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hoffmang
08-12-2006, 10:11 AM
We're close enough to D-Day that I think its ok to speculate on the likely responses to this round of comments on the Proposed Rulemaking.

Let me set up the strategic situation by pointing out something wise a buddy (quark on here) stated to me in personal conversation. The DOJ's number 1 concern is to not list so as to not create a new registration period.

After closely analyzing the law and the proposed Rulemaking, DOJ has three real choices.

1. Withdraw the Proposed Rulemaking and do nothing else.

2. Withdraw the Proposed Rulemaking and use their 12276.5 powers to list.

3. Add a whole long list of specific exceptions to the definition of permanently altered and speciously claim that it doesn't open a registration period.

As an important side note, the more I look at this, the less I think they have a statutory leg to stand on to define new language into the statute. Put more simply, if the legislature had meant to limit the scope of SB-23 by requiring permanent alteration, they would have said so just like they did about high capacity mags in the same bill.

I guess the best DOJ can do here is push through a fatally flawed new definition and leave the onus on us to sue. I'm with quark that #2 isn't happening...

-G

bwiese
08-12-2006, 11:45 AM
Regulatory agencies have broad powers to do things like create & update definitions, and create administrative procedures (the state lets DOJ set up their own AW registration procedures, for example, as long as basic guideliines in law are set up)

Anything that promotes clarity in the field and was left 'loose' by statute is fair game.

The DOJ was able to write the original 978.20 definitions attempting to clarify 12276.1. They are still able to change or add definitions. This type of action is clearly legal and a challenge to this will fall right out of court. They DO have a right to do definitions, etc. Only if the definition creates a side effect that has 'unintended consequences' or side effects that are not supported by statute is there room for challenge...

I disagree with your letter's assertion (I may have misread it though) that 12276.5(i) refers only to that section - it in fact applies to the whole chapter in the PC (2.3, which ranges from 12275 to 12290):

12276.5(i) The Attorney General shall adopt those rules and regulations that may be necessary or proper to carry out the purposes and intent of this chapter.

In the case of the Category 4 memo that we shot down, they clearly tried to have a new shade, flavor, variant, what-have-you: a registered assault weapon that had further restrictions, along with post-arrest invalidation of AW registration. It was (to me) pretty laughable.

The other issue is that 12276.1(d)(2) defines, on a statutory basis:

12276.1(d)(2) "Capacity to accept more than 10 rounds" shall mean capable of accommodating more than 10 rounds, but shall not be construed to include a feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds.

....note that this refers to the feeding device and not the _rifle_. So if they do a regulatory definition of 'capacity to accept' it will differ from 'capacity to accept more than 10 rounds' definition, which is just crazy.


In our case here, our stand must deal with possible side effects (actually SKS may or may not be touched, that assertion could be shaky, but it is a worry: I will be looking into it the next day or two, have been otherwise busy), the fact their redefinition effort contravenes already-approved rifle(s) w/"fixed" magazines, and that the redefinition causes existing legally-owned, legally-acquired rifles to transition into AW status - thus triggering a registration period.


Strategywise? DOJ is doing CYA during run-up to election. A little bird told me that a certain Deputy AG named ********** is in a fair amount of hot water for letting this get out of control (there might even have been a pro-list sentiment in some quarters there).

hoffmang
08-12-2006, 1:06 PM
Bill,

I'm not really expecting to win on the comment in general about the Department's ability to modify the 2000 rulemaking. I made a bad assumption about how broad "This Chapter" should be read.

My point about 12276.1(d)(2) is that clearly the legislature knew how to write "permanently altered" and chose not to in the line relevant to rifles. Adding permanently altered to the definition of the rifle by Rulemaking instead of recognizing that the Legislature didn't say that means that DOJ has no statutory support for permanently altered.

Where I see suit is around two issues. Issue one is that the Department can't use the Rulemaking process to create new statute that wasn't put there by the legislature. The second issue is that if they do succeed in making currently legal rifles regulated, I doubt they'll open the registration period without extra pressure.

Ford8N
08-12-2006, 9:19 PM
A little bird told me that a certain Deputy AG named ************is in a fair amount of hot water for letting this get out of control (there might even have been a pro-list sentiment in some quarters there).



She and the DOJ can get it back in control by reopening the AW list. :p

M. Sage
08-13-2006, 9:13 AM
She and the DOJ can get it back in control by reopening the AW list. :p

Lol, I told my wife what I'm doing if that happens. :D She wasn't too pleased, but I think she saw my point.

wilit
08-13-2006, 11:51 AM
If the DOJ does move forward with the "capacity to accept" definition, what will happen with all those people who legally purchased DOJ approved Vulcan epoxied lowers? Will they be turned into instant felons?

C.G.
08-13-2006, 12:02 PM
If the DOJ does move forward with the "capacity to accept" definition, what will happen with all those people who legally purchased DOJ approved Vulcan epoxied lowers? Will they be turned into instant felons?

Precisely what I questioned in my letter to the DOJ.

PIRATE14
08-13-2006, 12:42 PM
If the DOJ does move forward with the "capacity to accept" definition, what will happen with all those people who legally purchased DOJ approved Vulcan epoxied lowers? Will they be turned into instant felons?


So whoever has a Vulcan CAL DOJ lower LMK.....we might need one of those for future case reference along w/ a DOJ letter.

Right now everyone is legal w/ repect to the laws, fixed mag or gripless.

W/ the new reg fixed mags might be illegal.....if it's fixed there is no capacilty to accept......there are lots of rifles that fall into this category.

As usual this stuff has been goin on since 89 and this war is far from being over w/ new doj reg...........

PanzerAce
08-13-2006, 5:50 PM
It seems to me that with all of the memos/actions by DOJ employees that they seem to have painted themselves into a corner. There is not (to me, atleast) any way for them to get out of this situation legally that would save face. At this point, I think that the best that they could hope for would be to, in a way, cut a deal with us gun owners. They agree to list and stop publishing BS memos as long as we agree not to talk to the press in huge numbers about this.

Pryde
08-13-2006, 11:29 PM
At this point, I think that the best that they could hope for would be to, in a way, cut a deal with us gun owners. They agree to list and stop publishing BS memos as long as we agree not to talk to the press in huge numbers about this.

Honestly, I don't think the DOJ gives a rat's anus about what we say to the press. Nor do the press really care what we have to say about the OLLs, its not newsworthy. Don't kid yourself into thinking you have some sort of leverage against the DOJ, the only advantage we have is the fact that the DOJ seems to be screwing themselves over worse than we can.

thedrickel
08-14-2006, 10:51 AM
I still don't understand why they didn't just list back in December or whatever. . . I would have listed everything under the sun when people started sending in those letters about individual makes and models. What a bunch of morons. . .they could have limited OLLs to a few dozen or hundred maybe, now they're up sh*t creek.

mailman
08-14-2006, 12:22 PM
If the DOJ does move forward with the "capacity to accept" definition, what will happen with all those people who legally purchased DOJ approved Vulcan epoxied lowers? Will they be turned into instant felons?

This is the best statement to prove their hypocritical ways…….

CALI-gula
08-14-2006, 2:00 PM
If the DOJ does move forward with the "capacity to accept" definition, what will happen with all those people who legally purchased DOJ approved Vulcan epoxied lowers? Will they be turned into instant felons?

While this mostly seems to center on the issue of the fixed-mag kits, we should look back at the situation with Robinson Armament's CA version M96 over the past 4 years.

Capacity to accept a pistol grip, and capacity to accept a magazine was brought up with this particular gun, confiscations DID occur based on those aspects, and then the DOJ had to give them all back to their owners, as through their own admission, it did NOT fit the definition of an assault weapon.

Could they change these definitions at any time? I guess. But repeated prior DOJ findings AND ACTIONS like this since 1999, and their allowance for guns like the SKS, Barrett's 82A1-CA model with its swing-down magazine (legal in CA before AB50) and pump-action guns where the gas-tube could have the capacity to be reinstalled, should all be a repeated touchstone for arguing this issue.

Not necessarily the specifics of these guns should be cited, but the very definitions of what CA previously said was an assault weapon and what is not, what has been OK and suddenly is causing them grief.

I charge that the grief they suffer is their out-right ban backfired, they created a features ban hoping it would act as an outright ban, and now that this has backfired, it reveals all they have been trying to do is ban guns - the features baloney was a ruse. They thought it would work in whole, to ban certain guns by a class, and it has not; they must accept the law on their own terms and "intentions" - they banned certain features because they sold SB23 to the unknowing masses that the function of those features were a threat - remove the function, and "the threat" is gone! Therefore, fix the magazine so it can't be removed by hand - and "the threat" is gone!

AB50 banned by caliber, an new front for the Anti-2nd Amendment crowd. Now they want to ban by redefining "acceptability" of features and massaging their own previously accepted laws?

If the magazine is not readily detachable by hand, is fixed in place without removal by use of a tool, then it is not a detachable magazine.

Otherwise, they might simply add SKSs, Browning BAR's, Ruger M77's, and Garands, Ruger Mini-14's and Kel-Tec's SU-16s for capacity to accept pistol grips as assault weapons next! Will Broomhandle Mauser C96's be banned next because you can drop the floor-plate without a tool and could make an magazine for insert?

History and the previously written laws stated we could have these, now the DOJ is stating otherwise? And redefining terms of "capacity to ........." ????

http://www.atfabuse.com/leantigun-1.html

"In seizing the M96 rifles, the DOJ Firearms Division agents mistakenly believed that the model M96 was illegal because of one statutory definition of an "assault weapon" includes any semi-automatic centerfire rifle with the capacity to accept a detachable magazine and a conspicuously protruding pistol grip. Although the M96 does not have a pistol grip, the agents wrongfully believed that the "capacity to accept" provision applies to both the detachable magazine and the pistol grip. The agents believed the M96 was an "assault weapon" because it has the "capacity to accept" a pistol grip - as many guns do."


And from the Robinson Armament website, the DOJ letter describing the same. You might even still be able to go on the DOJ website and find their own apology acknowledging the blunder.


http://www.robarm.com/55404_NRA_%20%...20re%20M96.pdf


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