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View Full Version : Curious Question About Open Carry 12031


Shadow
08-30-2009, 11:25 PM
Sections in bold are what I am interested in.

12031. (a) (1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her
person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or
on any public street in a prohibited area of unincorporated territory.

(g) A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or
shell in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip
thereof attached to the firearm. **

** In “People v. Clark” (1996), the California Court of Appeal clarified that in order to be “loaded” a firearm must have
ammunition “placed into a position from which it can be fired”. It even went so far as to point out as an example of what is not
loaded to include shells attached to a shotgun inside a buttstock shell carrier.

So in this case the firearm was considered not loaded because the round was not in a position to be fired and it is this wording that I am curious about.

Taking an over under shotgun as an example, to load it, one must unlock the barrels and physically load a round and close it. It is now considered loaded because the round is in a "position from which it can be fired".

Wouldn't this be the same as a magazine that is loaded but not chambered? If the round is not chambered it is not “placed into a position from which it can be fired”. It takes a manual effort similar to that of loading a shotgun in the manner mentioned above.

Could the same argument under the term "loaded" apply to a magazine being loaded yet the firearm not be because it is not chambered in a position to be fired?

Please don't comment about me pushing the rules and risking 10 to 50k if I wanna try it. I don't. I just want to know how you interpret this wording and want to have a dialogue around that. Law has become a very curious thing for me being a gun owner.

-Shadow

Librarian
08-30-2009, 11:43 PM
You'd have to ask the judge.

However, you are essentially advocating the 'Fish and Game' version of "loaded". Part of what the judge in Clarke said is roughly that the legislature knows how to write laws, and if they don't do it in a particular way, it was probably deliberate.

The Leg knows about the F&G version of "loaded"; that's not what they mean in PC.

And the title is a tad misleading - this isn't really an OC question so much as a "loaded" question.

Theseus
08-31-2009, 10:33 AM
so much as a "loaded" question.

And we don't like "loaded" questions. . . :eek:

Decoligny
08-31-2009, 11:39 AM
I believe that the common definition of "in a position from which it can be fired" means that the ammuntion can, through simply manipulating the mecanism of the firearm itself, be fired.

Your example above, requires physical handling of the ammunition to place the shotgun shells into the open shotgun. This first step having to be done means that the shotgun is unloaded.

A semi-auto pistol, with a full magazine already in the pistol, can require as little as two operations of the firearms mechanisms to be fired, i.e. racking the slide and pulling the trigger. There is no handling of the ammunition, and the ammunition is indeed attached to the firearm, and thus loaded.

timdps
08-31-2009, 1:03 PM
A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or
shell in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip
thereof attached to the firearm.


Somewhat OT:
Is there a legal definition of "unexpended cartridge".

Would a dummy or drill cartridge be an expended cartridge?. Want to keep a 10 round belt in the Henderson Defense CA modified Yugo M53 when transporting to show that the magazine (belt) can not be removed without using a tool. Sort of like leaving an empty mag in the rifle when transporting a BB OLL.

I guess I could also use already fired rounds and then there would be no questions caused by bullets in the shells... Probably a better idea.

tim

Librarian
08-31-2009, 2:11 PM
Somewhat OT:
Is there a legal definition of "unexpended cartridge".

Would a dummy or drill cartridge be an expended cartridge?. Want to keep a 10 round belt in the Henderson Defense CA modified Yugo M53 when transporting to show that the magazine (belt) can not be removed without using a tool. Sort of like leaving an empty mag in the rifle when transporting a BB OLL.

I guess I could also use already fired rounds and then there would be no questions caused by bullets in the shells... Probably a better idea.

tim

I don't believe there is such a def in the 'loaded' section.

Unless the legislature has some kind of a bee in its bonnet, it won't define something which is in common use. Where things can go off the rails is when one follows common usage, and some court doesn't agree with you.

That's why Clarke is important - it makes a 'common usage' of "loaded" the legal definition.

But ultimately there must be some 'atomic' concepts, irreducibly basic so that people can communicate using English.

Unless you do see 'legalese', you should try plain English to see if it creates contradictions.

Untamed1972
08-31-2009, 2:15 PM
Sections in bold are what I am interested in.

[(g) A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or
shell in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip
thereof attached to the firearm. **



The way I read that is....if there is an unexpended round in a magazine, and the magazine is attached or inserted into the firearm then it is considered loaded, whether a round is in the chamber or not.

doc1buc
08-31-2009, 3:17 PM
So just for my clarification please, I can have shotgun rounds in a shell carrier on the buttstock of my truck shotgun?

Dr Rockso
08-31-2009, 3:31 PM
So just for my clarification please, I can have shotgun rounds in a shell carrier on the buttstock of my truck shotgun?
Yes, Clarke said that specific scenario would not constitute a loaded gun.

doc1buc
08-31-2009, 3:50 PM
Awesome, Thank you!