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sromero
12-29-2008, 10:01 PM
Great movie by Nicholas Cage - what do you guys think?

EBR Works
12-29-2008, 10:02 PM
Yes, it is illegal. Remember, the AR lower is the weapon. Everything else is just parts.

69Mach1
12-29-2008, 10:03 PM
Yes, if it's listed by name.
By name I mean the make and model list.

JDay
12-29-2008, 10:05 PM
Do you really have to ask?

EBR Works
12-29-2008, 10:06 PM
Yes, if it's listed by name.

It has to be listed by exact Make and model.

69Mach1
12-29-2008, 10:09 PM
This reminds me. Some unfortunate gun owners who bought "on list" modified rifles with welded up mag wells from Evans do not realize they have illegal assault weapons.

DDT
12-29-2008, 10:10 PM
Is possession of a disassembled on-list lower illegal? Thanks.

In most states no. In California only if it is not registered and is listed by make and model in Penal Code 12276 (http://ag.ca.gov/firearms/dwcl/12275.php).

EBR Works
12-29-2008, 10:12 PM
This reminds me. Some unfortunate gun owners who bought "on list" modified rifles with welded up mag wells from Evans do not realize they have illegal assault weapons.

IIRC, I read that once the mag well was welded up, it was no longer considered an AW even if it was on list. Can anyone else confirm this?

sromero
12-29-2008, 10:17 PM
Fast cars and fast women.

EBR Works
12-29-2008, 10:21 PM
If it is not listed in PC 12276, it's not on list and therefore legal. It you don't see it listed here by exact make and model, it's legal:

http://www.calguns.net/caawid/flowchart.pdf

SJgunguy24
12-29-2008, 10:22 PM
IIRC, I read that once the mag well was welded up, it was no longer considered an AW even if it was on list. Can anyone else confirm this?

I do remember reading about a banned AW(lower) got a holy letter of blessing from the DOJ because it was permanatly altered.

pedro_c111
12-29-2008, 10:25 PM
Thanks for the replies. And yes, I do need to ask, especially since there are conflicting answers to the question, even within this thread. So to clarify, I am referring to a completely unassembled lower (no parts whatever), and a make and model not enumerated in Penal Code 12276 (e.g. PWA). Thanks.

You state that its an ON-LIST lower but that its not listed in Penal Code 12276?

If it is not listed by make and model then it is an OFF-LIST LOWER or OLL, in which case it would NOT be illegal to own.

EBR Works
12-29-2008, 10:29 PM
I do remember reading about a banned AW(lower) got a holy letter of blessing from the DOJ because it was permanatly altered.

Yep, found it here:

http://www.calguns.net/a_california_arak.htm

12. Once my California Vulcan fixed mag or CA-legal pump-action AK is declared an assault weapon, can I add “evil features”?

There’s a good chance that several special receivers - the FAB10 from Shoeless Ventures, the California fixed-mag Vulcan, and GB Sales’ welded-up Colt/Bushmaster receivers (all of which have had DOJ approval for recent regular sale in California) - will never be declared/identified as assault weapons. These designs were regarded as not having enough “AR-ness” to be categorized as assault weapons.

hoffmang
12-29-2008, 10:29 PM
The frame or receiver of a firearm is not the firearm for the AW section. Possession of a listed bare frame is arguably legal. However DO NOT possess it in California. Why ask for trouble?

-Gene

sromero
12-29-2008, 10:30 PM
Yeah, but I think Robert Duvall just added to that.

Shotgun Man
12-29-2008, 10:30 PM
Is possession of a disassembled on-list lower illegal? Thanks.

All the replies, but not one nuanced answer unless I've missed it.

I've heard bweise or hoffmang say that possession of a stripped on-list lower is defensible in court because it is not a semi-automatic rifle.

ETA: I just hoffmang's answer.

EBR Works
12-29-2008, 10:34 PM
Since the list includes:

PWA: All Models

It is on list and therefore not legal to own, unless registered, even in a stripped condition.

sromero
12-29-2008, 10:36 PM
Hahaha! Yes, And the MUSTANG!! Hahaha!!!!

EBR Works
12-29-2008, 10:37 PM
Yes Gene, please help us out here. Your statement "The frame or receiver of a firearm is not the firearm for the AW section. Possession of a listed bare frame is arguably legal" goes against everything I have read here in the past year.:confused:

JeffM
12-29-2008, 10:39 PM
Assault weapons are classifed as either Rifles, Shotguns, or Pistols.


According to the BATF a stripped frame is none of the above.


It wouldn't be wise to test it out in court (wich is what WILL happen). I doubt one of the 58 DAs would drop that case.

383green
12-29-2008, 10:39 PM
Is possession of a disassembled on-list lower illegal? Thanks.

Thanks for the replies. And yes, I do need to ask, especially since there are conflicting answers to the question, even within this thread. So to clarify, I am referring to a completely unassembled lower (no parts whatever), and a make and model not enumerated in Penal Code 12276. (For example a disassembled PWA lower). Thanks.

In your original post, you asked about an "on-list" lower. That means a lower which is listed by make and model in Penal Code 12276. If you meant to ask about a lower which is not listed by make and model in Penal Code 12276, then that's what we call an "Off-List Lower", or "OLL" for short.

Even though this may have already been answered to your satisfaction, I'll summarize and elaborate a bit in case this helps:

If the receiver is listed by make and model in PC 12276, then it is considered to be an "Assault Weapon", whether it is stripped or assembled. As an assault weapon, most people can not legally possess it unless they registered it before the deadline (many years ago).

If the receiver is not listed by make and model in PC 12276 (that is, it's an OLL), then it is legal to possess. It can even be assembled into a functional rifle, as long as it is configured to not fall into any of the restricted configurations in PC 12276.1. The easiest way to understand the feature restrictions is the CA AW ID Flowchart (http://www.calguns.net/caawid/flowchart.pdf) which was previously mentioned.

The comments about "Evans" refer to some particular listed weapons which were permanently altered by welding shut the magwell, and the CA DOj issued a letter which stated that this modification made them OK even though listed. However, many feel that this may have been bad advice by DOJ, and aren't sure it would stand up in court. If you're not asking about one of these welded-up lowers, then forget that anybody mentioned them, in order to avoid needless confusion. ;)

JDay
12-29-2008, 10:40 PM
So, I have two conflicting answers - one says: "Yes, it is illegal. Remember, the AR lower is the weapon. Everything else is just parts."

The other says: "The frame or receiver of a firearm is not the firearm for the AW section. Possession of a listed bare frame is arguably legal."

Thanks for the help. Can anyone end the debate for once and for all?

The receiver itself is not an AW unless it is listed by make and model. A OLL that is stripped bare is not an assault weapon since its not in one of the "evil" configurations. Hope this answers your question.

hoffmang
12-29-2008, 10:44 PM
You can look at this footnote in Bill Lockyer's letter (http://www.hoffmang.com/firearms/Lockyer%20Letter%20-%20AB%202728.pdf) to the Governator.

It should be noted that there is some doubt as to whether the Attorney General's Office has the statutory authority to list a bare receiver as an assault weapon since it lacks the characteristics of an assault weapon, including its ability to fire

It's badly unclear and you should not do it but the key thing to note as to what I was saying is this.


12001. (c) As used in Sections 12021, 12021.1, 12070, 12071, 12072, 12073, 12078, 12101, and 12801 of this code, and Sections 8100, 8101, and 8103 of the Welfare and Institutions Code, the term "firearm" includes the frame or receiver of the weapon.

...

12276. As used in this chapter, "assault weapon" shall mean the
following designated semiautomatic firearms:


So the frame or receiver is not the firearm for 12276.

But I'll say it again. DO NOT POSSESS a frame or receiver marked on any of the lists without a registration. It's not a case worth fighting.

-Gene

sromero
12-29-2008, 10:51 PM
Did I really start this much controversy?? It certainly wasnt his best film, but an entertainer for sure.

383green
12-29-2008, 10:55 PM
So, I have two conflicting answers - one says: "Yes, it is illegal. Remember, the AR lower is the weapon. Everything else is just parts."

This is the safer answer. If it is listed by make and model, then one should not possess the bare receiver in CA (this could be charged as a misdemeanor), and they definitely should not try to sneak it out of state (this could be charged as a felony).

The other says: "The frame or receiver of a firearm is not the firearm for the AW section. Possession of a listed bare frame is arguably legal."

This is, I believe, based on a legally untested observation that the AW laws might not be applicable to a stripped receiver. "Defensible" means that it might be possible to avoid a guilty verdict in court.

When folks ask here about what they should do if they find themselves in illegal possession of a listed assault weapon, it's often suggested that (among other things) they immediately strip it down to a bare receiver. This does not necessarily make it legal to possess, but it is believed to help stack the odds a bit more in their favor if they find themselves in court. Even after stripping down the receiver, it's still recommended that they pre-arrange to surrender it to law enforcement for destruction.

Thanks for the help. Can anyone end the debate for once and for all?

Did I help explain things, or just confuse you more? :rolleyes:

sromero
12-29-2008, 10:57 PM
Wow!!

DDT
12-29-2008, 10:57 PM
It is not a semi-automatic firearm. It has the potential to become a semi-automatic firearm, a bolt action firearm or a fully automatic firearm. There is no preference on the part of the receiver which it is turned into. However; if it is just the bare receiver you will never have an issue, because no law enforcement is going to see it in your safe unless you are having other "issues" in which case, if they find it you will almost certainly face indictment. If you have the other parts to make a semi-automatic or fully automatic weapon out of the lower you will almost certainly lose. If you have just the bare lower or a bolt action assembly for it you MAY win out in court but you will BE in court if caught.

sromero
12-29-2008, 11:02 PM
Or Alyssa Milano

ohsmily
12-29-2008, 11:59 PM
So, I have two conflicting answers - one says: "Yes, it is illegal. Remember, the AR lower is the weapon. Everything else is just parts."

The other says: "The frame or receiver of a firearm is not the firearm for the AW section. Possession of a listed bare frame is arguably legal."

Thanks for the help. Can anyone end the debate for once and for all?

DID YOU READ THE REST OF THE SECOND ANSWER???

BTW, he said "arguably." Do you want to spend tens of thousands of dollars arguing that point to a trial court and then to an appellate court?

DO NOT POSSESS A LISTED LOWER unless you want to be a test case for an issue that is not important (why bother with a listed lower when unlisted ones are just as good).

bwiese
12-30-2008, 12:00 AM
Sromero:

Gene beat me to it above with some of the quoted pieces.

Yes, someone possessing a stripped 'listed' lower in CA likely has a quite defendable case - but this conduct is not at all recommended!! Immediate action by the owner of such an item needs to be taken to avoid/mitigate legal issues.

Folks suddently finding themselves in possession of an illegal listed AW are advised to *immediately* strip it to the bare listed receiver (any barrel should be removed). That does not erase the prior crime of unreg'd AW possession, but it raises the burden of proof if something happens (providing defendant keeps his mouth shut!) and renders the case into a defendable/resolvable state.

If the person who finds himself possessing (either via above dismantlement process or just owning the plain listed receiver) a stripped 'listed' receiver, he should NOT transport that receiver AT ALL (i.e., try to move that listed AW out of California). Transportation charges involving an unreg'd AW are felonies, while by contrast simple possession of an unreg'd AW is a wobbler (felony/misdemeanor). An alternative nuisance charge as a negotiated outcome is also possible. By contrast, idiotically attempting to move it out of the state can jump its owner from the frying pan into the fire - bumping up a wobbler into a felony - with just a traffic stop for a busted taillight.

Finally, a person finding himself possessing a stripped 'listed' AW receiver in CA should IMMEDIATELY call an attorney who can make contact with local LE agency for legal surrender of the listed receiver, without charges being filed. This may actually better than destruction of the receiver in many circumstances.

Seesm
12-30-2008, 12:36 AM
California is a wonderful place with strange and terrible gun laws...So having said that, IMHO ...Stay the heck away from the lower in question at all costs...

But with THAT, if your a gambling man and have some cash go for it...

You may be able to win or maybe loose but the way the law is written your on the losing side going in.

DON'T DO IT!! :)

artherd
12-30-2008, 9:31 AM
DOJ actually does not know wether possession of a listed, bare, receiver constitutes an AW violation. In my opinion, it may not be.
- HOWEVER -
You will be arrested, charged, and most likely loose in a lower court.
You may win on appeal, $100k + later.

Also, the DOJ approved GB-Sales Bushmasters are AWs. DOJ has erred.

adamsreeftank
12-30-2008, 10:45 AM
...
Also, the DOJ approved GB-Sales Bushmasters are AWs. DOJ has erred.

So if you were to buy one of these and the DOJ reversed itself, would you have a grace period to register it and then revert it back to its original configuration?

:D:D:D

bwiese
12-30-2008, 4:13 PM
So if you were to buy one of these and the DOJ reversed itself, would you have a grace period to register it and then revert it back to its original configuration?

The DOJ already covered its tracks by (very approximately) giving Evan's mfg permit and having them rename them "Evans-Bushmaster" or "Evans-Colt", creating an unbanned entity.

sac550
12-30-2008, 6:45 PM
12276 states "the following semiautomatic firearms". A stripped lower is not a semiautomatic and therefore is not illegal to possess. If you think otherwise then under the same theory it would illegal to possess a stripped OLL. However, we know a stripped OLL is not a "semiautomatic, centerfire rifle" and there is no constructive possession. It seems to make sense that the same would apply to a named lower.

bwiese
12-30-2008, 6:47 PM
12276 states "the following semiautomatic firearms". A stripped lower is not a semiautomatic and therefore is not illegal to possess. If you think otherwise then under the same theory it would illegal to possess a stripped OLL. However, we know a stripped OLL is not a "semiautomatic, centerfire rifle" and there is no constructive possession. It seems to make sense that the same would apply to a named lower.

Yes but it's not a fight that's worthwhile for a $150 lower.

sac550
12-30-2008, 6:59 PM
Yes but it's not a fight that's worthwhile for a $150 lower.

I don't think it should be a fight. It is a clear reading of the law as it is written. If people are scared to possess a stripped named lower then they should be just as scared to possess a stripped OLL without a BB device. I don't think many of us are scared to possess the stripped OLL.

However, as my dad used to say, "this is not the hill I want to die on" and since most are going to build a single shot with a named lower why keep it.

hoffmang
12-30-2008, 7:07 PM
I don't think it should be a fight. It is a clear reading of the law as it is written. If people are scared to possess a stripped named lower then they should be just as scared to possess a stripped OLL without a BB device. I don't think many of us are scared to possess the stripped OLL.


:smilielol5: It costs $5K to ante up to even start to play the game.

As you said. This is not a hill worth dieing on.

-Gene

383green
12-30-2008, 7:25 PM
If people are scared to possess a stripped named lower then they should be just as scared to possess a stripped OLL without a BB device.

I don't think I agree with that particular statement, since a stripped OLL can be legally assembled in configurations which include a normal finger-operated magazine catch.

I won't offer a firm opinion on the legality of possessing a stripped on-list lower right now, but I'm inclined to believe that a legal fight would be likely if caught and charged, whether that fight should be necessary or not. It seems to me that the theory that the make/model list does not apply to stripped lowers is shaky enough that a DA or the DOJ would be willing to press forward with charges, even at the risk of generating case law (many years and tens of thousands of dollars later) that cements the legality of possessing stripped on-list lowers. Just look at how tenaciously the D.C. folks fought for their gun ban (and continue trying to defy the SCOTUS) even when they clearly have a losing case.

It seems like an awful lot of risk to take over a $150 lower, considering that an unquestionably legal OLL that is identical in every way except the roll stamp (and maybe even came off the same contract manufacturer's assembly line) is easily available, and the money/effort/time necessary to fight such a charge may be much better spent on trying to shoot down the entire AW ban on constitutional grounds. I just don't see a favorable cost/benefit ratio for this.

That being said, I still find the topic interesting!

artherd
12-30-2008, 7:33 PM
So if you were to buy one of these and the DOJ reversed itself, would you have a grace period to register it and then revert it back to its original configuration?

:D:D:D

The last time DOJ cocked up (http://www.nramemberscouncils.com/contracosta/FaxAlerts/sksalert.shtml), they had to buy the rifles back.

If the legality of a stripped lower were actually more interesting, or we had nothing else going on, it might be pursued. However, in 5 years I expect the question to be completely irrelevant - relegated to the history books forever.

383green
12-30-2008, 7:40 PM
The last time DOJ cocked up (http://www.nramemberscouncils.com/contracosta/FaxAlerts/sksalert.shtml), they had to buy the rifles back.

Hmm, interesting. I'd imagine that those Evans guns were more expensive than OLLs, given the extra manufacturing done on them plus the FUD campaign that I seem to recall that tried to convince people that only the Evans guns were legal, and all of the OLL folks were destined for prison. With this in mind, maybe it would be beneficial to the Evans buyers for DOJ to realize that they messed up and buy those rifles at full list price, so the original buyers can then buy nice non-welded-up OLLs with enough left over to slap on some nice optics or something... :rolleyes: