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View Full Version : Whats there to stop CPC 12001(a)(1) from being applied to long guns?


NeoWeird
07-21-2009, 12:45 AM
I'm just curious. Suppose some company made SBR barrels for any number of rifles. What would stop 12001(a)(1) from making EVERY Mini-14,M-14/M1A, M1 Carbine, etc in the state into an AW "handgun" since it would be semi-automatic with a magazine outside the pistol grip? I've spent the last hour or so trying to find some exemption listed elsewhere but can't seem to find anything.

Is this just dangerous territory for the random gun owner, but there aren't very many firearms designed to "interchange barrels" , or is this poor wording that needs to be challenged or would be easily defendable in a court case?

Just letting my mind wander outside the box and that specific portion of Penal Code just seems to kill EVERYTHING, even pretty standard Turners type firearms.

Quiet
07-21-2009, 1:32 AM
Penal Code 12001
(a)(1) As used in this title, the terms "pistol," "revolver," and "firearm capable of being concealed upon the person" shall apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length. These terms also include any device that has a barrel 16 inches or more in length which is designed to be interchanged with a barrel less than 16 inches in length.

NeoWeird
07-21-2009, 1:42 AM
Penal Code 12001
(a)(1) As used in this title, the terms "pistol," "revolver," and "firearm capable of being concealed upon the person" shall apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length. These terms also include any device that has a barrel 16 inches or more in length which is designed to be interchanged with a barrel less than 16 inches in length.

Bold. Hence the preface of asking about firearms that have ANY manufacturer who makes SBR barrels for said firearms.

So, technically, a featureless AR build could be hit as an unregistered assault weapon under the handgun definitions since there are sub 16" AR barrels out there and the upper is designed to be interchanged.

ETA: This is exactly the type of scenario I'm asking about. Exactly WHERE in the Penal Code are featureless builds protected as longguns so that 12001(a)(1) can't be used to hit them as assault pistols?

Fate
07-21-2009, 9:48 AM
I believe this law was aimed at the Thompson "Contender", a pistol that you could swap out barrels by hand. Barrels needing gunsmithing tools aren't "interchangeable".

Rhys898
07-21-2009, 9:55 AM
Does it have a stock on it? If so it could be a SBR, but I don't think they would charge you with a 12001a1.

Untamed1972
07-21-2009, 10:09 AM
Bold. Hence the preface of asking about firearms that have ANY manufacturer who makes SBR barrels for said firearms.

So, technically, a featureless AR build could be hit as an unregistered assault weapon under the handgun definitions since there are sub 16" AR barrels out there and the upper is designed to be interchanged.

ETA: This is exactly the type of scenario I'm asking about. Exactly WHERE in the Penal Code are featureless builds protected as longguns so that 12001(a)(1) can't be used to hit them as assault pistols?

If you want to go to that extreme then what prevents someone with any legal length rifle from just cutting a few inches off the end? My point just being that anything can be done if someone wants to do it bad enough.

TerryC
07-21-2009, 10:16 AM
I always laugh at the term assault weapon. A rock is a assualt weapon.

Mr.Pickles
07-21-2009, 11:10 AM
I always laugh at the term assault weapon. A rock is a assualt weapon.

I loled

NeoWeird
07-21-2009, 5:43 PM
I believe this law was aimed at the Thompson "Contender", a pistol that you could swap out barrels by hand. Barrels needing gunsmithing tools aren't "interchangeable".

Just because it was written in response to, or aimed at one particular item doesn't mean it can't be used for another purpose. Again, an AR upper can be swapped by pressing two buttons. Ruger 10/22 and Charger barrels can be swapped with a single allen key. Remington 870 barrels can be changed by hand by unscrewing the magazine cap. There are MANY guns out there that don't require tools to change their barrels.

Does it have a stock on it? If so it could be a SBR, but I don't think they would charge you with a 12001a1.

That's addressed in 12001(1)(f) where it states:

(f) Nothing shall prevent a device defined as a "handgun," "pistol," "revolver," or "firearm capable of being concealed upon the person" from also being found to be a short-barreled shotgun or a short-barreled rifle, as defined in Section 12020.

So yes, it COULD be classified as a short barrel shotgun or rifle. Now the problem with legal longguns is they don't fit the definition of a short barrel shotgun or rifle, however, using the definition above, a 20" featureless AR build fits the definition of an assault weapon as a semi-automatic handgun with a barrel shroud, a threaded barrel, and a magazine outside the pistol grip.

If you want to go to that extreme then what prevents someone with any legal length rifle from just cutting a few inches off the end? My point just being that anything can be done if someone wants to do it bad enough.

Nothing. But that's not law, that's breaking the law. What I'm talking about is written codified law. So the real question is what's to stop any person on that end of the law from busting anyone using this CPC? As far as I can see, it's the same as what's stopping someone from chopping their barrel - Nothing.

Captain Evilstomper
07-21-2009, 6:01 PM
i think it's about constructive possession, if you have one ar complete w/20" barrel and a 10.5" upper you might be in some trouble if they want to push you, even though you could say that you were gathering the parts for a SS ar pistol.(it might be better for you if you had other parts as well) i think that it would be going over the edge into big brother territory if the gov't said, 'there exist barrels to make this gun illegal so therefore we re-classify ALL 10/22s as SBR because someone could do it.'

NeoWeird
07-23-2009, 3:45 PM
i think it's about constructive possession, if you have one ar complete w/20" barrel and a 10.5" upper you might be in some trouble if they want to push you, even though you could say that you were gathering the parts for a SS ar pistol.(it might be better for you if you had other parts as well) i think that it would be going over the edge into big brother territory if the gov't said, 'there exist barrels to make this gun illegal so therefore we re-classify ALL 10/22s as SBR because someone could do it.'

12001(a)(1) does not talk about constructive posession nor intent, it also does not say if you have both barrel lengths. It says, cut and dry, if it meets these characteristics and CAN have a barrel of less than 16" interchanged, than it's a pistol, revovler, or firearm capable of being concealed upon the person.

Being that this is the VERY FIRST entry in the Dangerous Weapons Control Laws I would imagine that it was put there for a reason. It's also something that's been there from the start, not something written after the fact that contradicts original law or intent. That is THE law.

It doesn't state later that IF it meets other criteria it falls into a different category.

It doesn't state later that longugns do not fall into that category but fall into another category.

It doesn't state that it refers judgment to the ATF.

It DOES state that even if it is a pistol, revolver, or firearm capable of being concealed that it can ALSO be calssified as a longgun (more specifically a short barreled shortgun or longgun). So the law states that a firearm CAN be a handgun AND a longgun.

So, again, I ask, what is there that stops someone, whether it be a pissed off cop, over zealous DA, etc from LEGALLY using 12001(a)(1) to charge someone with a legal longgun as posession of an assault handgun?

ke6guj
07-23-2009, 3:59 PM
I think that 12001(a)(1) was more to prevent someone from selling something like a T/C contender with a 16" barrel installed, so that pistol regs didn't apply, but to also include a 10" barrel in the kit so that he could make it a pistol.

As for why it isn't enforced for stuff like AR-15s, 10/22s, etc? It might be because it would open a can of worms that could blow up so big. Every "convertable" rifle could be considered a pistol Why did CADOJ allow for this to go on for 30+ years (or whenever that "interchangable" language was added) without saying anything? Why did they not require these dealers to DROS them as handguns? They've obviously audited enough dealers to see if someone drosed an AR-pattern rifle as a long gun instead of a handgun?

CHS
07-23-2009, 11:11 PM
So, again, I ask, what is there that stops someone, whether it be a pissed off cop, over zealous DA, etc from LEGALLY using 12001(a)(1) to charge someone with a legal longgun as posession of an assault handgun?

There doesn't appear to be anything to stop them.

But it will be *VERY* entertaining when they try.

NeoWeird
07-24-2009, 7:09 AM
The main reason I ask is because ATF says that an Any Other Weapon is NOT a handgun/pistol nor is it a rifle or shotgun. The CA DOJ also recognizes this fact by specifically exempting AOWs from SBR and SBS status. The ONLY thing stopping centerfire AOW from being more appealing is the fact that they fall into this category of "handgun" per 12001. But so does a LOT of firearms.

So are we being overly cautious by saying an AOW based on a pistol is still a handgun in California, or is an AOW an AOW and the law is too convulted to clearly say it?

Case in point, let's say you register a 1911 as an AOW. The ATF says it's no longer a handgun, it's an Any Other Weapon. Any Other Weapons aren't regulated by configutation as assault weapons in California. So you put a vertical grip on it, because it is an AOW. Is it an AOW in California and you're legal or is it an assault weapon because the CA DOJ says so?

This is the confussion I'm trying to clear up. The average person will say it's an assault weapon because it's a pistol with a forward vertical grip...but it's no longer a pistol per ATF's definition and the CA DOJ's definition could have a howitzer fall into the category of handgun. So who is right?

GuyW
07-24-2009, 11:27 AM
Case in point, let's say you register a 1911 as an AOW.

I know your floating a hypothetical for your main question...

...but....

[edit: apparently the above assertion is wrong...]

.

NeoWeird
07-24-2009, 11:31 AM
I know your floating a hypothetical for your main question...

...but unless one made the 1911 frame themselves, an existing 1911 can't be changed to an AOW - its a handgun....

.

There are plenty of AOWs out there that started life as handguns. Just like there are plenty AOWs out there that started life as shotguns without stocks.

Even if that were the case, which it isn't, then suppose the 1911 frame was created from a piece of billet and completely machined and manufactured by the person who registered it as an AOW.

CHS
07-24-2009, 11:32 AM
...but unless one made the 1911 frame themselves, an existing 1911 can't be changed to an AOW - its a handgun....


You can absolutely make an AOW from a handgun.

What you can't do is make an AOW from a rifle or shotgun with buttstocks.

GuyW
07-24-2009, 11:36 AM
You can absolutely make an AOW from a handgun.

What you can't do is make an AOW from a rifle or shotgun with buttstocks.

OK, I apparently need to revisit the arcane world of AOWs....

.

ke6guj
07-24-2009, 11:44 AM
I can't find the original link, but this is what ATF says about AOWs.


U.S. Department of Justice

Bureau of Alcohol, Tobacco,
Firearms and Explosives


Washington, DC 20226


Adding a Vertical Fore Grip to a Handgun

“Handgun” is defined under Federal law to mean, in part, a firearm which has a short stock and is designed to be held and fired by the use of a single hand…. Gun Control Act of 1968, 18 U.S.C. § 921(a)(29).

Under an implementing regulation of the National Firearms Act (NFA), 27 C.F.R. § 479.11, “pistol” is defined as a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s).

The NFA further defines the term “any other weapon” (AOW) as any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition. 26 U.S.C. § 5845(e).

ATF has long held that by installing a vertical fore grip on a handgun, the handgun is no longer designed to be held and fired by the use of a single hand. Therefore, if individuals install a vertical fore grip on a handgun, they are “making” a firearm requiring registration with ATF’s NFA Branch. Making an unregistered “AOW” is punishable by a fine and 10 years’ imprisonment. Additionally, possession of an unregistered “AOW” is also punishable by fine and 10 years’ imprisonment.

To lawfully add a vertical fore grip to a handgun, a person must make an appropriate application on ATF Form 1, “Application to Make and Register a Firearm.” The applicant must submit the completed form, along with a fingerprint card bearing the applicant’s fingerprints; a photograph; and $200.00. The application will be reviewed by the NFA Branch. If the applicant is not prohibited from possessing a firearm under Federal, State, or local law, and possession of an “AOW” is not prohibited in the applicant’s State of residence, the form will be approved. Only then may the person add a vertical fore grip to the designated handgun.

A person may also send the handgun to a person licensed to manufacture NFA weapons. The manufacturer will install the fore grip on the firearm and register the firearm on an ATF Form 2. The manufacturer can then transfer the firearm back to the individual on an ATF Form 4, which results in a $5.00 transfer tax. If the manufacturer is out of State, the NFA Branch will need a clarification letter submitted with the ATF Form 4 so that the NFA Branch Examiner will know the circumstances of the transfer. Questions can be directed to the NFA Branch or the Firearms Technology Branch.

CHS
07-24-2009, 12:56 PM
ATF has long held that by installing a vertical fore grip on a handgun, the handgun is no longer designed to be held and fired by the use of a single hand. Therefore, if individuals install a vertical fore grip on a handgun, they are “making” a firearm requiring registration with ATF’s NFA Branch. Making an unregistered “AOW” is punishable by a fine and 10 years’ imprisonment. Additionally, possession of an unregistered “AOW” is also punishable by fine and 10 years’ imprisonment.

To lawfully add a vertical fore grip to a handgun, a person must make an appropriate application on ATF Form 1, “Application to Make and Register a Firearm.” The applicant must submit the completed form, along with a fingerprint card bearing the applicant’s fingerprints; a photograph; and $200.00. The application will be reviewed by the NFA Branch. If the applicant is not prohibited from possessing a firearm under Federal, State, or local law, and possession of an “AOW” is not prohibited in the applicant’s State of residence, the form will be approved. Only then may the person add a vertical fore grip to the designated handgun.


I think there's a lot of precedent to make this go away.

There are *MANY* handguns that the ATF has given their blessing to that require or can be used two-handed. ANY AR pistol meets this definition.

Plus, it's stupid that it applies to handguns, but not pistol-gripped-only long guns.

ke6guj
07-24-2009, 1:09 PM
I think there's a lot of precedent to make this go away.

There are *MANY* handguns that the ATF has given their blessing to that require or can be used two-handed. ANY AR pistol meets this definition.that may be the case, but is the heat shield on an AR-pistol designed to be fired with the second hand on the heat shield, or does it have dual-use as both a heatshield and a grip. Whereas a VFG could reasonably aruged that it is designed to be used as a second grip, and that its inclusion on a handgun is for the specific purpose of gripping the firearm with two hands.

And yes, it should go away. In fact, AFAIK, ATF has lost in court before regarding a VFG'ed handgun being an AOW. But since they didn't appeal it, it is just a trial verdict that doesn't bind any other courts to the ruling, and ATF continues to assert that a VFG'ed handgun is an AOW that they will prosecute on.

Plus, it's stupid that it applies to handguns, but not pistol-gripped-only long guns.Yes, it is stupid, but if you accept that a VFG'ed handgun is an AOW, the reason that it does not apply to PG-only or double PG'ed long guns is that they are not concealable.

NeoWeird
07-24-2009, 3:02 PM
That letter address what I said earlier, that a vertical foregrip on a handgun makes it so that it does not fit the ATF's definition of a handgun. While they require, at least at this time, that it must be registered since you are making a firearm in the a new category (and a controlled category at that) then it would stand to reason that it is no longer part of it's original category of "handgun". If that makes sense...

I'm really hoping someone can point out where in our Penal Code it clears this issue up. I'd hate to write the CA DOJ and make someone's head explode just to get back a "Check with your local DA" letter.

ke6guj
07-24-2009, 3:17 PM
That letter address what I said earlier, that a vertical foregrip on a handgun makes it so that it does not fit the ATF's definition of a handgun. While they require, at least at this time, that it must be registered since you are making a firearm in the a new category (and a controlled category at that) then it would stand to reason that it is no longer part of it's original category of "handgun". If that makes sense...but CA does not rely on the federal definition of handgun. They define a handgun to be anything with a barrel less than 16". They even say that a handgun can also be an SBR or SBS at the same time.

12001(f) Nothing shall prevent a device defined as a "handgun," "pistol," "revolver," or "firearm capable of being concealed upon the person" from also being found to be a short-barreled shotgun or a short-barreled rifle, as defined in Section 12020.

NeoWeird
07-24-2009, 3:35 PM
but CA does not rely on the federal definition of handgun. They define a handgun to be anything with a barrel less than 16". They even say that a handgun can also be an SBR or SBS at the same time.

I understand that. 12001(a)(1) is the specific penal code that defines handgun. My problem with that definition is that just about ANY firearm can fall into category. A Mossberg 590 Cruiser easily falls into that category and does not have a shoulder stock to confuse it's definition as a non-longgun.

So what's stopping them from saying every Mossberg 590 Cruiser from being defined as a handgun? If that's the case, every dealer who sold one to someone under the age of 21 committed a crime.

This specific penal code is so vauge and open that it opens MANY cans of worms. So is this code so poorly worded that it needs to be specifically addressed and clarified or have people been committing crimes left and right in this state and everyone has just turned their heads because they THINK they know what the law says?

CHS
07-24-2009, 4:19 PM
So what's stopping them from saying every Mossberg 590 Cruiser from being defined as a handgun? If that's the case, every dealer who sold one to someone under the age of 21 committed a crime.


It's already a crime to sell a Cruiser to someone under 21 :)

NeoWeird
07-24-2009, 5:36 PM
Well I just realized something else. Anyone that owns a shotgun that can have it's barrel changed to something shorter than 16", that includes Remington 870s, Mossberg 500 series weapons, etc. would now be in posession of a Destrcutive Device as it would be a handgun with a bore greater than .60 caliber.

That means just about EVERY dealer in the state would be guilty of multiple counts of selling a destructive device without permit to someone without a permit. Not to mention how man people themselves would be in violation of that law.

Am I the ONLY one that sees this vague language as a SERIOUS issue?

CHS
07-24-2009, 5:55 PM
Am I the ONLY one that sees this vague language as a SERIOUS issue?

It's only serious when they start charging people.

In all reality, I think this is a GREAT place to start taking down our laws. At this point in the game, it's too late for the state to start enforcing these laws. There's just no way CA can start prosecuting the hundreds of thousands of gun owners that have firearms that meet these extremely vague definitions. So if it's impossible to enforce those laws, they need to be struck from the books.

When they are struck from the books, it makes it easier for the 2A advocates to make more headway.

ke6guj
07-24-2009, 6:02 PM
Am I the ONLY one that sees this vague language as a SERIOUS issue?

Well, I would see the first part of 12001(a) as pretty clear.
12001. (a)(1) As used in this title, the terms "pistol," "revolver," and "firearm capable of being concealed upon the person" shall apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length. These terms also include any device that has a barrel 16 inches or more in length which is designed to be interchanged with a barrel less than 16 inches in length. The bolded part may be vague, and not been routinely enforced.

MindBuilder
07-24-2009, 8:14 PM
...designed to be interchanged with a barrel less than 16 inches in length.

I'm not a lawyer so I could easily be wrong about this, but it seems to me that this key phrase suggests an intent of the designer to make a device where one of the designer's conscious intentions is that the device be used with barrels less than 16 inches.

This is a reasonable interpretation because the law could have easily been phrased without the word "designed" so that it would apply to all devices with interchangeable barrels that could accept a barrel less than 16 inches, whether they were designed with that intent or not. Furthermore, the vast majority of long guns have interchangeable barrels, and there is no indication that the lawmakers intended or sought to stop sales of the vast majority of long guns or have them recategorized as handguns or redesigned without interchangeable barrels. Also note that there is no mention in this law about whether a tool is needed to interchange the barrel. A barrel is still interchangeable even if a tool is required to interchange it.

So you might ask: What is the point of a law that can't be enforced without reading the intentions in the mind of the perpetrator? Well, remember, the manufacturer typically is the designer. So if the manufacturer sells a device with a long and short barrel in the same package, it might be concluded that the manufacturer designed it to accept short barrels. Of course this leaves large and obvious loopholes, but these gun laws about short and long guns don't really make much sense when they are thoroughly analyzed anyway. After all, a long barrel can be made short in a couple minutes or less with a hacksaw and no skill.

CHS
07-24-2009, 9:07 PM
So you might ask: What is the point of a law that can't be enforced without reading the intentions in the mind of the perpetrator? Well, remember, the manufacturer typically is the designer. So if the manufacturer sells a device with a long and short barrel in the same package, it might be concluded that the manufacturer designed it to accept short barrels. Of course this leaves large and obvious loopholes, but these gun laws about short and long guns don't really make much sense when they are thoroughly analyzed anyway. After all, a long barrel can be made short in a couple minutes or less with a hacksaw and no skill.

The M4, or Colt 6921 (Semi-auto) was designed from the factory to accept and comes with a barrel less than 16".

The law, while unenforced, certainly affects all of us.

NeoWeird
07-24-2009, 10:19 PM
The true reality, as far as I can see, has only been grazed on here. The truth is that the CA DOJ could, if they wanted, use this against anyone at any time. They just haven't...yet.

Then again, all it would take is a change in climate, like another school shooting by a psycho, and them wanting to make an example out of someone. Next thing you know that Mossberg 590 Cruiser is getting you to court even though it's still in factory configuration.

Not saying anyone will go to jail over it, but they could easily use it as a ploy to drain money from honest gun owners and make gun ownership, especially those in a semi-auto category, VERY unpleasant.

I'm in the process of writting a letter on this subject. Just not entirely sure how I want to format it.

ke6guj
07-25-2009, 12:17 AM
I'm in the process of writting a letter on this subject. Just not entirely sure how I want to format it.

Before you do that, I'd talk to one of the go-to firearms attornies to see if any case law regarding that is out there, and to make sure there aren't any land mines with a poorly formated letter.

NeoWeird
07-25-2009, 12:43 AM
Before you do that, I'd talk to one of the go-to firearms attornies to see if any case law regarding that is out there, and to make sure there aren't any land mines with a poorly formated letter.

Anyone in particular come to mind? You can PM me if you'd like.

ke6guj
07-25-2009, 12:59 AM
Guys like Chuck Michel (formally TMLLP), Jason Davis, Don Kilmer, Bruce Colodny. Oaklander deals with CA firearms law as well, and may be able to help.