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View Full Version : AW Ban Challenge on Inheritance / Private party confiscation issue?


tygerpaw
07-07-2012, 8:52 PM
Has anyone ever challenged the CA AWB based on the fact that once the registered owner dies, the rifle must be handed over to the government for disposal? I would think that if this is constitutional, then what is to stop them from a certain year or type of car, from being passed down. Or whatever these geniuses decide to dream up?

I did the search - I found nothing.

Cali-V
07-07-2012, 9:24 PM
The RAW can, theoretically be transfered. But it has to be transported out of state. And if after the death of the owner, the transportation should be done by someone who really knows the relevant laws...

I think the consensus was, if possible, to have the owner to transport the RAW out of state for storage, prior to his or her demise.

There are a few threads...

Quiet
07-07-2012, 11:16 PM
Has anyone ever challenged the CA AWB based on the fact that once the registered owner dies, the rifle must be handed over to the government for disposal?
It's legal because there is not automatic confiscation of it.

When a person with a RAW dies, the executor of the estate is exempt from possessing the AW for up to 90 days, in order to dispose of the RAW.

The RAW can legally be dispose of by the one of the following methods:
1. Permanently disable it (reciever cut per ATF specs).
2. Transfer it to a CA FFL dealer with an assault weapons permit or an out-of-state FFL dealer.
3. Obtain a CA DOJ BOF Dangerous Weapons Permit for an AW.
4. Transport/store it out-of-state.
5. Surrender it to LE for destruction.




Penal Code 30655
(a) Section 30600 shall not apply to a person who is the executor or administrator of an estate that includes an assault weapon or a .50 BMG rifle registered under Article 5 (commencing with Section 30900) or that was possessed pursuant to subdivision (a) of Section 30630 that is disposed of as authorized by the probate court, if the disposition is otherwise permitted by this chapter.
(b) Sections 30605 and 30610 shall not apply to a person who is the executor or administrator of an estate that includes an assault weapon or a .50 BMG rifle registered under Article 5 (commencing with Section 30900) or that was possessed pursuant to subdivision (a) of Section 30630, if the assault weapon or .50 BMG rifle is possessed at a place set forth in subdivision (a) of Section 30945 or as authorized by the probate court.

Penal Code 30915
Any person who obtains title to an assault weapon registered under this article or that was possessed pursuant to subdivision (a) of Section 30630 by bequest or intestate succession shall, within 90 days, do one or more of the following:
(a) Render the weapon permanently inoperable.
(b) Sell the weapon to a licensed gun dealer.
(c) Obtain a permit from the Department of Justice in the same manner as specified in Article 3 (commencing with Section 32650) of Chapter 6.
(d) Remove the weapon from this state.

Penal Code 30935
Any person who obtains title to a .50 BMG rifle registered under this article or that was possessed pursuant to subdivision (a) of Section 30630 by bequest or intestate succession shall, within 180 days of receipt, do one or more of the following:
(a) Render the weapon permanently inoperable.
(b) Sell the weapon to a licensed gun dealer.
(c) Obtain a permit from the Department of Justice in the same manner as specified in Article 3 (commencing with Section 32650) of Chapter 6.
(d) Remove the weapon from this state.

Penal Code 31100
Any individual may arrange in advance to relinquish an assault weapon or a .50 BMG rifle to a police or sheriff's department. The assault weapon or .50 BMG rifle shall be transported in accordance with Sections 16850 and 25610.

socal2310
07-08-2012, 7:16 AM
It's legal because there is not automatic confiscation of it.

When a person with a RAW dies, the executor of the estate is exempt from possessing the AW for up to 90 days, in order to dispose of the RAW.

The RAW can legally be dispose of by the one of the following methods:
1. Permanently disable it (reciever cut per ATF specs).
2. Transfer it to a CA FFL dealer with an assault weapons permit or an out-of-state FFL dealer.

3. Obtain a CA DOJ BOF Dangerous Weapons Permit for an AW.
AKA a unicorn.

4. Transport/store it out-of-state.
5. Surrender it to LE for destruction.


Ryan

ptoguy2002
07-08-2012, 9:54 AM
What about if husband with RAW dies, and wife did not cross register?
IANAL, but doesn't that raise community property issues?

Quiet
07-08-2012, 11:41 AM
What about if husband with RAW dies, and wife did not cross register?
IANAL, but doesn't that raise community property issues?

Nope. Had to do a joint registration.

tygerpaw
07-08-2012, 3:16 PM
I understand the law on what has to be done with them after the owner dies. What I am asking is if anyone has ever challenged the constitutionality of denial of private property rights.

mrdd
07-08-2012, 3:16 PM
What about if husband with RAW dies, and wife did not cross register?
IANAL, but doesn't that raise community property issues?

Technically, they are giving you a way out by letting the executor liquidate and sell out of state. Ninety days is not a lot of time, though.

mrdd
07-08-2012, 3:18 PM
I understand the law on what has to be done with them after the owner dies. What I am asking is if anyone has ever challenged the constitutionality of denial of private property rights.

Again, they are giving the executor time to liquidate the property.

I doubt it has ever been challenged in court.

Demonicspire
07-08-2012, 7:54 PM
We have plenty of inheritance related laws. Inheritance taxes means that if your father is a famous artist and leaves you a painting that is valued at $10,000,000 you gotta either surrender the painting, or pay the tax on it. You would not believe how many things get added to collection via "surrendered in lieu of taxes"

Still its a shame, my dad has a huge Class 3/Work with DOD enabled collection, much of it pre several different bans. I bet I would have to give away/sell a huge chunk of it if he doesn't do something with it himself.

ptoguy2002
07-08-2012, 8:41 PM
We have plenty of inheritance related laws. Inheritance taxes means that if your father is a famous artist and leaves you a painting that is valued at $10,000,000 you gotta either surrender the painting, or pay the tax on it.


Slightly OT, but you are 100% correct. In my case, third generation family business that has grown big enough that when the second generation dies, the third generation will have to sell it off in pieces just to pay taxes.
Government sucks.

safewaysecurity
07-08-2012, 9:06 PM
What about taking of property without just compensation or due process of law?

taperxz
07-08-2012, 9:28 PM
I understand the law on what has to be done with them after the owner dies. What I am asking is if anyone has ever challenged the constitutionality of denial of private property rights.

More than likely the reason it has not been challenged is because it is cost prohibitive for most. Most of these firearms can be taken apart and a simple $100 lower can be put in place instead of going through a long unproven legal battle.

mrdd
07-09-2012, 1:09 PM
What about taking of property without just compensation or due process of law?

Taxes are a taking of property (assets). And last time I checked, only taxes on income are mentioned in the constitution.

Perhaps there is case law from SCOTUS which expands the 16th amendment to include other taxes?

Demonicspire
07-09-2012, 1:32 PM
Well, the way I've always heard it explained is that an inheritance tax is a precaution against aristocracy. I don't know how effective/true that is, but it is sort of a touchy legal issue. It is pretty confiscatory above a certain level. Last I knew, It was 50% after 1 million dollars. Still, how many of us have a million coming to us?

forgiven
07-09-2012, 4:07 PM
Death & Taxes :mad:

Gryff
07-09-2012, 4:59 PM
Still its a shame, my dad has a huge Class 3/Work with DOD enabled collection, much of it pre several different bans. I bet I would have to give away/sell a huge chunk of it if he doesn't do something with it himself.

I feel ya. My Dad's aren't Class 3, but include H&K 91/93, SPAS-12, Valmet 71/S, FN-FAL, FN-FNC, AR-180, and a few others. I particularly kills me that I can't have the Valmet or FN-FAL.

mrdd
07-09-2012, 5:25 PM
What about taking of property without just compensation or due process of law?

Taxes are a taking of property (assets). And last time I checked, only taxes on income are mentioned in the constitution.

Perhaps there is case law from SCOTUS which expands the 16th amendment to include other taxes?

I was wrong. Article I, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

sreiter
07-09-2012, 5:33 PM
Inheritance tax is BS. You are being penalized for saving, and are in fact being taxed 2x. The way around it is a trust, and you beneficiaries become trustee's

InGrAM
07-09-2012, 5:47 PM
Well, the way I've always heard it explained is that an inheritance tax is a precaution against aristocracy. I don't know how effective/true that is, but it is sort of a touchy legal issue. It is pretty confiscatory above a certain level. Last I knew, It was 50% after 1 million dollars. Still, how many of us have a million coming to us?

You would be very surprised how little a $1 million dollars is when ones family saves, invests, and owns two homes (which is very manageable with the way the housing market is/has been). Being responsible with money is hard for some to understand but when you have a decent job along with your spouse and are good with your money, it is not a stretch to earn $1 million or more in assets. Quite a few people in this country are in that boat.

The death tax is thievery...

Scarecrow Repair
07-09-2012, 10:29 PM
That's why they needed the 16th amendment. Capitation must have been interpreted as a tax on all income.

Direct or capitation taxes are on people, ie per capita. Indirect taxes are tariffs. Property taxes, sales taxes, etc are state taxes and not covered.

I guess permits and licenses and such, like park entrance tickets or paying for an FFL03, are not taxes, but I don't know the legal mumbo-jumbo which makes it so.

Gryff
07-09-2012, 10:36 PM
Inheritance tax is BS. You are being penalized for saving, and are in fact being taxed 2x.

Or 3x if you are inheriting property (income tax, sales tax, inheritance tax). Inheritance taxes are a ridiculous.

Ike Arumba
07-10-2012, 12:09 PM
Government-sponsored inflation is a hidden tax, and the interest you gain on your deposits in an attempt to compensate for inflation is overtly taxed again.

ap3572001
07-10-2012, 12:20 PM
A person who inherited RAWS in Ca and who has a right to own firearms should be able to sell it out if state w/o issues and complicatiins.

odysseus
07-10-2012, 12:21 PM
To the OP, I think there should be a legal case. Your legal property in estate is magically deemed illegal to transfer, legally by probate/trust, upon death, because you died. Estate law matters are State matters, and California AW laws are preventing legal transfer of legal estate property to a beneficiary within the State. I don't see how this shouldn't be challenged.

Inheritance tax is BS. You are being penalized for saving, and are in fact being taxed 2x. The way around it is a trust, and you beneficiaries become trustee's

Inheritance tax is very very much bull ****. We have allowed the government to confiscate personal property, which you have ALREADY in most cases, paid taxes on already - sometimes twice. For 401k/IRA, beneficiaries already pay taxes on disbursement so even that is also already considered. Politicians and leftists sell it as a rich-poor class war, but it hits more middle class people than anyone else.

However your assertion is not entirely correct to my knowledge. Trusts pay taxes. Trusts just avoid probate. While you can defer taxes in a Trust to some degree, beneficiaries pay taxes on it on any disbursement. Trustees pay taxes on the Trust as a taxable entity in itself as well on taxable events.

Bhobbs
07-10-2012, 1:13 PM
A person who inherited RAWS in Ca and who has a right to own firearms should be able to sell it out if state keep w/o issues and complicatiins.

Fixed that for you.

mrdd
07-10-2012, 1:21 PM
Direct or capitation taxes are on people, ie per capita. Indirect taxes are tariffs. Property taxes, sales taxes, etc are state taxes and not covered.

I guess permits and licenses and such, like park entrance tickets or paying for an FFL03, are not taxes, but I don't know the legal mumbo-jumbo which makes it so.

Yes, you are right. The 16th amendment was needed to override some SCOTUS rulings to allow collection of taxes on income from any source (not just wages), to not require apportionment among the states, and not require apportionment according to population.