Miller v. Bonta 9th Ckt "assault weapons": Held for Duncan result 1-26-24

[IVC]

No.
A lower without an upper is neither centerfire or semi-automatic.

This is true, but it hasn't been extensively tested with respect to "constructive possession." It's a legal theory that a set of parts in immediate vicinity that can be put together quickly are the same as being put together.

The one case off of the top of my head was Nguyen some years back (search for "nguyen constructive possession assault weapon") and I believe it was an add-on charge, but still it's a good case to look at and draw conclusions.

As long as it's a "cultural war" where the other side is sending a virtue-message, we are at risk of overzealous prosecutors even if we end up in the clear after a lengthy trial.

[taperxz]

This is true, but it hasn't been extensively tested with respect to "constructive possession." It's a legal theory that a set of parts in immediate vicinity that can be put together quickly are the same as being put together.

The one case off of the top of my head was Nguyen some years back (search for "nguyen constructive possession assault weapon") and I believe it was an add-on charge, but still it's a good case to look at and draw conclusions.

As long as it's a "cultural war" where the other side is sending a virtue-message, we are at risk of overzealous prosecutors even if we end up in the clear after a lengthy trial.

[curtisfong]

We are dealing with CA laws only. Even DOJ has said removing the upper from a BB lower was sufficient to remove it from AW status as long as it wasn’t banned by name.

Considering the DoJ can show up at your doorstep at any time with a warrant and a blowtorch, you should always consider storing all of your (non named) AWs in an upper/lower separated configuration. Yes, this makes them less readily usable if needed, but that's CA for you, and yes, you still run the risk of constructive possession.

Disclaimer: I am not a lawyer. CA can always charge you with AW violations at any time. They provably do not give a crap about the law or your rights. You own firearms at your own risk in CA.

[RickD427]

This is true, but it hasn't been extensively tested with respect to "constructive possession." It's a legal theory that a set of parts in immediate vicinity that can be put together quickly are the same as being put together.

The one case off of the top of my head was Nguyen some years back (search for "nguyen constructive possession assault weapon") and I believe it was an add-on charge, but still it's a good case to look at and draw conclusions.

As long as it's a "cultural war" where the other side is sending a virtue-message, we are at risk of overzealous prosecutors even if we end up in the clear after a lengthy trial.

Considering the DoJ can show up at your doorstep at any time with a warrant and a blowtorch, you should always consider storing all of your (non named) AWs in an upper/lower separated configuration. Yes, this makes them less readily usable if needed, but that's CA for you, and yes, you still run the risk of constructive possession.

Disclaimer: I am not a lawyer. CA can always charge you with AW violations at any time. They provably do not give a crap about the law or your rights. You own firearms at your own risk in CA.

Please keep in mind that California's "Assault Weapon" statute does not incorporate any "Constructive Possession" language.

You can't get fanged for the "Constructive Possession" of an Assault Weapon.

But a creative Orange County District Attorney did gain recognition of the criminal charge of "Attempted Possession" of an Assault Weapon in the case of People v Nguyen.

Penal Code section 664 defines "Attempts" to commit crimes and generally sets the penalty for an attempt at one-half of what the sentence would be for the completed crime.

The crime of "Attempted Possession of an Assault Weapon" kinda, sorta, at least a little bit, looks like what 'Constructive Possession of an Assault Weapon" would look like, if there were such a thing. But there are some very significant differences between "Attempted Possession" and "Constructive Possession":

1) To prove "Attempted Possession", the nice prosecutor has to show that the defendant had the intent to assemble the parts of an Assault Weapon into an Assault Weapon. In "Constructive Possession" they only have to show that defendant had the parts.

2) In an "Attempted Possession" case, the prosecutor has to show that the defendant made an ineffective act (which could be a perfectly legal act) toward the completion of the crime. There is no corresponding requirement for "Constructive Possession" cases.

[Rich1911]

This may be a stupid question, but if I purchase a stripped AR lower before a decision is announced, does that mean that at any point in the future it will be grandfathered in and allowed to be built with features and removable mag? Or would it have to be physically built before a stay is implemented? Thank you

to follow up on this question, is there a way to tell whether it was built before/during this window?

[curtisfong]

to follow up on this question, is there a way to tell whether it was built before/during this window?

The DoJ usually makes this as easy as possible for them to prove by forcing you to take pictures if you wish to grandfather anything.

Disclaimer: i am not a lawyer. I have no idea what DoJ intends to do, nor do i pretend to understand the burden of proof with regards to timing here.

[BBot12]

Miller v. Becerra, SDCA - Challenging the ban on "assault weapons"

to follow up on this question, is there a way to tell whether it was built before/during this window?

[ScottsBad]

The answer to that depends on how long it takes the communists to pack the supreme court with a bunch more communist sympathizers.

I was just thinking the same thing. If they think they are going to lose, they may implement their "supreme court reforms" sooner rather than later..

[taperxz]

Considering the DoJ can show up at your doorstep at any time with a warrant and a blowtorch, you should always consider storing all of your (non named) AWs in an upper/lower separated configuration. Yes, this makes them less readily usable if needed, but that's CA for you, and yes, you still run the risk of constructive possession.

Disclaimer: I am not a lawyer. CA can always charge you with AW violations at any time. They provably do not give a crap about the law or your rights. You own firearms at your own risk in CA.

Wrong. Constructive possession is virtually non existent in CA for AW’s. If it was, all gun stores would be out of business. Other than Roberti Roos,(can’t have those) can you find an exemption in a law that bans gun stores from constructively possessing AW’s ?

[HKRick]

PC 30515 (hh) “Semiautomatic” means a firearm functionally able to fire a single cartridge, eject the
empty case, and reload the chamber each time the trigger is pulled and released. Further,
certain necessary mechanical parts that will allow a firearm to function in a semiautomatic
nature must be present for a weapon to be deemed semiautomatic. A weapon clearly
designed to be semiautomatic but lacking a firing pin, bolt carrier, gas tube, or some other
crucial part of the firearm is not semiautomatic for purposes of Penal Code sections 30515,
30600, 30605(a), and 30900.
(1) A mechanically whole semiautomatic firearm merely lacking ammunition and a
proper magazine is a semiautomatic firearm.
(2) A mechanically whole semiautomatic firearm disabled by a gun lock or other
firearm safety device is a semiautomatic firearm. (All necessary parts are present, once
the gun lock or firearm safety device is removed, and weapon can be loaded with a
magazine and proper ammunition.)


****(3) With regards to an AR-15 style firearm, if a complete upper receiver and a complete
lower receiver are completely detached from one another, but still in the possession or
under the custody or control of the same person, the firearm is not a semiautomatic
firearm. ****

[ar15barrels]

This is true, but it hasn't been extensively tested with respect to "constructive possession." It's a legal theory that a set of parts in immediate vicinity that can be put together quickly are the same as being put together.

The one case off of the top of my head was Nguyen some years back (search for "nguyen constructive possession assault weapon") and I believe it was an add-on charge, but still it's a good case to look at and draw conclusions.

As long as it's a "cultural war" where the other side is sending a virtue-message, we are at risk of overzealous prosecutors even if we end up in the clear after a lengthy trial.

hahahahaha

Nguyen was a felon in possession.
That's NOT a good case for non-felons.

[ar15barrels]

to follow up on this question, is there a way to tell whether it was built before/during this window?

They can tell when you DROS'ed the gun starting in 2014.
So if you have NOT already DROS'ed the gun, it will be difficult to say that you had it before you DROS'ed it unless you had it prior to 2014 which is typically not the case for people building new guns today.

[RickD427]

hahahahaha

Nguyen was a felon in possession.
That's NOT a good case for non-felons.

Please note that while Mr. Nguyen was a felon, that fact was irrelevant to his conviction for "Attempted Possession of and Assault Weapon (664/30600 PC).

Status as a convicted felon is not a required element for conviction on that charge (although I'm sure that it factored heavily in the D.A.'s decision to file the charge).

Now that the case law is clear, it could equally well be applied to the Eagle Scout, with a squeaky clean record, who also had the component parts, an intent to assemble, and who made an ineffective act toward assembly.

The case applies equally to non-felons as well.

[jcwatchdog]

to follow up on this question, is there a way to tell whether it was built before/during this window?

That’s like asking how to tell when if you got all your high capacity mags during freedom week ��. If you admit to the timeframe is the only way they would know.

As long as you have possession of the gun, lower etc by the time a favorable ruling would be issued, they wouldn’t know when you converted it or built it.

[champu]

Please note that while Mr. Nguyen was a felon, that fact was irrelevant to his conviction for "Attempted Possession of and Assault Weapon (664/30600 PC).

Status as a convicted felon is not a required element for conviction on that charge (although I'm sure that it factored heavily in the D.A.'s decision to file the charge).

Now that the case law is clear, it could equally well be applied to the Eagle Scout, with a squeaky clean record, who also had the component parts, an intent to assemble, and who made an ineffective act toward assembly.

The case applies equally to non-felons as well.