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View Full Version : What happens to my lowers?


rix
04-22-2006, 11:42 PM
If I order an off-list lower on 4/27 and my FFL does not receive it until 5/2 will he send my order back? ...Assuming they list on 5/1.

ghostrider4evr
04-22-2006, 11:47 PM
Is this assuming you've DROS'd the lowers already?

leelaw
04-22-2006, 11:54 PM
If you DROSed it, it is yours.. UNLESS yo DROSed it before it entered the state (in transit) in which case you are SOL.

EBWhite
04-23-2006, 1:00 AM
I believe if you have started the dros on the lower, you have 30 days to get it from that first date. If you have ordered the lower and dros'd it prior to the listing you should be okay. However, this is how i have understood it to be, wait for more info as i might not be 100% correct on it.

rix
04-23-2006, 2:28 AM
I DROS'ed on 4/10 and picked up a lower on 4/20. I get paid on 4/27 and was wondering if I could squeeze one more in.... assuming they list on 5/1.

tenpercentfirearms
04-23-2006, 7:58 AM
I would not assume they list on 5/1. The CCR comes out on Fridays. I doubt they are going to change their procedures for this especially since .50 BMG registration ends the night before. Also, it would help to solve these issues if the DOJ states their final intent to list in 7 days and that all DROS must be complete by such and such date and time in order to avoid touchy situations like this.

To answer your original question, in theory unless the lower is in your dealers possession, then they can't import it into the state once it gets listed. Still you run into the problems of what entails possession? Does payment and shipment mean possession? Does having it in your hands mean possession? Again, this is why a public warning period of a week or so makes sense to make this easier for the DOJ to do it.

I think the only reason I would tell my customers to hurry by May 1st is because I want to make them hurry and rush so I can sell more lowers. Otherwise, you might expect the hammer to drop in May, but most likely on a Friday, not Monday. Even then, I heard two weeks back in December, so I just really don't care anymore. This whole when will they list hype died for me about two months ago.

SFV_Dealer
04-23-2006, 10:16 PM
Amen! Thanks TenPercent! Go Bruins!

artherd
04-24-2006, 12:15 AM
Still you run into the problems of what entails possession? Does payment and shipment mean possession? Does having it in your hands mean possession? Again, this is why a public warning period of a week or so makes sense to make this easier for the DOJ to do it.


It can vary on a tax issue, some businesses are taxed on a basis of invoicing, some are taxed on delivery. You may elect which basis your company files under.

stator
04-24-2006, 7:24 AM
The lower has to be logged into the FFL's logbook prior to midnight on the day of the CCR being published, or the court ordered injunction. Same for DROS.

The notice register is published every friday, but that is not the CCR itself but proposed changes to the CCR. The CA Supreme Court never addressed the APA requirements for naming lowers. So, it is far to assume that the APA still applies if the AG does not go the court injunction route. APA requires 45 day review and hearings but not for emergency regulations. The APA requires specific lawful instructions in order to bypass. The AWB legislation only has the court injunction process.

I still believe that the most-likely path the AG will take is a Superior Court injunction to get AW's named including AK/ARs. It is self-serving as it is a cleaner route and comes with an immediate injunction to ban just-named AW's. It also funnels countersuits to that court room as well. This, of course, works well if the AG gets a favorable judge. No reason why not because the AG can legally shop around in most counties per the law.

bwiese
04-24-2006, 8:28 AM
The notice register is published every friday, but that is not the CCR itself but proposed changes to the CCR. The CA Supreme Court never addressed the APA requirements for naming lowers. So, it is far to assume that the APA still applies if the AG does not go the court injunction route. APA requires 45 day review and hearings but not for emergency regulations. The APA requires specific lawful instructions in order to bypass. The AWB legislation only has the court injunction process.

We keep going in circles on this, stator. I've explained this 3 or 4 times in response to your prior similar posts over the past couple of months...

The APA (sec 11340 etc) does NOT apply to assault weapon list updates. It is SPECIFICALLY EXEMPTED from this in PC12275(h), with underlining supplied by me:


12275(h) ..... Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section.


No typical regulatory/admin law 45-day review periods or public comment periods from "stakeholders", no small business impact statements, etc.

Boom, and it's complete within days.


I still believe that the most-likely path the AG will take is a Superior Court injunction to get AW's named including AK/ARs. It is self-serving as it is a cleaner route and comes with an immediate injunction to ban just-named AW's.

I've just shown you that the CCR can be updated near-immediately for AR/AK guns (well, within days).

It would be senseless for AG/DOJ to ever go to court to seek authority that it (DOJ) already has to act directly and without external intervention. You don't ask for permission to do something you already have permission to do so, so it would not be cleaner. In fact I think a court might even be puzzled why the DOJ would do this (not that they would).

I would (eventually, but probaby after any addressing of AR/AK issues given relative size of markets for varying rifle platforms) expect them to perhaps "finish the job" and add new items to the list of nonAR/nonAK guns. They would have to indeed use the superior court add-on petition method, but they might embellish it by asking for some "series" to be declared/banned based on an exemplar and the other family members being 'copies and duplicates'. By getting new 'series' declared - say, "FAL series", "HK-9x series", "Uzi series" etc. this then lets DOJ add series members to these new series directly. That is, the original "Kasler list" would have more 'series' than ARs/AKs.

stator
04-24-2006, 7:02 PM
We keep going in circles on this, stator. I've explained this 3 or 4 times in response to your prior similar posts over the past couple of months...



And I guess we will until I sucessfully educate you on this.... read below.


12275(h) ..... Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. [u]Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section.

The copy of the Firearms Penal Code for section 12275 ends with paragraph b. There is no paragraph h shown in that section, but your PC quote is actually from section 12276.5. This section authorizes the AG to amend the AW list via Superior Courts.

Read the last sentence on your qoute...."shall not apply to any list of assualt weapons promulgated pursuant to this section". "This" section is 12276.5 and not section 12276. This was the intent of the legislature and the governor to satisfy the case law of APA. The CA Supreme Court has upheld a strict view of APA whereas all exemptions must specifically list an exempted process (which is 12276.5).


Boom, and it's complete within days.

Absolutely, but only through a Superior Court. Without the court injunction, the AG must follow either the 10-day or 45-day review process. The 10-day is for emergency regulations and I do not know if it is applicable here.


I've just shown you that the CCR can be updated near-immediately for AR/AK guns (well, within days).

Well, no, you sorta goofed. You had tried to show that all named AWs regardless of being a series issue (AK/AR) or not, is not applicable to the APA without a court injunction. Section 12276 is for series and non-series alike. If you believe (h) is for section 12276 and not 12276.5 where it is found, then it is applicable to all AWs including newly named, non-series. This would give the power to the AG to ban any firearm as he/she see fit without any checks/balances whatsoever.

Also, I believe you have posted earlier a different interpretation where non-series is subjected to the APA.


It would be senseless for AG/DOJ to ever go to court to seek authority that it (DOJ) already has to act directly and without external intervention.

Well, since it is not clear whether you believe naming non-series AW is subjected to the APA or not, I do not know your reference of senseless. To me, it is clear that the court injunction route is best particularly when it appears that non-series AWs naming will be forthcoming as well.

bwiese
04-24-2006, 8:55 PM
The copy of the Firearms Penal Code for section 12275 ends with paragraph b. There is no paragraph h shown in that section, but your PC quote is actually from section 12276.5. This section authorizes the AG to amend the AW list via Superior Courts.

My bad on the quoted PC #, it was result of fast typing, yes it's 12276.5(h).


Read the last sentence on your qoute...."shall not apply to any list of assualt weapons promulgated pursuant to this section". "This" section is 12276.5 and not section 12276. This was the intent of the legislature and the governor to satisfy the case law of APA. The CA Supreme Court has upheld a strict view of APA whereas all exemptions must specifically list an exempted process (which is 12276.5).

Let's do this again, full quote of 12276.5(h):

12276.5(h) The Attorney General shall promulgate a list that specifies all firearms designated as assault weapons in Section 12276 or declared to be assault weapons pursuant to this section. The Attorney General shall file that list with the Secretary of State for publication in the California Code of Regulations. Any declaration that a specified firearm is an assault weapon shall be implemented by the Attorney General who, within 90 days, shall promulgate an amended list which shall include the specified firearm declared to be an assault weapon. The Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section.

Banning of AR15 had already been a fait accompli since 1989. It had been declared to be an AW via original legislation. Further members are identified[/i[] as the 'AR15 and series' has already been declared, and Harrott just requires specific listing.


Absolutely, but only through a Superior Court. Without the court injunction, the AG must follow either the 10-day or 45-day review process. The 10-day is for emergency regulations and I do not know if it is applicable here.


Nope, sorry that is only for declared assault weapons via the Superior Court add-on process. Off-list lowers are simply just not-yet identified members of an already-declared series. No court intervention is needed for AR/AK list update. APA stuff again does not apply: APA really doesn't apply to any AW list update!!!

In addition a DOJ letter posted somewhere on Calgunlaws, signed by Alison M. and addressed to Chuck Michel indicates there's a 10 day span from when they "list" to the formal adoption in CCR 979.11 -which indicates a lack of comment period, etc.

Chuck Michel's partner, Jason Davis at Trutanich, Michel wrote a document, about a month ago, How The DOJ Expands Assault Weapons Laws and headed as HOW CAN THE LIST OF FIREARMS LEGALLY DESIGNATED AS "ASSAULT WEAPON" BE EXPANDED? It's at http://calgunlaws.com/Docs/ASSAULT%20WEAPONS/Articles/76373_1_doj_expands.pdf

This document agrees with what I say. Underlining/italics are mine. I've left out Harrott quotes for brevity.


2. HOW CAN THE DOJ ADD FIREARMS TO THE "AK 47 SERIES" AND "COLT
AR-15 SERIES" LISTS?

The DOJ has already designated a number of firearms as “series guns” in the California Code of Regulations. Penal Code section 12276 does not specifically identify all of the different "AK Series" and "Colt AR-15" series rifles that are “assault weapons.” To add firearms to the "AK Series" or "Colt AR-15 Series" lists the Attorney General forwards the list to the Secretary of State for publication in the California Code of Regulations pursuant to Penal Code Section 12276.5 (h), which states:

[I]<<PC 12276.5 quote removed for brevity - see above>>

One might think that to be designated as “assault weapons” the specific AR and AK “series” makes and models must be added through the public hearing and oversight provisions of Section 12275.5 (discussed in Question 3 below). Not so. Harrott v. County of Kings (2001) 25 Cal.4th 1138 held otherwise, stating that:

<<Harrott quote excised for brevity>>>

The DOJ’s authority to unilaterally add AR and AK “series”firearms to the "assault weapons" lists, though not express, was found by the California Supreme Court to be intended in the legislative history of the Act, and pursuant to Section 12276.5 (a)(1) The court held:

<<another Harrott quote excised for brevity>>>

In essence, the Harrott ruling holds that it is better that the "assault weapon" expansion laws be used to expressly designate those series guns that are “assault weapons” so as to place ordinary citizens on notice that a firearm is deemed to be an "assault weapon" by the Department of Justice, rather than to the leave the public guessing whether their firearm is a “series” type
“assault weapon:”

<<another Harrott quote excised for brevity>>>



Thus APA 11340 matters do not apply to AR/AK list updates. They of course also do not apply to court add-ons of nonAR/nonAK guns. There are substitute 'public oversight' provisions spread through PC 12276.5.

Now, if DOJ decided to change the definition of pistol grip in CCR 978.20(b), that WOULD require a notification process, public comment period and the like since that's basic regulatory law and no relevant area in the PC 'shields' it from APA/sec 11340 etc.



Well, no, you sorta goofed. You had tried to show that all named AWs regardless of being a series issue (AK/AR) or not, is not applicable to the APA without a court injunction.

There are only 3 ways new AWs happen in CA:
AR/AK CCR 979.11 list updated directly by DOJ;
12276.5 add-on petition/declaration in certain Superior Courts;
direct legislative add-on of new guns (i.e., new statutory law);


Harrott requires listing for clarity and due process. Even if a court declares something (nonAR/nonAK) to be an AW it's gonna have to have forma notice, hit the CCR, etc. to be officially banned.

There are mandated announcements to mfgrs and importers, etc. In fact, there's some "substitute APA stuff" - that is, public oversight provisions - contained in PC 12276.5. Jason Davis adds:


5. CAN ANYBODY PARTICIPATE IF THERE IS A HEARING TO DETERMINE
WHETHER A FIREARM IS AN "ASSAULT WEAPON?"

No. Unfortunately, intervention (joining as a party) in the court action is limited to manufacturers or California distributors of the alleged "assault weapon." But, manufacturers, sellers, and owners of any firearm alleged to be an "assault weapon" by the California Department of Justice may join the action as a "friend of the court." Section 12276.5(d) states, in part:


Any manufacturer or California distributor of the weapon which is the subject of the temporary suspension order has the right, within 20 days of notification of the issuance of the order, to intervene in the action. Any manufacturer or California distributor who fails to timely exercise its right of intervention, or any other person who manufactures, sells, or owns the assault weapon may, in the court's discretion, thereafter join the action as amicus curiae.




Section 12276 is for series and non-series alike. If you believe (h) is for section 12276 and not 12276.5 where it is found, then it is applicable to all AWs including newly named, non-series. This would give the power to the AG to ban any firearm as he/she see fit without any checks/balances whatsoever.

Paragraph (h) is for both. APA applies to neither. And The AG cannot ban 'any' firearm, he can only petition to have firearms banned via add-on superior court procedure. The only thing he can do directly is add further series members.

Also, I believe you have posted earlier a different interpretation where non-series is subjected to the APA.

I think that was someone else when all this hubbub started in Nov/Dec - probably user delloro, when we were speculating about listing mechanics. I may have parrotted that until, as it's generally logical, until I had a chance to read in detail.

Well, since it is not clear whether you believe naming non-series AW is subjected to the APA or not,

That wasn't my original subject, but no, non-series (nonAR/nonAK) guns being declared as AWs thru petition/add-on procedure in court are NOT subject to APA. They ARE subject to the promulgation requirements spread about in 12276.5 though.

I do not know your reference of senseless. To me, it is clear that the court injunction route is best particularly when it appears that non-series AWs naming will be forthcoming as well.

I believe while effort will be expended in both fields, the AR/AK arena appears most "pressing" given sales volumes, aftermarket parts supply and ease of assembly - esp of ARs. In fact, I'd bet there's a 20:1 AR:AK ratio for off-list lowers since Dec. 2005 as AKs take more work. I'd also bet there's maybe only maybe 2000 -if that! - of nonFN FAL receivers that have been sold since 2000 in CA.

Again, I do believe the DOJ could create new series thru court add-on peitition, and then add new series members to that series.

linuxgunner
04-24-2006, 9:06 PM
Correct me if I'm wrong, but once they list these receivers, manufacturers would only need to change the name of the receiver and then it's a brand-new non-listed off-list receiver and the whole fiasco repeats itself?

bwiese
04-24-2006, 9:10 PM
Correct me if I'm wrong, but once they list these receivers, manufacturers would only need to change the name of the receiver and then it's a brand-new non-listed off-list receiver and the whole fiasco repeats itself?

Yes, unless/until legislation hits.

But I think if the DOJ does things right and does a good 95% job up front, they can update the list faster than mfgrs can change their rollmarks and ship them into CA. So the 2nd pass of the name game will be pretty

And folks doing one-off custom models not available for general sale may be circumventing Harrott protections and getting themselves in trouble. (This is similar to why I warn against homebuilds from 80% forgings.) Any lower you get should be in general trade circulation inside/outside CA.

kantstudien
04-24-2006, 9:53 PM
Well, I am glad you guys are sparring about this, because I keep wondering "WTF are you guys talking about?"