Unloaded Open Carry of pre-1898 .38 Long Colt?

[AaronHorrocks]

I have a Colt Navy Model 1895 Revolver made in 1895.

As I was unable to find any replicas of such; capgun, airsoft, blankfire, dummy, so I buckled down and bought the real thing.
As it turns out, it seems like even though it was made before 1898, and it's an antique, that I may not be able to unloaded open carry this revolver?

The law states:

"Any antique firearm. For purposes of this section, "antique firearm" means any firearm not designed or redesigned for using rimfire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade."

I'm concentrating on the second part of that run-on sentence:
"... also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade."

Here's the details:

It's made before 1898.
It's black powder.
It is "fixed ammunition"?
While it is a black powder cartridge, is it "conventional center fire"?
.38 Long Colt basically went extinct when .38 Special came about. There was a time (decades!) when this ammunition was no longer produced. So, there was a time period when ammo was not produced, and as such, this revolver qualified as a "antique firearm" under the State of California.

I was unable to find any gunstore that sold .38 Long Colt...
However, due to the popularity of Cowboy Action Shooting, a couple of outfits started making obsolete cartridges, and now you can actually mail order .38 LC, if you're lucky enough to find it in stock.
Specifically, there's Black Hills Ammunition, and Ultramax, both of which come in vintage style boxes.
However does a couple of specialty outfits, who's ammo that you can only find at a handful of specialty ammo dealers qualify as "ordinary channels of commercial trade"? Because if would be my opinion that .38 LC isn't in the "ordinary channels". It's fairly vague.

So since this ammunition is apparently made in the United States again, it would seem that the 1895 Colt would no longer be an antique according to state law, because a small time outfit decided to start making .38 LC ammo?

[DSB]

What Penal Code Section are you looking at? Unless I'm missing something (which is very possible), a revolver is a handgun, regardless of whether it's an antique or not.

Penal Code Section 26350 states:

26350. (a) (1) A person is guilty of openly carrying an unloaded
handgun when that person carries upon his or her person an exposed
and unloaded handgun outside a vehicle while in or on any of the
following:
(A) A public place or public street in an incorporated city or
city and county.
(B) A public street in a prohibited area of an unincorporated area
of a county or city and county.
(C) A public place in a prohibited area of a county or city and
county.
(2) A person is guilty of openly carrying an unloaded handgun when
that person carries an exposed and unloaded handgun inside or on a
vehicle, whether or not on his or her person, while in or on any of
the following:
(A) A public place or public street in an incorporated city or
city and county.
(B) A public street in a prohibited area of an unincorporated area
of a county or city and county.
(C) A public place in a prohibited area of a county or city and
county.
(b) (1) Except as specified in paragraph (2), a violation of this
section is a misdemeanor.
(2) A violation of subparagraph (A) of paragraph (1) of
subdivision (a) is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed one thousand dollars
($1,000), or by both that fine and imprisonment, if both of the
following conditions exist:
(A) The handgun and unexpended ammunition capable of being
discharged from that handgun are in the immediate possession of that
person.
(B) The person is not in lawful possession of that handgun.
(c) (1) Nothing in this section shall preclude prosecution under
Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing
with Section 29900) of Division 9, Section 8100 or 8103 of the
Welfare and Institutions Code, or any other law with a penalty
greater than is set forth in this section.
(2) The provisions of this section are cumulative and shall not be
construed as restricting the application of any other law. However,
an act or omission punishable in different ways by different
provisions of law shall not be punished under more than one
provision.
(d) Notwithstanding the fact that the term "an unloaded handgun"
is used in this section, each handgun shall constitute a distinct and
separate offense under this section.

[Librarian]

PC 16520 (d)(5) says

(d) As used in the following provisions, “firearm” does not include an unloaded antique firearm:

(1) Subdivisions (a) and (c) of Section 16730.

(2) Section 16550.

(3) Section 16960.

(4) Section 17310.

(5) Chapter 6 (commencing with Section 26350) of Division 5 of Title 4.

and 26350 is the UOC prohibition

26350.

(a) (1) A person is guilty of openly carrying an unloaded handgun when that person carries upon his or her person an exposed and unloaded handgun outside a vehicle while in or on any of the following:

Dunno about the ammo issue.

[DSB]

PC 16520 (d)(5) says

(d) As used in the following provisions, “firearm” does not include an unloaded antique firearm:

(1) Subdivisions (a) and (c) of Section 16730.

(2) Section 16550.

(3) Section 16960.

(4) Section 17310.

(5) Chapter 6 (commencing with Section 26350) of Division 5 of Title 4.

PC 16520 (d)(5) says and 26350 is the UOC prohibition

Dunno about the ammo issue.

Librarian,

Do you agree, then, that the exception to the definition of "firearm" (as listed in PC 16520(d)(5)) does not apply to PC 26350, and that there is no exception for unloaded open carrying of an antique pistol?

In other words, PC 26350 prohibits the unloaded open carrying of all handguns, regardless of whethe the handgun is an antique.

[musketjon]

Why do you feel the need to open/empty carry? Looking for a free stay in the Green-Bar Motel? Not every cop is going to know the intracacies (sic) of the law. You're just asking for trouble. Remember, Kalifornia is no longer a part of Free America.
Jon

[AFTII]

I have a Colt Navy Model 1895 Revolver made in 1895.

As I was unable to find any replicas of such; capgun, airsoft, blankfire, dummy, so I buckled down and bought the real thing.
As it turns out, it seems like even though it was made before 1898, and it's an antique, that I may not be able to unloaded open carry this revolver?

However does a couple of specialty outfits, who's ammo that you can only find at a handful of specialty ammo dealers qualify as "ordinary channels of commercial trade"? Because if would be my opinion that .38 LC isn't in the "ordinary channels". It's fairly vague.

So since this ammunition is apparently made in the United States again, it would seem that the 1895 Colt would no longer be an antique according to state law, because a small time outfit decided to start making .38 LC ammo?

I think what you are citing is Cal. Penal Code Section 16170. That Code expressly incorporates the definition of "Antique Firearm" defined in 18 USC 921(a)(16), albeit in a non-runon sentence:

"(16) The term “antique firearm” means—
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica—
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof." (Emphasis added).

I've looked at the websites for Ten-X, Ultramax and Black Hills to try to determine where their ammo is manufactured. That is not clear, but it is irrelevant since the law requires not only that the ammo is not manufactured in the USA, but that it is also not readily available through "ordinary channels of commercial trade." There is absolutely no doubt in my mind that .38 Long Colt is readily available through commercial channels. See, http://www.midwayusa.com/38-long-colt/br?cid=9524

http://www.black-hills.com/shop/cowboy-ammo/38-long-colt/

And of course, Ten-X Ammo is located in Rancho Cucamonga. http://www.tenxammo.com/contact_us.html

http://www.tenxammo.com/california_dealers.html

I recommend you don't do it.

[AaronHorrocks]

Why do you feel the need to open/empty carry? Looking for a free stay in the Green-Bar Motel? Not every cop is going to know the intracacies (sic) of the law. You're just asking for trouble. Remember, Kalifornia is no longer a part of Free America.
Jon

Why do you feel the need to dress up in civil war attire?

[Librarian]

Librarian,

Do you agree, then, that the exception to the definition of "firearm" (as listed in PC 16520(d)(5)) does not apply to PC 26350, and that there is no exception for unloaded open carrying of an antique pistol?

In other words, PC 26350 prohibits the unloaded open carrying of all handguns, regardless of whethe the handgun is an antique.

No - the opposite.

26350 is the prohibition, 16520(d) is the exception to that prohibition.

[Swampcrip]

Why?

[Librarian]

Why?

Care to amplify your question?

The technical reason is 'that's the way to read the Penal Code'.

ETA Lemme 'splain ...

Already posted is

26350. (a) (1) A person is guilty of openly carrying an unloaded
handgun when that person carries upon his or her person an exposed
and unloaded handgun outside a vehicle while in or on any of the
following:

This is the prohibition.

But, waaaay up in the definitions is 16520

(d) As used in the following provisions, “firearm” does not include an unloaded antique firearm:

...
(5) Chapter 6 (commencing with Section 26350) of Division 5 of Title 4.

That says 'for the purposes of the no-open-carry section (and all of Chapter 6, sections 26350-26389), unloaded antiques do not count'.

[Mssr. Eleganté]

I think what DSB is trying to point out is that antique firearms are exempted from the definition of "firearm" in 26350, but 26350 doesn't even have the word "firearm" in it. So while the legislature seems to have been trying to exempt antique handguns, they might have accidently not exempted them because they worded the exemption poorly.

[Swampcrip]

Care to amplify your question?

The technical reason is 'that's the way to read the Penal Code'.

ETA Lemme 'splain ...

Already posted is This is the prohibition.

But, waaaay up in the definitions is 16520

That says 'for the purposes of the no-open-carry section (and all of Chapter 6, sections 26350-26389), unloaded antiques do not count'.

i mean why open carry an antique

[Librarian]

I think what DSB is trying to point out is that antique firearms are exempted from the definition of "firearm" in 26350, but 26350 doesn't even have the word "firearm" in it. So while the legislature seems to have been trying to exempt antique handguns, they might have accidently not exempted them because they worded the exemption poorly.

Possibly - but if an antique is not a 'firearm' it probably isn't a handgun, either -

[Milsurp Collector]

Possibly - but if an antique is not a 'firearm' it probably isn't a handgun, either -

PC 26350 prohibits unloaded open carry of handguns.

26350. (a) (1) A person is guilty of openly carrying an unloaded
handgun when that person carries upon his or her person an exposed
and unloaded handgun outside a vehicle while in or on any of the
following:

PC 16640 defines handguns:

16640. (a) As used in this part, "handgun" means any pistol,
revolver, or firearm capable of being concealed upon the person.

Doesn't say anything about antique, date of manufacture, or whether the ammo is still manufactured. If it is a pistol or revolver or firearm that can be concealed upon a person, it is a handgun.

This gun is very similar to the gun the OP is asking about:



Is it a revolver? Yes.

Can it be concealed upon a person? Yes.

Therefore, it meets the California definition of a handgun. And PC 26350 bans unloaded open carry of such handguns.

[Librarian]

PC 26350 prohibits unloaded open carry of handguns.



PC 16640 defines handguns:



Doesn't say anything about antique, date of manufacture, or whether the ammo is still manufactured. If it is a pistol or revolver or firearm that can be concealed upon a person, it is a handgun.

This gun is very similar to the gun the OP is asking about:



Is it a revolver? Yes.

Can it be concealed upon a person? Yes.

Therefore, it meets the California definition of a handgun. And PC 26350 bans unloaded open carry of such handguns.

So, what do you see as the effect of 16520(d)?