PDA

View Full Version : "Unsafe" handgun roster and Active Duty Military


markw
05-31-2009, 9:23 PM
Ok, this just came up in the handguns area and we're bringing it over here. :)

The last sentence of 12125 (b)(4) is the "out" on the roster for LEO. However it appears to also apply to Active Duty military. It's a separate sentence from the "for use in discharge of their official duties" sentence.
So apparently AD military get the "out" also.

(4) The sale or purchase of any pistol, revolver or other firearm
capable of being concealed upon the person, if the pistol, revolver,
or other firearm is sold to, or purchased by, the Department of
Justice, any police department, any sheriff's official, any marshal's
office, the Youth and Adult Correctional Agency, the California
Highway Patrol, any district attorney's office, or the military or
naval forces of this state or of the United States for use in the
discharge of their official duties. Nor shall anything in this section prohibit the sale to, or purchase by, sworn members of these agencies of any pistol, revolver, or other firearm capable of being concealed upon the person.

hoffmang
05-31-2009, 9:54 PM
If you're active duty military with a residence in California, you can't acquire an unrostered handgun personally. The excpetion in the law is for the military itself.

-Gene

DDT
05-31-2009, 9:57 PM
If you're active duty military with a residence in California, you can't acquire an unrostered handgun personally. The excpetion in the law is for the military itself.

-Gene

That was my first thought too but is looks as though only the police departments (as entities) are listed too. Unless there is a different section that applies to individual police.

markw
05-31-2009, 10:03 PM
If you're active duty military with a residence in California, you can't acquire an unrostered handgun personally. The excpetion in the law is for the military itself.

-Gene

I know for the 10+ years I was on active duty here I wasn't a resident. Lived in base housing, but that was another set of rules. However California didn't consider me a resident, and at any time I could've probably gone back to Iowa and picked up whatever I wanted while on leave. Which I guess I would've had to pay a $19 fee and report it within 60 days of bringing it into California.

hoffmang
05-31-2009, 10:12 PM
I know for the 10+ years I was on active duty here I wasn't a resident. Lived in base housing, but that was another set of rules. However California didn't consider me a resident, and at any time I could've probably gone back to Iowa and picked up whatever I wanted while on leave. Which I guess I would've had to pay a $19 fee and report it within 60 days of bringing it into California.

Correct.

-Gene

markw
05-31-2009, 10:25 PM
Correct.

-Gene

Now, could I have sold it via ppt within the 60 days?

wilit
05-31-2009, 10:28 PM
If you're active duty military with a residence in California, you can't acquire an unrostered handgun personally. The excpetion in the law is for the military itself.

-Gene

I realize there is no logic to our laws, but how can active duty military get a permit for an AW but can't buy an unrostered handgun (in state)?

markw
05-31-2009, 10:46 PM
I realize there is no logic to our laws, but how can active duty military get a permit for an AW but can't buy an unrostered handgun (in state)?

I know on active duty I was a sworn member of the armed forces, so the following should apply. If not, it adds "fuel" miles and extra burnt CO2 because the service member has to go back home to get something. :)

"Nor shall anything in this section prohibit the sale to, or purchase by, sworn members of these agencies of any pistol, revolver, or other firearm capable of being concealed upon the person."

Librarian
06-01-2009, 2:23 PM
I know on active duty I was a sworn member of the armed forces, so the following should apply. If not, it adds "fuel" miles and extra burnt CO2 because the service member has to go back home to get something. :)

"Nor shall anything in this section prohibit the sale to, or purchase by, sworn members of these agencies of any pistol, revolver, or other firearm capable of being concealed upon the person."

As implemented, the DROS system has non-roster options for "Peace Officers" and for PPT. No such option is available for military - military are not PC 830ff (http://caselaw.lp.findlaw.com/cacodes/pen/830-832.17.html) 'peace officers'.

Doesn't mean you're necessarily wrong, but you won't get an average CA FFL to go along.

DDT
06-01-2009, 3:44 PM
As implemented, the DROS system has non-roster options for "Peace Officers" and for PPT. No such option is available for military - military are not PC 830ff (http://caselaw.lp.findlaw.com/cacodes/pen/830-832.17.html) 'peace officers'.

Doesn't mean you're necessarily wrong, but you won't get an average CA FFL to go along.

The problem is that if a police officer can buy because of this clause:

"sworn members of these agencies of any pistol, revolver, or other firearm"

Why not a member of the U.S. Military? The agency is listed in the same sentence as police departments and surely we all know that U.S. Military are taking their own weapons into the sandbox.

This is probably an issue ripe for challenge but it effects a very small number of people and "The Right People" aren't going to do anything with this when they are busy trying to recover rights for all of us.

Librarian
06-01-2009, 4:13 PM
The problem is that if a police officer can buy because of this clause:

"sworn members of these agencies of any pistol, revolver, or other firearm"

Why not a member of the U.S. Military? The agency is listed in the same sentence as police departments and surely we all know that U.S. Military are taking their own weapons into the sandbox.

This is probably an issue ripe for challenge but it effects a very small number of people and "The Right People" aren't going to do anything with this when they are busy trying to recover rights for all of us.

At a generous guess, the writers of this section thought they wrote
"sworn [[peace officers who are]] members of these agencies of any pistol, revolver, or other firearm"

But we have to obey the law the way they wrote it ... :43:

Better to focus on making the whole thing go away.

ad6mj
06-01-2009, 4:53 PM
I don't see where it would require active duty. It says "sworn members of these agencies". That would seem to include all sworn members of the military or naval forces of this state or of the United States.

kermit315
06-01-2009, 5:56 PM
tagged to watch. We were discussing this in another thread, and I was following the same line of logic as Bill, but I want to see how this pans out.

I mean, the law didnt change significantly to get OLL's into the maintstream, maybe this is just an enforcement of current policy issue.

DDT
06-01-2009, 6:44 PM
At a generous guess, the writers of this section thought they wrote
"sworn [[peace officers who are]] members of these agencies of any pistol, revolver, or other firearm"


I would guess that they didn't really think about it either way. I'm sure that some LEO union was looking out after their own and asked for the wording and the legislators didn't really think about it one way or the other.


But we have to obey the law the way they wrote it ... :43:


Yes we do, just like non-detachable magazines.


Better to focus on making the whole thing go away.

I'm sure that is the approach of "The Right People" at this juncture, as I suggested above. It would make for an interesting OAL underground regulation filing though. Gotta keep Allison busy while waiting for the en banc vote.

hoffmang
06-01-2009, 7:12 PM
I'm sure that is the approach of "The Right People" at this juncture, as I suggested above. It would make for an interesting OAL underground regulation filing though. Gotta keep Allison busy while waiting for the en banc vote.

Right now there is plenty to do that the direct frontal assault is probably even easier than nibbling around the edge.

-Gene

markw
06-01-2009, 8:41 PM
Ok, started digging. It appears that the 12072(f)(2) requirement for a "Personal Handgun Importer" to register pistols within 60 days does not apply to Active Duty Military Non-Residents, as they do not meet the 12001(n)(6) definition of "Personal Handgun Importer". 12001(o)(2) Says 12001(n)(6) is only met when they are discharged. Therefore they can't be a "personal handgun importer." 120072(f)(2) 60 days registration is only applicable to "personal handgun importers." Please correct me if I'm wrong here. Oh, not to deviate from the OP... :)




(n) As used in this chapter, a "personal handgun importer" means
an individual who meets all of the following criteria:
.....
(6) He or she moves into this state on or after January 1, 1998,
as a resident of this state.

(o) For purposes of paragraph (6) of subdivision (n):
(1) Except as provided in paragraph (2), residency shall be
determined in the same manner as is the case for establishing
residency pursuant to Section 12505 of the Vehicle Code.
(2) In the case of members of the Armed Forces of the United
States, residency shall be deemed to be established when he or she
was discharged from active service in this state.

12702(f)
(2) (A) On or after January 1, 1998, within 60 days of bringing a
pistol, revolver, or other firearm capable of being concealed upon
the person into this state, a personal handgun importer shall do one
of the following:
(i) Forward by prepaid mail or deliver in person to the Department
of Justice, a report prescribed by the department including
information concerning that individual and a description of the
firearm in question.
(ii) Sell or transfer the firearm in accordance with the
provisions of subdivision (d) or in accordance with the provisions of
an exemption from subdivision (d).
(iii) Sell or transfer the firearm to a dealer licensed pursuant
to Section 12071.
(iv) Sell or transfer the firearm to a sheriff or police
department.

lorax3
06-01-2009, 10:00 PM
The above seems correct. It seems as long as someone is stationed in active duty, then they are not resident, at least pursuant to 120720 PC and 12505 VC.

So it would seen if a stationed military member were to return to his home state he could buy non-rostered handguns and bring them back in CA without registration as only "personal handgun importers" need to register handguns upon moving into CA as a resident.

12072(o)(1) Except as provided in paragraph (2), residency shall be
determined in the same manner as is the case for establishing
residency pursuant to Section 12505 of the Vehicle Code.

VC 12505. (a) (1) For purposes of this division only and
notwithstanding Section 516, residency shall be determined as a
person's state of domicile. "State of domicile" means the state
where a person has his or her true, fixed, and permanent home and
principal residence and to which he or she has manifested the
intention of returning whenever he or she is absent.


Interesting...

lorax3
06-02-2009, 5:16 PM
Anyone one have any input on this exemption?

Matt C
06-02-2009, 5:34 PM
Anyone one have any input on this exemption?

I have to agree with Gene, as long as we attacking the roster head on there is no point in wasting resources fighting for an exemption, which just adds more people to the "special class" that is allowed to buy those guns.

The same goes for PPTs with out of state residents that are "in person" at a CA FFL but don't have a CA ID. The DROS system does not allow for such a transfer the PC does not prohibit it.

Let's see how the cases here and in DC go before we push these issues with OAL.

n6nvr
06-03-2009, 3:26 AM
I realize there is no logic to our laws, but how can active duty military get a permit for an AW but can't buy an unrostered handgun (in state)?

Unless he was considered a non-resident and unable to buy any pistols, wouldn't he be able to buy an unrostered pistol in a PPT or used or any way a resident could purchase the pistol? Just not as new from a regular dealer?

Prima facie evidence of residency for driver's licensing purposes
includes, but is not limited to, the following:
(A) Address where registered to vote.
(B) Payment of resident tuition at a public institution of higher
education.
(C) Filing a homeowner's property tax exemption.
(D) Other acts, occurrences, or events that indicate presence in
the state is more than temporary or transient.Wouldn't PCS orders indicate this? since most PCS orders are for periods that aren't temporary or transient?
(2) California residency is required of a person in order to be
issued a commercial driver's license under this code.
(b) The presumption of residency in this state may be rebutted by
satisfactory evidence that the licensee's primary residence is in
another state. Like maintaining a property and/or voting registration and/or vehicle registration in another state?


CVC 516

516. "Resident" means any person who manifests an intent to live or
be located in this state on more than a temporary or transient
basis. Presence in the state for six months or more in any 12-month
period gives rise to a rebuttable presumption of residency.
The following are evidence of residency for purposes of vehicle
registration:
(a) Address where registered to vote.
(b) Location of employment or place of business.
(c) Payment of resident tuition at a public institution of higher
education.
(d) Attendance of dependents at a primary or secondary school.
(e) Filing a homeowner's property tax exemption.
(f) Renting or leasing a home for use as a residence.
(g) Declaration of residency to obtain a license or any other
privilege or benefit not ordinarily extended to a nonresident.
(h) Possession of a California driver's license.
(i) Other acts, occurrences, or events that indicate presence in
the state is more than temporary or transient.