault weapon would not also become a Category 3 assault weapon -- and therefore subject to Category 3 registration requirements -- if configured with SB 23 features. Or, even if the Category 2 assault weapon did become a Category 3 assault weapon when configured with SB 23 features, that timely registration as a Category 2 assault weapon would somehow excuse compliance with the registration requirements for Category 3 firearms (i.e., lawful possession prior to 1/1/00, registration within one year from that date). This is the "an assault weapon is an assault weapon" idea.

Where is the support for these assumptions in Harrott? Where is the support for these assumptions in the text of the AW legislation? There isn't any. In fact, the text ot the AW statute expressly supports the concept of "dual category" assault weapons and the need to comply with the independent registration requirements for each category. Have a look at PC 12285(g):

Any person who registered a firearm as an assault weapon pursuant to the provisions of law in effect prior to January 1, 2000, where the assault weapon is thereafter defined as an assault weapon pursuant to Section 12276.1, shall be deemed to have registered the weapon for purposes of this chapter and shall not be required to reregister the weapon pursuant to this section. PC 12285(g).

This provision deals with the situation where an assault weapon identified in PC 12276 in the original AW legislation (a Category 1 assault weapon) also met the PC 12276.1 (Category 3) definition of assault weapon because of its SB 23 features. It suggests that a lawfully registered Category 1 assault weapon would have been subject to the requirements for registration of Category 3 assault weapons if the firearm also had SB 23 features. Otherwise, why would be the reason for providing a statutory waiver of the requirement to re-register the assault weapon under these circumstances?

In the absence of this statutory waiver, there would have been a requirement to re-register a Category 1 weapon once it was defined as a Category 3 assault weapon. That is what PC 12285(g) says. PC 12285(g) applied in a practical way only in 2000 during the time period to register Category 3 assault weapons, but it unmistakably illustrates the concept of “dual category” assault weapons and independent registration requirements that go along with each category.

(To be continued...)
Link Posted: 1/25/2006 8:51:47 AM EDT
[Last Edit: 1/25/2006 9:06:43 AM EDT by Spahn_Ranch]
Here are the implications for the proposed strategy of registering a newly-listed AR Series lower receiver and then building it with SB 23 features:

A Category 2 AR Series lower receiver must be registered within 90 days after it is added to the list, whether it remains a stripped lower or whether it is configured "California legal" with a fixed magazine. However, once configured with SB 23 features and a detachable magazine, the weapon becomes a "dual category" assault weapon, as it would then be "defined as an assault weapon pursuant to Section 12276.1" (Category 3) in addition to being listed as an AR Series (Category 2) assault weapon by the DOJ . The Category 3 assault weapon registration requirements set forth at PC 12285(a) would apply-- including the time limit for registration as well as the requirement of lawful possession prior to January 1, 2000.

At this point in time it is impossible to comply with either of these requirements, meaning that Category 3 assault weapons built from newly-listed Category 2 AR series lowers cannot legally be (re)registered under PC 12285(a) and therefore may not be possessed under any of the conditions permitted by PC 12285(c). Possession of lawfully registered Category 2 assault weapons is permitted by PC 12285(c), in a stripped lower or California legal configuration, but not in an SB 23 configuration.

Was it not the Legislature’s intent to ban Category 3 assault weapons that were not lawfully possessed prior to January 1, 2000? And has it not already achieved its intent with this statutory registration scheme?

I'm not expecting to convince anybody here or change anyone's mind. Sometimes, though, you have to look at the issue from a contrary perspective and try to poke holes in your assumptions.
Link Posted: 1/25/2006 9:23:44 AM EDT

Originally Posted By Spahn_Ranch:
Here are the implications for the proposed strategy of registering a newly-listed AR Series lower receiver and then building it with SB 23 features:

A Category 2 AR Series lower receiver must be registered within 90 days after it is added to the list, whether it remains a stripped lower or whether it is configured "California legal" with a fixed magazine. However, once configured with SB 23 features and a detachable magazine, the weapon becomes a "dual category" assault weapon, as it would then be "defined as an assault weapon pursuant to Section 12276.1" (Category 3) in addition to being listed as an AR Series (Category 2) assault weapon by the DOJ . The Category 3 assault weapon registration requirements set forth at PC 12285(a) would apply-- including the time limit for registration as well as the requirement of lawful possession prior to January 1, 2000.

At this point in time it is impossible to comply with either of these requirements, meaning that Category 3 assault weapons built from newly-listed Category 2 AR series lowers cannot legally be (re)registered under PC 12285(a) and therefore may not be possessed under any of the conditions permitted by PC 12285(c). Possession of lawfully registered Category 2 assault weapons is permitted by PC 12285(c), in a stripped lower or California legal configuration, but not in an SB 23 configuration.

Was it not the Legislature’s intent to ban Category 3 assault weapons that were not lawfully possessed prior to January 1, 2000? And has it not already achieved its intent with this statutory registration scheme?

I'm not expecting to convince anybody here or change anyone's mind. Sometimes, though, you have to look at the issue from a contrary perspective and try to poke holes in your assumptions.



Do you work for the firearms div. of DOJ? If this is their idea it will just end up back in court again.
Link Posted: 1/25/2006 9:36:15 AM EDT
[Last Edit: 1/25/2006 9:37:08 AM EDT by Spahn_Ranch]

Originally Posted By DVCAPI:

Do you work for the firearms div. of DOJ? If this is their idea it will just end up back in court again.



No, I just think that in this frenzy of "off-list" lower purchases that there needs to be a reality check. I'm somewhat conflicted, I don't want to see it turn out this way, but I think people should be careful. I don't want to give away anything to the DOJ (not that they couldn't come up with this idea themselves) so I'm happy to delete my previous posts if folks think that would be prudent.
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