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View Full Version : CLARK under appeal, so doesn't apply?


fleegman
04-27-2008, 12:56 PM
I'm a new member, never posted. Recent acquisitions are an XD40, Kahr CW9, SIG 556, and a Saiga in 7.62 that I'm converting to AK to use my preban 30-round mags.

On Saturday I was in a Palmdale area gun store to get some range ammo, and as I was paying, the salesman "reminded" me to always transport my pistol ammo in a separate locked container, out of reach. I told him that wasn't my understanding of the code, and besides, People vs. Clark rather settled the matter. He said CLARK was under appeal by the State (is it? I dunno....), and therefore didn't apply. I told him I didn't think that was the way case law worked, and that I would continue to carry my unloaded XD40 in a center-of-mass lock-box, with a loaded mag right next to it. He wasn't being an opinionated jerk or anything, it was an amiable difference of opinion, and then we got onto HELLER.

Anyone else think I'm transporting unlawfully due to a CLARK appeal?

hawk1
04-27-2008, 1:10 PM
...and a Saiga in 7.62 that I'm converting to AK to use my preban 30-round mags.

This is interesting. Are you converting it to a single shot rifle, a "featureless" build, or an illegal assult weapon by using a magazine that will hold more than 10 rounds? Which is it?

fleegman
04-27-2008, 2:10 PM
This is interesting. Are you converting it to a single shot rifle, a "featureless" build, or an illegal assult weapon by using a magazine that will hold more than 10 rounds? Which is it?

Featureless. I'm not adding a pistol grip or other "evil" features, just a bullet guide, a USA gas tube, a USA handguard set, a USA trigger group, a USA modified safety, and any other suitable USA components I run across and strike my fancy.

Harrison_Bergeron
04-27-2008, 2:15 PM
This is interesting. Are you converting it to a single shot rifle, a "featureless" build, or an illegal assult weapon by using a magazine that will hold more than 10 rounds? Which is it?

It takes no "conversion" to make a Saiga featureless. The only thing he has to worry about using 10+ round mags is 922(r).

Liberty1
04-27-2008, 2:28 PM
I'm a new member, never posted. Recent acquisitions are an XD40, Kahr CW9, SIG 556, and a Saiga in 7.62 that I'm converting to AK to use my preban 30-round mags.

On Saturday I was in a Palmdale area gun store to get some range ammo, and as I was paying, the salesman "reminded" me to always transport my pistol ammo in a separate locked container, out of reach. I told him that wasn't my understanding of the code, and besides, People vs. Clark rather settled the matter. He said CLARK was under appeal by the State (is it? I dunno....), and therefore didn't apply. I told him I didn't think that was the way case law worked, and that I would continue to carry my unloaded XD40 in a center-of-mass lock-box, with a loaded mag right next to it. He wasn't being an opinionated jerk or anything, it was an amiable difference of opinion, and then we got onto HELLER.

Anyone else think I'm transporting unlawfully due to a CLARK appeal?

Gene???? Librarian????

I think you're fine Clark was back in '04? And even if it were being appealed (don't know if this action affects it's "officialness"), it's logic is still sound as to the application of 12031.

If the legislators intended 12031 to require unattached mags to be unloaded or ammo out of reach they know how to do that as it is exactly what they've done in 12023, 171(e) and other PC statutes dealing with gang or felonious activity.

Plus Clark wasn't a 12031 case. 12031 was just used to define loaded for the sake of the H&S code.

hawk1
04-27-2008, 2:30 PM
Featureless. I'm not adding a pistol grip or other "evil" features, just a bullet guide, a USA gas tube, a USA handguard set, a USA trigger group, a USA modified safety, and any other suitable USA components I run across and strike my fancy.

Good to read. :)
Every once in a while you'll see someone wanting to pin a preban without regards to what results.

Librarian
04-27-2008, 4:38 PM
Gene???? Librarian????

I think you're fine Clark was back in '04? And even if it were being appealed (don't know if this action affects it's "officialness"), it's logic is still sound as to the application of 12031.

If the legislators intended 12031 to require unattached mags to be unloaded or ammo out of reach they know how to do that as it is exactly what they've done in 12023, 171(e) and other PC statutes dealing with gang or felonious activity.

Plus Clark wasn't a 12031 case. 12031 was just used to define loaded for the sake of the H&S code.

Just generically, 'under appeal' doesn't make sense here. Heller is 'under appeal' - a court is considering the case. Clark is settled, in 1996 - nobody is trying to do anything with it; it wasn't that contentious of an issue to Harvey Lee Clark anyway. He was a felon-in-possession and he did have meth.

So this bit The term "loaded" has a commonly understood meaning: "to put a load or charge in (a device or piece of equipment) a gun" or "to put a load on or in a carrier, device, or container; esp: to insert the charge or cartridge into the chamber of a firearm." (Webster's New Collegiate Dict. (1976) p. 674.) Under the commonly understood meaning of the term "loaded," a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not "loaded" if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet "loaded" as the term is commonly understood.

There is nothing in Health and Safety Code section 11370.1 which indicates the
Legislature did not intend to use the term "loaded" in its commonly understood meaning. essential deciding Clark's appeal, isn't in dispute so far as this specific case is concerned.

There might be something else, another case involving the meaning of 'loaded', but any connection to Clark as a case is highly unlikely.

M. Sage
04-27-2008, 4:43 PM
How do you appeal a case that was decided by CA Supreme Court? I don't think you can appeal it on a federal level...

Liberty1
04-27-2008, 5:14 PM
How do you appeal a case that was decided by CA Supreme Court? I don't think you can appeal it on a federal level...

Yes, it could be appealed directly to SCOTUS on constitutional grounds.

I don't think Clark made it to the CA SC? http://www.hoffmang.com/firearms/People-v-Clark-(1996).pdf

M. Sage
04-27-2008, 5:16 PM
Ah, for some reason I thought it was a supreme court decision.

mymonkeyman
04-27-2008, 5:22 PM
FUD it was a 1996 decision, the time to appeal to the CA Supreme Court has long passed. It is true that appellate decisions in California become invalid automatically when the CA Supreme Court grants review, but that hasn't happen. Also, Clark is only one of half a dozen or so cases that say the same thing, "loaded" in 12031 means loaded in the conventional sense: a round in the chamber or a round in the magazine which is in the firearm.

Wizard99
04-28-2008, 11:47 AM
Also, Clark is only one of half a dozen or so cases that say the same thing, "loaded" in 12031 means loaded in the conventional sense: a round in the chamber or a round in the magazine which is in the firearm.

Do you have referances or links for the other cases. Clark is the only one I knew of.

mymonkeyman
04-28-2008, 11:53 AM
Do you have referances or links for the other cases. Clark is the only one I knew of.

A few others were posted here (http://www.calguns.net/calgunforum/showthread.php?p=1156641#post1156641).