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View Full Version : New Target of Opportunity (unconstitutionally vague): 12316 PC


GrizzlyGuy
01-18-2011, 2:30 PM
Among other things, 12316 (http://law.onecle.com/california/penal/12316.html) makes it a crime to sell "handgun ammunition" to lawful citizens who are old enough to vote and fight in our country's wars (18 years old), but not yet 21 years old:

Any person, corporation, or dealer who does either of the following shall be punished...

(B) Sells any ammunition or reloaded ammunition designed and
intended for use in a handgun to a person under 21 years of age. As
used in this subparagraph, "ammunition" means handgun ammunition as
defined in subdivision (a) of Section 12323. Where ammunition or
reloaded ammunition may be used in both a rifle and a handgun, it may
be sold to a person who is at least 18 years of age, but less than
21 years of age, if the vendor reasonably believes that the
ammunition is being acquired for use in a rifle and not a handgun.

"Handgun ammunition" is defined the same as it was in AB 962 (in 12323 (http://law.onecle.com/california/penal/12323.html)):

(a) "Handgun ammunition" means ammunition principally for use in
pistols, revolvers, and other firearms capable of being concealed
upon the person, as defined in subdivision (a) of Section 12001,
notwithstanding that the ammunition may also be used in some rifles.

That definition was ruled to be unconstitutionally vague in AB962 (http://www.calguns.net/calgunforum/showthread.php?t=385930), so the court's same logic should apply here.

If all of 12316 could be struck down (rather than just that part), there are some other benefits:

1) It would again be legal to sell ammo to minors who have the written consent of his or her parent or legal guardian to possess ammo (the parental consent requirement is in 12101 (b) (http://law.onecle.com/california/penal/12101.html)). I used to ride my bike to the hardware store to buy ammo when I was 8 years old, without a permission slip, but this improvement is better than nothing.

2) It would again be legal to LUCC a potentially-functional gun onto the grounds of a K-12 school. A careful read of 626.9 shows that you can do this now (http://www.calguns.net/calgunforum/showpost.php?p=3886159&postcount=27), but you can't bring ammo thanks to 12316.

Knocking out at least part of 12316 would now seem to be a slam-dunk given today's ruling regarding AB 962. :)

ElvenSoul
01-18-2011, 2:31 PM
We can hope

Librarian
01-18-2011, 2:51 PM
Among other things, 12316 (http://law.onecle.com/california/penal/12316.html) makes it a crime to sell "handgun ammunition" to lawful citizens who are old enough to vote and fight in our country's wars (18 years old), but not yet 21 years old:



"Handgun ammunition" is defined the same as it was in AB 962 (in 12323 (http://law.onecle.com/california/penal/12323.html)):



That definition was ruled to be unconstitutionally vague in AB962 (http://www.calguns.net/calgunforum/showthread.php?t=385930), so the court's same logic should apply here.

If all of 12316 could be struck down (rather than just that part), there are some other benefits:

1) It would again be legal to sell ammo to minors who have the written consent of his or her parent or legal guardian to possess ammo (the parental consent requirement is in 12101 (b) (http://law.onecle.com/california/penal/12101.html)). I used to ride my bike to the hardware store to buy ammo when I was 8 years old, without a permission slip, but this improvement is better than nothing.

2) It would again be legal to LUCC a potentially-functional gun onto the grounds of a K-12 school. A careful read of 626.9 shows that you can do this now (http://www.calguns.net/calgunforum/showpost.php?p=3886159&postcount=27), but you can't bring ammo thanks to 12316.

Knocking out at least part of 12316 would now seem to be a slam-dunk given today's ruling regarding AB 962. :)

No, (existing) 12316 and AB962's 12317 use their own definitions of 'ammunition'; that was the one that got people confused about reloading components being 'ammunition' restricted under the no-mail-order provisions. (c) For purposes of this section, "ammunition" shall include, but
not be limited to, any bullet, cartridge, magazine, clip, speed
loader, autoloader, or projectile capable of being fired from a
firearm with deadly consequence. "Ammunition" does not include
blanks.

GrizzlyGuy
01-18-2011, 3:09 PM
No, (existing) 12316 and AB962's 12317 use their own definitions of 'ammunition'; that was the one that got people confused about reloading components being 'ammunition' restricted under the no-mail-order provisions.

OK, but I thought it was the vagueness of this definition in 12318 (http://law.onecle.com/california/penal/12318.html) (that references the same 12323 (http://law.onecle.com/california/penal/12323.html) definition as 12316) that was the problem:

(2) "Handgun ammunition" means handgun ammunition as defined in subdivision (a) of Section 12323, but excluding ammunition designed
and intended to be used in an "antique firearm" as defined in Section
921(a)(16) of Title 18 of the United States Code. Handgun ammunition
does not include blanks.

Or in other words, I thought the vagueness related to our not being able to tell if .22 LR ammo was "handgun ammunition" under AB 962? The "principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person" phrase is in 12323 (http://law.onecle.com/california/penal/12323.html). From Chuck's write-up (http://www.calgunlaws.com/index.php/current-litigation/52-court-decisions/936-nra-crpaf-lawsuit-ivalidates-ab-962.html):

The lawsuit alleged, and the Court agreed, that AB 962 is unconstitutionally vague on its face because it fails to provide sufficient legal notice of what ammunition cartridges are “principally for use in a handgun,” and thus is considered “handgun ammunition” that is regulated under AB 962.

Librarian
01-18-2011, 3:32 PM
12318 refers to the vague definition.

12316 is a piece of code that existed before AB 962, and used the "bullet, cartridge, magazine, clip" etc definition in (b)(2). 12317 was added by AB 962 and also uses the "bullet, cartridge, magazine, clip" etc definition in (c), apparently copied from 12316.

GrizzlyGuy
01-18-2011, 4:06 PM
12318 refers to the vague definition.

12316 is a piece of code that existed before AB 962, and used the "bullet, cartridge, magazine, clip" etc definition in (b)(2). 12317 was added by AB 962 and also uses the "bullet, cartridge, magazine, clip" etc definition in (c), apparently copied from 12316.

Ahhh... I think I see the problem: we are talking about two different things and they are both in 12316 (http://law.onecle.com/california/penal/12316.html). You are pointing to 12316 (b)(2) ("bullet, cartridge, magazine, clip" etc.) and I am talking about 12316 (a)(1)(B), specifically this sentence:

As used in this subparagraph, "ammunition" means handgun ammunition as defined in subdivision (a) of Section 12323.

If you hop over to the referenced 12323 (a) (http://law.onecle.com/california/penal/12323.html), you see the unconstitutionally vague phrase:

"Handgun ammunition" means ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person

Substituting the word "handguns" for "pistols, revolvers, and other firearms capable of being concealed upon the person" gets you this:

"Handgun ammunition" means ammunition principally for use in handguns

That matches what Chuck reports (http://www.calgunlaws.com/index.php/current-litigation/52-court-decisions/936-nra-crpaf-lawsuit-ivalidates-ab-962.html) that the judge decided was constitutionally vague:

The lawsuit alleged, and the Court agreed, that AB 962 is unconstitutionally vague on its face because it fails to provide sufficient legal notice of what ammunition cartridges are “principally for use in a handgun,” and thus is considered “handgun ammunition” that is regulated under AB 962.

AB 962's 12318 (b)(2) references that same definition in 13323 (a):

"Handgun ammunition" means handgun ammunition as defined in subdivision (a) of Section 12323

So... that definition is really the thing that the judge said was unconstitutionally vague.

Since that very same definition is used in by the pre-existing 12316 (a)(1)(B), I claim that 12316 (a)(1)(B) can now be targeted and invalidated as well. If that is invalidated, then non-prohibited people who are between the ages of 18 and 21 will be able to buy any type of ammo, vs. just long gun ammo as the law limits them to now.

Librarian
01-18-2011, 4:29 PM
Aha, indeed!

The (b)(2) definition applies only to (b) - 'this subdivision'.

The reference to 12323 in (a) does indeed look challengeable on today's ruling. Nice catch!

wildhawker
01-18-2011, 4:31 PM
If Parker, on appeal, is affirmed, then I'd think the challenge of the provision in question would soon follow (as well as the unconstitutional 'citizen' language).

WHenderson
01-18-2011, 4:37 PM
This is a good thread. Nice to see.

lorax3
01-18-2011, 5:19 PM
If that is invalidated, then non-prohibited people who are between the ages of 18 and 21 will be able to buy any type of ammo, vs. just long gun ammo as the law limits them to now.

Seems even if 12316 was ruled unconstitutional due to a vague definition, federal law would still kick in unless we also challenged the definition there.

18 USC 922 (b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—

(1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age

Only definition in 921 for "ammunition" is

18 USC 921(a)(17) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.

To note the federal law only applies to licensed persons.

Flopper
01-18-2011, 5:37 PM
You guys are awesome :punk:

bomb_on_bus
01-18-2011, 5:47 PM
"Handgun ammunition" means ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person

I still find that part of the PC funny as other firearms capable of being concealed upon the person could easily go beyond a Handgun and cover just about any rifle out there as well and baised on that I was surprised to see that law make it to the books.

I am glad to see 12323 on the radar and potentially the chopping blocks

GrizzlyGuy
01-18-2011, 5:49 PM
Seems even if 12316 was ruled unconstitutional due to a vague definition, federal law would still kick in unless we also challenged the definition there.



Only definition in 921 for "ammunition" is



To note the federal law only applies to licensed persons.

Rats, I forgot about federal law. :(

As you say, the federal law applies to sales by licensed individuals and our state law applies to sales by anyone. Still, not a lot of value in invalidating our 12316 (a) unless invalidating it takes down the entire section. If the entire section were gone we'd get LUCC-with-ammo onto school grounds, and less risk for someone who becomes prohibited but inadvertently keeps a bit of ammo.

Dude, you really harshed my mellow... :p

wildhawker
01-18-2011, 5:56 PM
Those Fed statutues are going to fall right behind the NRA cases on 18-21 purchase and carry of handguns.

CHS
01-18-2011, 10:16 PM
The fed statute won't fall on the whole "unconstitutionally vague" issue though, since they basically rule by intent.

If you are 18 and want to buy 9mm, and have a rifle to shoot it with, and it's for that rifle, you can be sold 9mm.

Although it's funny that if you are 18 and want to buy 9mm ammo for a 9mm handgun that you legally own, you have to wait till your 21. Yeah, that makes sense.