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View Full Version : How Come They Can Ban Handguns "Decertified" For Lack Of Money?


08-01-2005, 7:14 PM
I've been looking at the actual text of the "approved gun list" law and I still don't get how it's illegal to buy a gun that used to be "certified", but isn't any more because the manufacturer stopped sending the state money. Full disclosure: I'm not a lawyer (for better or worse), perhaps someone smarter than me can explain this.

First let me summarize what I think I read in the law:

(Pay particular attention to 12126 and 12131.)

12125: It's illegal to offer for sale (etc.) an "unsafe" gun.

12126: Defines "unsafe" gun as a) not having certain safety features or b) not passing certain safety tests.

12127, 12128: Definitions for their safety tests.

...

13132: Directs the AG to create and maintain the "approved gun list." Provides that guns may be taken off the list if the manufacturer doesn't keep sending the state money.

What I don't get, is this:

I don't see any place in 12126 where a gun becomes "unsafe" just because it's not on the list. All I see is a list of features and passing tests. If a gun was previously on this list, it must have passed the tests. If it's taken off due to lack of money, where in the law does this make the gun "unsafe?"

Am I reading it wrong? Is there another section I'm missing?

Thanks for any help.

(And I ask because I have been given to understand that most of the guns on the "decertified" list are there because of money, not safety.)

jnojr
08-01-2005, 8:03 PM
Originally posted by tumunu:
I've been looking at the actual text of the "approved gun list" law and I still don't get how it's illegal to buy a gun that used to be "certified", but isn't any more because the manufacturer stopped sending the state money.

Because the law has nothing to do with "safety". It's all about making the private ownership of firearms more expensive and laden with forms and paperwork.

bu-bye
08-01-2005, 10:49 PM
they can't ban guns out-right so they just make it harder and harder for us to get them. Each time banning guns a little more until there is no legal way to own them

fun2none
08-02-2005, 1:35 AM
Gun ownership will not be banned outright, but will be burdened by legislation and administrative procedures.

Just imagine a $75 DROS fee and a DNA sample to purchase, limit gun purchases to one per year, an annual gun safety certification linked to your drivers license, mandatory gun safe with periodic inspections, all shooting ranges must licensed by Cal-Osha & EPA. Before using any public shooting facility, one must have a valid HSC and submit to a background check.

We already have handgun safety standards in place to "protect the children". Don't be surprised when they mandate emissions standards for ammunition to reduce "global warming".

Red tape and administrative overhead will make legal firearm ownership so impractical and painful, that no one, except the ultra-wealthy, will be able to afford them.

-hanko
08-02-2005, 5:35 AM
Originally posted by fun2none:
...a DNA sample to purchase
Got it...right here.



Sorry, you can't leave me with a line like that http://calguns.net/groupee_common/emoticons/icon_biggrin.gif

-hanko

Turbinator
08-02-2005, 7:37 AM
Hey, if they have cute clerks to help you obtain the DNA sample, what's the problem?? http://calguns.net/groupee_common/emoticons/icon_biggrin.gif

Turby

maxicon
08-02-2005, 9:25 AM
IMO, the two primary purposes of this legislation beyond safety testing are to limit the variety of new handguns available and to limit the market in used handguns.

Many manufacturers just don't bother sending guns for testing (like Keltec), or don't send all the varieties available.

On used guns, having them fall off the list means that older guns are much less available, particularly those from out of state. Nobody but the manufacturer will bother having the guns tested.

This prevents these being brought in from other states, and also limits the number of used guns sold by dealers.

max

08-02-2005, 9:56 AM
Hi again folks - perhaps I did not word my question properly, let me try again.

What I'm getting at is, if a FFL sells you a gun whose certificdate has expired, I don't see how the state can prosecute anybody for anything. The definition of "unsafe" in 12126 makes no mention of any roster or list, just having certain features and passing tests that any previously certified gun has clearly passed.

It would seem to me that we should be legally able to buy "expired" type guns right now.

So my question is, what's wrong with this logic?

Librarian
08-02-2005, 10:32 AM
You're trying to impose logic on a political/legal situation. Unfortunately, that doesn't work. As others have pointed out, the law isn't about safety as related to mechanical capability or performance.

The list language is in 12131.

The CA DOJ gets to create regulations which implement the law as passed. Their regulation and the law both resolve to "on the DOJ list == California-safe == able to be sold by a FFL holder in California".

Look at California Code of Regulations, 968.90

Passing the tests is not "California-safe". Paying the annual fee after passing the tests is "California-safe".

You may be aware that the law was intended to eliminate 'Saturday Night Specials' as some called handguns such as Lorcin, Bryco and Raven; much to the annoyance of the grabbers, when tested those mostly passed.

C.G.
08-02-2005, 10:34 AM
Logic has nothing to do with it (how many gun laws are logical?). If it is not on the list, you cannot legally buy it new.

08-02-2005, 10:53 AM
Originally posted by tumunu:
Hi again folks - perhaps I did not word my question properly, let me try again.

What I'm getting at is, if a FFL sells you a gun whose certificdate has expired, I don't see how the state can prosecute anybody for anything. The definition of "unsafe" in 12126 makes no mention of any roster or list, just having certain features and passing tests that any previously certified gun has clearly passed.

It would seem to me that we should be legally able to buy "expired" type guns right now.

So my question is, what's wrong with this logic?

My belief is that a FFL cannot sell to the puplic a gun that is not on the DOJ certified list. They also will not buy and sell an uncertified gun unless they want to have it for themselves. They can "sell" an uncertified gun on consignment only. Only a PPT is exempt. I also believe that a private individual cannot sell and send an uncertified gun to buyer's FFL, even if both parties are in CA. PPT is usually both buyer and seller together at a FFL during the transaction.

There are shops that will sell uncertified guns to LE only. I was at that shop yesterday, and they had a bunch of Glocks that will not sell to the public.

I agree that it doesn't make sense, and what your asking about "letter to the law" may not fly if you happen to contest it.

I'm still amazed, like you, how a, say, uncertified CZ75B in gloss-blue is any different to a certified CZ75B black polycoat.

Librarian
08-02-2005, 11:29 AM
I'm still amazed, like you, how a, say, uncertified CZ75B in gloss-blue is any different to a certified CZ75B black polycoat.

Well, it isn't supposed to make a difference.
12131.5. (a) A firearm shall be deemed to satisfy the requirements
of subdivision (a) of Section 12131 if another firearm made by the
same manufacturer is already listed and the unlisted firearm differs
from the listed firearm only in one or more of the following
features:
(1) Finish, including, but not limited to, bluing, chrome-plating,
oiling, or engraving.
(2) The material from which the grips are made.
(3) The shape or texture of the grips, so long as the difference
in grip shape or texture does not in any way alter the dimensions,
material, linkage, or functioning of the magazine well, the barrel,
the chamber, or any of the components of the firing mechanism of the
firearm.
(4) Any other purely cosmetic feature that does not in any way
alter the dimensions, material, linkage, or functioning of the
magazine well, the barrel, the chamber, or any of the components of
the firing mechanism of the firearm. So, one might expect a difference between stainless steel vs parkerized steel, but not parkerized vs blued, or, as your example, blue vs black polycoat. THAT one is hard for me to understand.

icormba
08-02-2005, 1:35 PM
logic is... when a handgun expires off the list it instantly becomes "un-safe". I thought everyone knew that? http://calguns.net/groupee_common/emoticons/icon_wink.gif

bear
08-02-2005, 4:00 PM
I read through it briefly and I can't find it too.

You may have discovered a loophole, maybe just the freakin lawyers didn't think of everything.

Now try to find an FFL dealer who will sell you a gun that is no longer on the list !

Inoxmark
08-02-2005, 6:01 PM
Assuming for a minute that this is indeed a loophole and one can somehow find a willing FFL, don't they need to pick the make and model from the drop-down list (that wouldn't have the expired model on it) when submitting DROS?

colossians323
08-02-2005, 6:43 PM
This is no loophole, but if a lawyer was brave enough, the term unsafe and safe being associated with money, the law would probably get reversed on the grounds that money has nothing to do with how safe a gun is.
Heck at this point, there could be a class action lawsuit agiainst the State for extortion of a private industry that has affected millions of law abiding citizens.
I have not read the text of the law, but I just wish that we had lawyers with big balls, that would not be afraid to tackle big govenment.

Librarian
08-02-2005, 11:36 PM
Seems to me some folks are missing something: 12131. (a) On and after January 1, 2001, the Department of Justice shall compile, publish, and thereafter maintain a roster listing all of the pistols, revolvers, and other firearms capable of being concealed upon the person that
--have been tested by a certified testing laboratory,
--have been determined not to be unsafe handguns, and
--may be sold in this state pursuant to this title.

The roster shall list, for each firearm, the manufacturer, model number, and model name.

(reformatted for emphasis) Specifically maintain a roster listing all of the pistols, revolvers, and other firearms ... that may be sold in this state pursuant to this title. Not on the roster = may not be sold.

The DOJ web site says "Effective January 1, 2001, no handgun may be manufactured within California, imported into California for sale, lent, given, kept for sale, or offered/exposed for sale unless that handgun model has passed firing, safety, and drop tests and is certified for sale in California by the Department of Justice." -- "certified for sale" = "on the roster".

The Manual for the DROS data entry system says
"To Enter Revolver/Pistol Information
1. In the Certified Guns field, click the button and select a gun type from
the drop-down menu. The Make, Model, Type, Caliber, Barrel Length
and Units fields are automatically filled once a certified gun type is
chosen." -- that is, the system reads from the Roster, and a dealer may only select guns on the Roster. (DROS Entry Application User Manual
Version 7.00 link to PDF (https://ecom.vansis.wcom.com/wpsd/manual.pdf) ) There are exceptions for "Curio/Relic/Olympic Pistol/Exempt" and "Non-Roster Peace Officer".

If someone wants to take this problem to court and get a different result, I'll happily cheer. As it stands, I don't see a loophole.

The grabbers are uninformed and (usually willfully) wrong-headed. Unfortunately, they're generally not stupid or entirely inefficient, and bureaucracies are really good at implementing what they are told to implement, without regard to whether that is a good idea.

08-03-2005, 1:18 AM
Again - I'm not a lawyer. But I've always been told that it's the actual text of the actual law that counts, not anything else.

So that what is says on the DOJ web site is not the law, and any regulations can only support the written law, not change their meaning, and the instructions for the DROS form, and its drop-down list, is not law. Only the text of the penal code counts if they want to charge you with a crime. At least, that's what I always heard. That's why I wish a real lawyer would look at this.

And to repeat, it seems to me that to actually charge someone with a crime, the only relevant section of the penal code saying "this is illegal" is 12125, banning unsafe handguns, relying on 12126 for the definition, which in turn relies on 12127 and 12128 to define how the tests are performed.

And NONE of 12125-12128 seem to mention a "roster."

And (thanks Librarian) the quoted section of 13131 is instructing the DOJ to maintain a list, it doesn't seem to be aimed at anyone else, and it does not point-blank say "you cannot sell a gun not on this list." I believe a crime they can charge you with needs to be this specific.

Sorry to be so stubborn about this, but if it is in fact our legal right to purchase firearms that have passed the safety tests but are no longer on "the list," but we don't do it because they wrongly assert we can't and we're too afraid to push back, shame on us!

And I might point out, if this is indeed a loophole, it's only available until the end of this year, at least for semis. Starting 1/1/2006 most or all of those pistols with be "unsafe" by definition of 12126 again due to lack of chamber indicator or mag disconnect. So the clock is running!

atham@earthlink.net
08-03-2005, 7:32 AM
Even if there were a loophole, what makes you think the Kali Supreme Court would allow that to be used.

imported_1911_sfca
08-03-2005, 8:54 AM
Procedurally, you are banned from buying it because the manufacturer has failed to pay to keep it on the list, and DROSes are allowed for guns on the list -- not guns that are "safe".

Legally, you are probably correct, and might be found so, AFTER you go to criminal court and have your lawyer defend you against the AG's office.

Originally posted by tumunu:
Hi again folks - perhaps I did not word my question properly, let me try again.

What I'm getting at is, if a FFL sells you a gun whose certificdate has expired, I don't see how the state can prosecute anybody for anything. The definition of "unsafe" in 12126 makes no mention of any roster or list, just having certain features and passing tests that any previously certified gun has clearly passed.

It would seem to me that we should be legally able to buy "expired" type guns right now.

So my question is, what's wrong with this logic?

Librarian
08-03-2005, 12:41 PM
I'm not a lawyer either. A good thing, too. But here's how I think this works:

12125 does not exist in isolation.

12125 says no one can sell an unsafe handgun (with exceptions).

12126 defines 'safe'.

12127 and 12128 define the tests to determine safety.

12130 says the DOJ will certify laboratories to perform the 12127/12128 tests to see if the guns are 12126 unsafe, because 12125 says unsafe guns cannot be sold.

12131 says the DOJ will maintain a Roster of all the guns which have passed the 12127/12128 tests at the 12130 laboratories - these are the guns California says are 12126 'safe', and 12125 unsafe guns may not be sold, and if it isn't on the roster, it is by definition (not reason or logic) 'unsafe'.

12132 is a list of exceptions.


Code of Regulations is the way the AG will enforce the law. §968.90. Roster of Certified Handguns.

(a) Within 10 days of the receipt of the Compliance Test Report, Form FD 021 (Rev. 6-00), and one prototype handgun, from the DOJ-Certified Laboratory; and the receipt of the initial annual listing fee from the manufacturer/importer, the DOJ will determine whether the handgun is not unsafe and may be sold in California. After the determination that the model may be listed, the DOJ will add the handgun model to the Roster of Certified Handguns. The listing will be valid for one year from the date the model was added to the Roster, and shall be renewed as set forth in §968.91 of these regulations. The AG will defend this regulation in court. Whether he'll win at trial remains a question -- that's why there are trials -- but I'd bet on the AG here.

Inoxmark
08-03-2005, 1:26 PM
12131 also gives the DOJ authority to collect "an annual fee" and to kick the non-payers off the roster.

Trader Jack
08-03-2005, 3:47 PM
So if it is not on the list, it is by California definition an "Unsafe Handgun"

As a classified "Unsafe Handgun" it can not be sold within the state of Ca. to the general public. BUT a law enforcement officer is allowed to purchase that same "Unsafe" handgun because he\she has a badge. That is pure bull **** most of those Peace Officers (sic) can't shoot worth a **** and even more know little about gun safety

I would love to see a police officer screw up in a shooting with one of those "Unsafe" handguns and then sue the cop, the department, the city, the state, and the DOJ.

bear
08-04-2005, 9:26 AM
OK yeah, it's the "roster" thing. I didn't see that.

Not on the roster, can't be sold. That's it.

icormba
08-04-2005, 4:09 PM
anyway it's written... I still say this 1 word says it best...

Originally posted by Colossians323:
extortion