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Old 03-02-2009, 4:21 AM
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BillCA BillCA is offline
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Quote:
Originally Posted by hoffmang View Post
How do you complete a sale without giving the thing bought to the buyer.

You are correct that BoF's wording isn't exactly precise, but it doesn't rise to the level of an Underground Regulation there. It is illegal to sell or give a large-capacity magazine in California. It is not illegal to buy or possess.
-Gene
Ahh... no.
While I understand how lawyers can weasel words into different and particular meanings, I don't think you can turn the verb "give" into a finely deliniated moment at the end of a transaction.

Especially since the legislature did not strictly prohibit the sale of or the purchase of high-capacity magazines when they could have easily done so. Consider the wording of the section...

Quote:
12020(2)...manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, or lends, any large-capacity magazine.
And compare to other firearms related PC sections where the sale of an item is prohibited;

Quote:
12070. (a) No person shall sell, lease, or transfer firearms unless ...
12072. (a) (1) No person, corporation, or firm shall knowingly supply, deliver, sell, or give possession or control of a firearm to any person within ...
12020.3. Any person who, for commercial purposes, purchases, sells, manufacturers, ships, transports, distributes, or receives a firearm, where the coloration...
Examples of legislation that bans the selling of an item.

As used in 12020, the usage of the verb "gives" follows actions related to sales and precedes the verb "lend". It could be shortened to any person "who gives, or lends,". If read in this manner, the verb "gives" exists outside of the reference to sales and indicates a prohibition against providing large-capacity magazines to another person for no cost (e.g. as a gift).

And, while one definition of "give" in Merraim-Webster includes an example of a sale, the Supreme Court has repeatedly stated A statute’s words must be given their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import. E.g., Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207. Thus, when give is used as an alternative to "keep for sale" or "lend" the ordinary, contemporary meaning is to "bequeath or bestow upon another" with no exchange of valuata.

As for the OP, I would certainly think that BOF's addition of the word transfer which is not in the statute would constitute an attempt for formulate an underground regulation. BOF is not empowered to add new words or meanings to statutes.

As far as I can tell, the phrases "Keep for sale", "expose for sale" and "offer for sale" do not have a defined meaning in the PC and I have not found any reference in the on-line OAL website.

Expose for sale would, I think, mean display of the item in a way that shows they are for sale, such as being grouped with other items for sale, marked with the selling price or next to a sign indicating a sale, price or discount.

Offer for sale, would indicate somone stating they have the item for sale, specifying a price for sale or offering to exchange the item for something else of value. Offer does not need to include the display of the item.

Keep for sale implies (to my thinking of course) that the intent of the possession (keeping) is soley for selling the item. Since the law does not prohibit the possession of a large-capacity magazine, mere possession of the magazine, absent a gun that it fits, is insufficient to establish a keep for sale violation. If BOF is to be believed, a high-capacity magazine must be retained by the owner until it can be disposed of out of state or destroyed. This means one can have a shoebox full of magazines left over from guns previously sold.

The question then becomes, if a person offers to buy a specific magazine, not only sight unseen but without knowing first if the person actually has the magazine, would acceptance of the offer (i.e. delivering the magazine(s) in a closed brown sack, constitute a violation of 12020(2)?

Last edited by BillCA; 03-02-2009 at 4:27 AM..
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