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  #41  
Old 02-18-2020, 9:05 PM
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But if the individual was not discharged from military service in California, the general test would apply.
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  #42  
Old 02-18-2020, 9:20 PM
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Originally Posted by Dvrjon View Post
Rick, we’ve discussed this at length a number of times, and you still seem to turn a blind eye to the full text of CA PEN 17000. You seem solely focused on the language of 17000(a), fully excluding any deference to the black letter language of 17000(b):PEN 17000(a) is irrelevant to anyone under military orders, regardless of their home of record. It even states an exception to its provisions under the conditions of subdivision (b).

PEN 17000(b) controls, and clearly states that residency is determined when the individual was discharged from active service in this state.

How can this be construed to mean the CVC is controlling when the statute says it isn’t?

Best.
I'm not reading it the same way as you have, as you've correctly pointed out, and I don't have any case law to distinguish which of our positions is correct.

The way that I read PC 17000(b) is that a service member, stationed in California, becomes a resident if they are discharged in California.

In reaching my conclusion, I'm influenced by the legislative practice of many states (I would say all, I don't know of any that differ from this) that treat their residents as remaining so through the period of their military service. Under that model, a military person from another state and serving in California would remain a resident of the other state until discharged in California.

If I were to read the statute in the way I think you're suggesting, then a California resident who enters military service, and is then stationed in California, would become a "stateless" person until discharged. I can't accept that as the legislative intent of PC 17000(b)(2).

In furtherance of my POV, I would argue that a California resident who enters military service has already "established" their California residency prior to entry and that makes PC 17000(b)(2) a nullity with regard to such a person assigned orders to California.

But I'll yield that this is only opinion and unsupported by any case law that I can cite. And, again, this is why I recommended that the OP contact his JAG, rather than offer him an unsupported conclusion of how the law might affect him. I still believe this appropriate given the strict enforcement protocols of the DOJ, the close accountability of military members, and the rather draconian effect of PC sections 27585 and 27590.

I suspect that we will continue to disagree on the point. That's cool. If everyone on this forum agreed on every issue, it would be a pretty boring place. I only ask that disagreement be respectful, and yours certainly has been and I very much appreciate that.
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Last edited by RickD427; 02-18-2020 at 10:00 PM..
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  #43  
Old 02-19-2020, 5:00 AM
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No offense to the many JAGs out there but they are general not well versed in state law.

I’m with Rick on this one.

A couple of other ways to determine residency are tax law, and ...divorce/family law.

https://www.ftb.ca.gov/forms/2017/17_1031.pdf covers the residency test for tax purposes. One could use this as a litmus test for the purposes of firearms as well.

One can only be a resident of one state at a time. This is typically determined by tax authority and voting, but not always.

If I entered the military from the state of Florida, I will always be considered a resident of that state until I change it. So as a general rule a persons home of record is usually their state of residency. So one only has to look at the the state listed on your LES as paying state tax too.

In the OPs case, he’s is a considered a resident of California and subject to the laws as a resident, vice non-resident.




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  #44  
Old 02-19-2020, 5:13 AM
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Additional info on this page: https://www.ftb.ca.gov/file/personal.../military.html

Quote:
If your domicile is California, we consider you a resident, and you pay tax on all income while permanently stationed here.

If you come to California because of permanent change of station (PCS) orders, you do not become a resident. Generally, you are a resident of the state from which you entered the military.
Although a conflict with ATF described here: https://www.ffl123.com/ffl-dealer-sa...-verification/
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According to the ATF, an active duty member of the Armed Forces may have more than one state of residence. Before going further, it’s important to note the definition of active duty. The Department of Defense defines active duty as “full-time duty in the active military service of the United States. This includes members of the Reserve Components serving on active duty or full-time training duty, but does not include full-time National Guard duty.” The primary state of residence would fall under the Gun Control Act’s (GCA) general definition of State of residence, which refers to the state in which the individual resides. The secondary state residency refers to the state in which the service member’s permanent duty station is located.
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  #45  
Old 02-19-2020, 5:42 AM
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My apologies if it's already been stated, but are you aware there is a single firearm exemption to the assault weapon ban for active duty military? You might be able to aquire it in a free state, and bring it back legally with an assault weapon permit (or just added to your current assault weapon permit).
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  #46  
Old 02-19-2020, 6:12 AM
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Originally Posted by colt11 View Post
My apologies if it's already been stated, but are you aware there is a single firearm exemption to the assault weapon ban for active duty military? You might be able to aquire it in a free state, and bring it back legally with an assault weapon permit (or just added to your current assault weapon permit).
From here: https://oag.ca.gov/firearms/regagunfaqs#mawp
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A Military Assault Weapon Permit allows possession of a personal assault weapon for use in military sanctioned activities only, by active members of the military permanently stationed in California who have express permission from their Military Base Commander.
Bold added by me. Do Military Base Commander's really sign off on these for something other than the bolded? I wouldn't think an AR-Pistol is used for any military sanctioned activities.
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  #47  
Old 02-19-2020, 9:16 AM
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Originally Posted by ugimports View Post
Do Military Base Commander's really sign off on these for something other than the bolded? I wouldn't think an AR-Pistol is used for any military sanctioned activities.
I don't know of anyone who has successfully received a "Military Assault Weapons Permit."

It's important to note that the requirement is for the member's "Base Commander" rather than "Unit Commander" to sign the application. Base Commanders tend to be very senior officers and they have legal staffs to review the papers they sign. Take the example of Marines at Camp Pendleton. There are a great many Marine Corps units at Camp Pendleton, but the Base Commander is Brigadier General. He's the one who's gotta sign the app for members assigned to Camp Pendleton units.

A second point to consider is that Senator Feinstein sits on the Senate Defense Sub Committee. She is a strong gun control advocate and a political ally of the California Attorney General. I would strongly believe that if the AG were to receive a "Military Assault Weapons Permit" application signed by the Camp Pendleton Commanding General that there would be some quick "back-channel" phone calls made with the result being an inquiry being made to Marine Corps Headquarters as to why the Marine Corps was unable to issue a weapon to the requestee in order to meet military requirements. Guess how that would turn out?

I hope that I'm wrong here. Does anyone know anyone who has received such a permit?
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  #48  
Old 02-19-2020, 10:00 AM
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Here’s an example of what the Marines tell their folks coming to California.

https://www.pendleton.marines.mil/Ne...-Registration/

Notice they make no mention of the the vehicle code and it’s effect on new resident registration. So, take JAG with a grain of salt.


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  #49  
Old 02-19-2020, 10:02 AM
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Originally Posted by RickD427 View Post
I hope that I'm wrong here. Does anyone know anyone who has received such a permit?


Ive never seen one or heard of one. Anecdotal, but I’ve also been around awhile.


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  #50  
Old 02-22-2020, 6:35 AM
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Originally Posted by Dvrjon View Post
Rick, we’ve discussed this at length a number of times, and I still don’t understand why the full text of CA PEN 17000. isn’t clear. Focusing solely on the language of 17000(a), excludes any deference to the black letter language of 17000(b):So, by its own language, PEN 17000(a) appears irrelevant to anyone under military orders, regardless of their home of record. It even states an exception to its provisions under the conditions of subdivision (b).

With that, it would appear that PEN 17000(b) controls and clearly states that residency for members of the Armed Forces of the United States is determined when the individual is discharged from active service in this state.

It doesn’t appear that the provisions of the CVC have any relevance to settling the issue.

Best.
Im speaking with JAG Monday morning. But from what you are saying, am I SOL or good to go? lol
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  #51  
Old 02-22-2020, 2:59 PM
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Sorry for delay, but family is in town....

In my opinion, CA PEN neither confers, confirms or denies the status of "residency" or "residence" on anyone. The provisions of the statute are fully contained within the four corners of the law, and are fenced within those corners. External evaluation is neither needed nor appropriate.

The statute provides a definition for a "Personal Firearm Importer".

The first words of the statute say, "As used in this part," which limits the use and meaning of the term to CA PEN Part 6. Control of Deadly Weapons. The definition of the term has no bearing outside of the Penal Code, Part 6.

In establishing the meaning of the term, "Personal Firearm Importer", the statute tells us, "...a 'personal firearm importer' means an individual who meets all of the following criteria."

The statute then lists a number of criteria, including paragraph (6) under subdivision (a): "The individual moved into this state [...] as a resident of this state."

At the end of the criteria list, the statute provides us with subdivision (b), which seeks to explain the meaning of residency as it applies to the (a)(6) criterion, "(b) For the purposes of paragraph (6) of subdivision (a):"

With that, the standards expressed in Subdivision (b)(1) or (2) have no bearing or use outside of clarification of subdivision (a) paragraph (6). they are "fenced" and can't travel to other areas of state activity.

In subdivision (b)(1), prior to establishing the first clarification standard, the subdivision states, "Except as provided in paragraph (2)", so, anything following in (b)(1) specifically does not pertain to the circumstance to be displayed in (b)(2). Then, subdivision (b)(1) goes on, "...residency (for the sole purposes of paragraph (6) of subdivision (a)) shall be determined in the same manner as is the case for establishing residency pursuant Section 12505 or the (CA) Vehicle Code.

Based on this, the Vehicle Code standards cannot apply to the next subdivision.

Subdivision (b)(2) tells us, "In the case of a member of the Armed Services of the United States, residency (for the sole purposes of paragraph (6) of subdivision (a)) shall be deemed to be established when the individual was discharged from active service in this state." There is no additional qualification regarding place of birth, place of enlistment, Home of Record, location of property. Nothing else. The paragraph simply presents the treatment for "residency" (for the sole purposes of subdivision (a)(6)) for active military personnel.

Thus, the statute appears to say, when determining if an active duty service member is a "personal firearm importer" the issue of residency under one of the definition criteria shall only be based on location of discharge from service. And, that determination holds no validity for anything other than making the personal firearms importer determination.

Best.
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  #52  
Old 02-22-2020, 3:19 PM
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...
Quote:
Originally Posted by RickD427 View Post
I'm not reading it the same way as you have, as you've correctly pointed out, and I don't have any case law to distinguish which of our positions is correct. Case law is only necessary when there is ambiguity in the language and interpretation of the law or a conflict with other statutes. I would suggest that the statute isn't ambiguous in this issue as it truly limits the use of the residency standard to the confines of CA PC 17000(a)(6). It even harmonizes non-military citizens' situations with CA Vehicle Code requirements.

The way that I read PC 17000(b) is that a service member, stationed in California, becomes a resident if they are discharged in California. If I may, the statute says, "when", not "if". And I would suggest to you that the statute doesn't say they become a "resident of California" when discharged, the statute says (if all other criteria are met) they become a "personal firearms importer" when they are discharged.

In reaching my conclusion, I'm influenced by the legislative practice of many states (I would say all, I don't know of any that differ from this) that treat their residents as remaining so through the period of their military service. Under that model, a military person from another state and serving in California would remain a resident of the other state until discharged in California. What other states do about anything has nothing to do with Section 17000. It is a California Penal Code definition specifically fenced within the California Penal Code and a subparagraph of 17000.

If I were to read the statute in the way I think you're suggesting, then a California resident who enters military service, and is then stationed in California, would become a "stateless" person until discharged. I can't accept that as the legislative intent of PC 17000(b)(2). Section 17000(b)(2) clarifies an element of a specific critera to meet the definition of a personal firearms importer. So, no, these individuals don't become "stateless", they only become not a "personal firearms importer". The definition does not extend outside the four corners of the statute, and is, in fact, limited just to the purposes of subdivision (a)(6).

In furtherance of my POV, I would argue that a California resident who enters military service has already "established" their California residency prior to entry and that makes PC 17000(b)(2) a nullity with regard to such a person assigned orders to California. Again, back to the code. The section doesn't establish or diminish "California residency". It establishes a clarification of a term used in the definition for individuals to be considered "personal firearms importers". That definition and its parameters can't travel outside CA PEN Part 6 due to the constraint, "As used in this part...".

But I'll yield that this is only opinion and unsupported by any case law that I can cite. And, again, this is why I recommended that the OP contact his JAG, rather than offer him an unsupported conclusion of how the law might affect him. I still believe this appropriate given the strict enforcement protocols of the DOJ, the close accountability of military members, and the rather draconian effect of PC sections 27585 and 27590. I spent over 30 years dealing with JAG officers at the local, regional Area Defense Council, Major Command levels and Joint service operations. The JAGS are usually really solid, and proficient in UCMJ, ROEs (Rules of Engagement) and federal statutory guidelines. They sometimes "bone up" on tax law. But individual esoteric rules of California gun laws? I'd ask my cat, first.

I suspect that we will continue to disagree on the point. That's cool. If everyone on this forum agreed on every issue, it would be a pretty boring place. I only ask that disagreement be respectful, and yours certainly has been and I very much appreciate that. Huh...I'm expecting you to respectfully agree.
Best.
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