bwiese
11-21-2005, 02:58 PM
[crossposted, orig thread in Rifleman's Forum but needs to be its own item...]
My brief 'research' into declaring guns as AWs - from PC 12xxx law pulled from DOJ 'Dangerous Weapons Control Laws' webpage. Underline/bold quoted text mine; a few snips/abbreviatons to save space.
12276.5.
(a) Upon request by the Atty General filed in a verified petition in a superior court of a county with a population of more than 1000000, the superior court shall issue a declaration of temporary suspension of the manufacture, sale, distribution, transportation, or importation into the state, or the giving or lending of a firearm alleged to be an assault weapon within the meaning of Sect 12276 because the firearm is either of the following:
(1) Another model by the same mfgr or a copy by another mfgr of an assault weapon listed in subdivision (a), (b), or (c) of Sect 12276 which is identical to one of the assault weapons listed in those subdivisions except for slight modifications or enhancements including, but not limited to {cosmetic features/calibers/bbl length...}. The court shall strictly construe this paragraph so that a firearm which is merely similar in appearance but not a prototype or copy cannot be found to be within the meaning of this paragraph.
(2) A firearm first manufactured or sold to the general public in California after Jun 1 1989, which has been redesigned, renamed, or renumbered from one of the firearms listed in subdivision (a), (b), or (c) of Sect 12276, or which is manufactured or sold by another company under a licensing agreement to manufacture or sell one of the firearms listed in subdivision (a), (b), or (c) of Section 12276, regardless of the company of production or distribution, or the country of origin.
(b) Upon issuance of a declaration of temporary suspension by the superior court and after the Atty General has completed the notice requirements of subdivisions (c) and (d), the provisions of subdivision (a) of Sect 12280 shall apply with respect to those weapons.
(c) Upon declaration of temporary suspension, the Atty General shall immediately notify all police, sheriffs, district attys, and those requesting notice pursuant to subdivision (d), shall notify industry and association publications for those who manufacture, sell, or use firearms, and shall publish notice in not less than 10 newspapers of general circulation in geographically diverse sections of the state of the fact that the declaration has been issued.
(d) The Atty General shall maintain a list of any persons who request to receive notice of any declaration of temporary suspension and shall furnish notice under subdivision (c) to all these persons immediately upon a superior court declaration.... {snip}...
(e) After issuing a declaration of temporary suspension under this section, the superior court shall set a date for hearing on a permanent declaration that the weapon is an assault weapon. The hearing shall be set no later than 30 days from the date of issuance of the declaration of temporary suspension. The hearing may be continued for good cause thereafter. Any manufacturer or Calif. distributor {..snip..}
(f) At the hearing, the burden of proof is upon Atty General to show by a preponderance of evidence that the weapon which is the subject of the declaration of temporary suspension is an assault weapon. If the court finds the weapon to be an assault weapon, it shall issue a declaration that it is an assault weapon under Sect 12276. Any party to the matter may appeal the court's decision. A declaration that the weapon is an assault weapon shall remain in effect during the pendency of the appeal unless ordered otherwise by the appellate court.
(g) The Atty General shall prepare a description for identification purposes, including a picture or diagram, of each assault weapon listed in Sect 12276, and any firearm declared to be an assault weapon pursuant to this section, and shall distribute the description to all law enforcement agencies responsible for enforcement of this chapter. Those law enforcement agencies shall make the description available to all agency personnel.
(h) The Atty General shall promulgate a list that specifies all firearms designated as assault weapons in Sect 12276 or declared to be assault weapons pursuant to this section. The Atty General shall file that list with the Secretary of State for publication in the Calif. Code of Regulations. Any declaration that a specified firearm is an assault weapon shall be implemented by the Atty General who, within 90 days, shall promulgate an amended list which shall include the specified firearm declared to be an assault weapon... {snip...}
(i) The Atty General shall adopt those rules and regulations that may be necessary or proper to carry out the purposes and intent of this chapter.
This section sets up process for DOJ/AG allowing temporary declaration of an assault weapon; it also sets up method to get it permanently declared as AW. While burden of proof's on DOJ/AG, given gun similarities and Kasler decision and wording above about "a copy by another manufacturer" or "redesigned, renamed, or renumbered from one of the firearms listed" this would make a court's "walks like a duck, talks like a duck" decision quite easy.
Note the above-cited PC has no mention of AW disposition once it's declared as AW. The last section (i) merely gives DOJ/Firearms its regulatory ability to "do its thing" in this field and establish procedures, standards, etc.
12280.
{snip...}
...
(g) Subdivision (b) [penalties for illegal AW possession] shall not apply to the possession of an assault weapon during the 90-day period immediately after the date it was specified as an assault weapon pursuant to Sect. 12276.5, or during the one-year period after the date it was defined as an assault weapon pursuant to Sec 12276.1, if all of the following are applicable:
(1) The person is eligible under this chapter to register the particular assault weapon.
(2) The person lawfully possessed the particular assault weapon prior to the date it was specified as an assault weapon pursuant to Sect 12276.5, or prior to the date it was defined as an assault weapon pursuant to Sect 12276.1.
(3) The person is otherwise in compliance with this chapter.
Basically says you aren't in violation if you legally own a gun that's subsequently declared as an AW for the 90 days after it's been 'declared' as an AW - as long as you're eligibile to register (no legal disabilities). My brief reading unclear as to when 90 day period starts: at temporary or permanent declaration? - I believe the latter.
Nothing yet's mentioned as to HOW or IF you can register a newly 'declared AW', and how/if you can continue to possess it after 90 day window.
12285. (a)(1) Any person who lawfully possesses an assault weapon, as defined in Sect. 12276, prior to Jun 1 1989, shall register the firearm by Jan 1 1991, and any person who lawfully possessed an assault weapon prior to the date it was specified as an assault weapon pursuant to Sect 12276.5 shall register the firearm within 90 days, with the Dept of Justice pursuant to those procedures that the department may establish. Except as provided in subdivision (a) of Sect. 12280, any person who lawfully possessed an assault weapon prior to the date it was defined as an assault weapon pursuant to Sect 12276.1, and which was not specified as an assault weapon under Sect 12276 or 12276.5, shall register the firearm within one year of the effective date of Sect 12276.1, with the department pursuant to those procedures that the department may establish. The registration shall contain a description of the firearm that identifies it uniquely, including all identification marks, the full name, address, {...snip...} The department may charge a fee for registration of up to twenty dollars ($20) per person... {...snip...}.
{snip}
...
(b)(1) {...big snip...} .... or (B) lawfully possessed a firearm subsequently declared to be an assault weapon pursuant to Section 12276.5, or subsequently defined as an assault weapon pursuant to Sect 12276.1, shall, within 90 days, render the weapon permanently inoperable, sell the weapon to a licensed gun dealer, obtain a permit from the Dept of Justice in the same manner as specified in Article 3 (commencing with Sect 12230) of Chapter 2, or remove the weapon from this state. A person who lawfully possessed a firearm that was subsequently declared to be an assault weapon pursuant to Sect 12276.5 may alternatively register the firearm within 90 days of the declaration issued pursuant to subdivision (f) of Sect 12276.5.
So: if your gun's been recently declared as an AW you've got 90 days to reg it following the DOJ's procedures. Since these are already set up, it'll replay 91 and 2000 AW reg + current 50BMG reg filing formats.
Thus it appears if DOJ adds currently-unlisted AR/AK receivers so they're AWs, as per Harrott mandate, they'll be registerable. New AW additions trigger a 90 day reg period. Once this is over, they're AWs and can have evil features. (However, unsure if these prospective new AWs can be in 50BMG - there's some overlap & differences in AW vs 50BMG laws & dates.)
AR/AK 'series' receivers can merely be 'identified' by DOJ and added to DOJ Roster, thru just their mere regulatory authority with a bit of push by Kasler decision and 'series' terminology. Other listed 'clone' guns whose receivers are currently legal to acquire - like Imbel FAL receivers - seemingly require extended court declaration process to make 'em AWs and may be more work than perceived DOJ budgetary cost/benefit allows.
Bill Wiese
San Jose
My brief 'research' into declaring guns as AWs - from PC 12xxx law pulled from DOJ 'Dangerous Weapons Control Laws' webpage. Underline/bold quoted text mine; a few snips/abbreviatons to save space.
12276.5.
(a) Upon request by the Atty General filed in a verified petition in a superior court of a county with a population of more than 1000000, the superior court shall issue a declaration of temporary suspension of the manufacture, sale, distribution, transportation, or importation into the state, or the giving or lending of a firearm alleged to be an assault weapon within the meaning of Sect 12276 because the firearm is either of the following:
(1) Another model by the same mfgr or a copy by another mfgr of an assault weapon listed in subdivision (a), (b), or (c) of Sect 12276 which is identical to one of the assault weapons listed in those subdivisions except for slight modifications or enhancements including, but not limited to {cosmetic features/calibers/bbl length...}. The court shall strictly construe this paragraph so that a firearm which is merely similar in appearance but not a prototype or copy cannot be found to be within the meaning of this paragraph.
(2) A firearm first manufactured or sold to the general public in California after Jun 1 1989, which has been redesigned, renamed, or renumbered from one of the firearms listed in subdivision (a), (b), or (c) of Sect 12276, or which is manufactured or sold by another company under a licensing agreement to manufacture or sell one of the firearms listed in subdivision (a), (b), or (c) of Section 12276, regardless of the company of production or distribution, or the country of origin.
(b) Upon issuance of a declaration of temporary suspension by the superior court and after the Atty General has completed the notice requirements of subdivisions (c) and (d), the provisions of subdivision (a) of Sect 12280 shall apply with respect to those weapons.
(c) Upon declaration of temporary suspension, the Atty General shall immediately notify all police, sheriffs, district attys, and those requesting notice pursuant to subdivision (d), shall notify industry and association publications for those who manufacture, sell, or use firearms, and shall publish notice in not less than 10 newspapers of general circulation in geographically diverse sections of the state of the fact that the declaration has been issued.
(d) The Atty General shall maintain a list of any persons who request to receive notice of any declaration of temporary suspension and shall furnish notice under subdivision (c) to all these persons immediately upon a superior court declaration.... {snip}...
(e) After issuing a declaration of temporary suspension under this section, the superior court shall set a date for hearing on a permanent declaration that the weapon is an assault weapon. The hearing shall be set no later than 30 days from the date of issuance of the declaration of temporary suspension. The hearing may be continued for good cause thereafter. Any manufacturer or Calif. distributor {..snip..}
(f) At the hearing, the burden of proof is upon Atty General to show by a preponderance of evidence that the weapon which is the subject of the declaration of temporary suspension is an assault weapon. If the court finds the weapon to be an assault weapon, it shall issue a declaration that it is an assault weapon under Sect 12276. Any party to the matter may appeal the court's decision. A declaration that the weapon is an assault weapon shall remain in effect during the pendency of the appeal unless ordered otherwise by the appellate court.
(g) The Atty General shall prepare a description for identification purposes, including a picture or diagram, of each assault weapon listed in Sect 12276, and any firearm declared to be an assault weapon pursuant to this section, and shall distribute the description to all law enforcement agencies responsible for enforcement of this chapter. Those law enforcement agencies shall make the description available to all agency personnel.
(h) The Atty General shall promulgate a list that specifies all firearms designated as assault weapons in Sect 12276 or declared to be assault weapons pursuant to this section. The Atty General shall file that list with the Secretary of State for publication in the Calif. Code of Regulations. Any declaration that a specified firearm is an assault weapon shall be implemented by the Atty General who, within 90 days, shall promulgate an amended list which shall include the specified firearm declared to be an assault weapon... {snip...}
(i) The Atty General shall adopt those rules and regulations that may be necessary or proper to carry out the purposes and intent of this chapter.
This section sets up process for DOJ/AG allowing temporary declaration of an assault weapon; it also sets up method to get it permanently declared as AW. While burden of proof's on DOJ/AG, given gun similarities and Kasler decision and wording above about "a copy by another manufacturer" or "redesigned, renamed, or renumbered from one of the firearms listed" this would make a court's "walks like a duck, talks like a duck" decision quite easy.
Note the above-cited PC has no mention of AW disposition once it's declared as AW. The last section (i) merely gives DOJ/Firearms its regulatory ability to "do its thing" in this field and establish procedures, standards, etc.
12280.
{snip...}
...
(g) Subdivision (b) [penalties for illegal AW possession] shall not apply to the possession of an assault weapon during the 90-day period immediately after the date it was specified as an assault weapon pursuant to Sect. 12276.5, or during the one-year period after the date it was defined as an assault weapon pursuant to Sec 12276.1, if all of the following are applicable:
(1) The person is eligible under this chapter to register the particular assault weapon.
(2) The person lawfully possessed the particular assault weapon prior to the date it was specified as an assault weapon pursuant to Sect 12276.5, or prior to the date it was defined as an assault weapon pursuant to Sect 12276.1.
(3) The person is otherwise in compliance with this chapter.
Basically says you aren't in violation if you legally own a gun that's subsequently declared as an AW for the 90 days after it's been 'declared' as an AW - as long as you're eligibile to register (no legal disabilities). My brief reading unclear as to when 90 day period starts: at temporary or permanent declaration? - I believe the latter.
Nothing yet's mentioned as to HOW or IF you can register a newly 'declared AW', and how/if you can continue to possess it after 90 day window.
12285. (a)(1) Any person who lawfully possesses an assault weapon, as defined in Sect. 12276, prior to Jun 1 1989, shall register the firearm by Jan 1 1991, and any person who lawfully possessed an assault weapon prior to the date it was specified as an assault weapon pursuant to Sect 12276.5 shall register the firearm within 90 days, with the Dept of Justice pursuant to those procedures that the department may establish. Except as provided in subdivision (a) of Sect. 12280, any person who lawfully possessed an assault weapon prior to the date it was defined as an assault weapon pursuant to Sect 12276.1, and which was not specified as an assault weapon under Sect 12276 or 12276.5, shall register the firearm within one year of the effective date of Sect 12276.1, with the department pursuant to those procedures that the department may establish. The registration shall contain a description of the firearm that identifies it uniquely, including all identification marks, the full name, address, {...snip...} The department may charge a fee for registration of up to twenty dollars ($20) per person... {...snip...}.
{snip}
...
(b)(1) {...big snip...} .... or (B) lawfully possessed a firearm subsequently declared to be an assault weapon pursuant to Section 12276.5, or subsequently defined as an assault weapon pursuant to Sect 12276.1, shall, within 90 days, render the weapon permanently inoperable, sell the weapon to a licensed gun dealer, obtain a permit from the Dept of Justice in the same manner as specified in Article 3 (commencing with Sect 12230) of Chapter 2, or remove the weapon from this state. A person who lawfully possessed a firearm that was subsequently declared to be an assault weapon pursuant to Sect 12276.5 may alternatively register the firearm within 90 days of the declaration issued pursuant to subdivision (f) of Sect 12276.5.
So: if your gun's been recently declared as an AW you've got 90 days to reg it following the DOJ's procedures. Since these are already set up, it'll replay 91 and 2000 AW reg + current 50BMG reg filing formats.
Thus it appears if DOJ adds currently-unlisted AR/AK receivers so they're AWs, as per Harrott mandate, they'll be registerable. New AW additions trigger a 90 day reg period. Once this is over, they're AWs and can have evil features. (However, unsure if these prospective new AWs can be in 50BMG - there's some overlap & differences in AW vs 50BMG laws & dates.)
AR/AK 'series' receivers can merely be 'identified' by DOJ and added to DOJ Roster, thru just their mere regulatory authority with a bit of push by Kasler decision and 'series' terminology. Other listed 'clone' guns whose receivers are currently legal to acquire - like Imbel FAL receivers - seemingly require extended court declaration process to make 'em AWs and may be more work than perceived DOJ budgetary cost/benefit allows.
Bill Wiese
San Jose