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OK, let me pick apart the stupidity, and see if I can help, without being another "yes man" 'lawyer' for The State.
The quoted bits below are all FGG's words, FWIW.
Except that the textual basis is found in statute, today, as amended by SB-880 and AB-1135, neither of which contemplate a static configuration. Those bills did two major (and many minor) things:
1) They redefined an AW-by-features, to include the "BB" feature as forbidden.
2) They compelled CalDOJ to open registration and to make regulations. That
is, taken from AB-1135:
(5) The department shall adopt regulations for the purpose of implementing this subdivision. These regulations are exempt from the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). Underline mine.
The "purpose" of implementing the relevant subdivision is to register certain firearms as assault weapons. The purpose of same is not to create static configurations, nor to open a registration period for pre-2001 AW's that were hidden away in closets. CalDOJ knows this, and ignores this.
Untrue. There is a connection between the pre-1/1/17 configuration, which necessarily implies then-legal possession, being the ticket for post-1/1/17 registration. But there is no rational link between the maintenance of a specific feature set and the keeping of registered assault weapon status. There is no indicated legislative intent to that end, and if there was, the legislature would be admitting that the BB is unequal to the standard magazine release, despite their entire argument turning on the 'fact' that the BB is just as dangerous as a standard magazine release. In addition, the legislature knows how to create a new, separate class of assault weapon, and is deemed to know that such categories exist and are capable of being created. They did not do this. They added a forbidden feature to an existing category of assault weapon, e.g. "AW-by-features".
Or else FGG is suggesting a greater level of legislative incompetence than I had anticipated.
Not only can you make that argument, but CalDOJ cannot reasonably (even by our corrupt judiciary standards) make the counter-argument proposed. Absent an explicit delegation of authority to that effect, and absent an implied delegation of authority to that effect, on what grounds does CalDOJ make such a claim? There are no grounds they can cite in the statute or the legislative record to that extent. In fact, they would have to admit that AB-1135 and SB-880 find their genesis in the lie that a BB-equipped rifle is as-dangerous a weapon, and moreover as-capable as weapon, as the same rifle equipped with a standard USGI magazine release. Either A=B or A!=B. The legislature is saying the former, CalDOJ is saying the latter.
Put another way, CalDOJ would have to argue that a "loophole" device, which is less capable than a USGI magazine release, and which arose as a sub-optimal fix for the inability to use a standard release, is by its nature actually equivalent, despite it's sub-optimal nature.
Finally, there is no rationale, in terms of tracking the possession, transportation, or use of these rifles, for maintaining a BB vs a standard release. The tracking is done by database record, not by appearance or feature-set. If tracking by feature-set were necessary, for either technical or legal reasons, the same rules would have had to apply to AW-by-features firearms 16+ years ago, a well as to AW-by-name firearms. The implication is that either features don't matter on a RAW, or CalDOJ has been doing their job defectively for 20+ years.
The only reason for "you have to keep the BB on a BB-RAW" is for CalDOJ to be institutionally vindictive. In legal terms, we call that "arbitrary and capricious". Just because the regulations may be adopted outside typical APA procedures does not mean a regulatory agency is immune from being challenged for their arbitrary actions.
On the last point, in 2015 you could have taken a pre-2001 RAW and slapped a BB on it to avoid some of the RAW transport limitations. Today, though registered, it jumped from non-RAW 'status' to RAW 'status'. To the owner it's irrelevant, as there is already a registration on file. That owner can just put the USGI release back on today, without question, adhere to the RAW limitations, and go shooting. Or the owner can keep the BB on, but have to return to adhering to the RAW limitations (transport, locked case, loans, etc.).
No one can explain how that is a rational or non-arbitrary result.
The quoted bits below are all FGG's words, FWIW.
Yes, I think it's 100% unwinnable. What you'd effectively be asking the court to do is re-open registration for a previously banned AR configuration and that would be the framework for any interpretation the court would do. I think you'd need a much more compelling textual basis than the "well it's defined as an AW now so it doesn't matter if it has a BB or a standard mag release" argument, again IMO.
1) They redefined an AW-by-features, to include the "BB" feature as forbidden.
2) They compelled CalDOJ to open registration and to make regulations. That
is, taken from AB-1135:
(5) The department shall adopt regulations for the purpose of implementing this subdivision. These regulations are exempt from the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). Underline mine.
The "purpose" of implementing the relevant subdivision is to register certain firearms as assault weapons. The purpose of same is not to create static configurations, nor to open a registration period for pre-2001 AW's that were hidden away in closets. CalDOJ knows this, and ignores this.
DOJ is empowered to make regulations to implement the bullet button firearm ban and the " no registration of firearms meeting definition of AW under prior law", "must provide digital pics of bullet button release", and "can't change release device" regulations are all consistent with the legislative purpose of banning and allowing a time-limited registration period for bullet button firearms.
Or else FGG is suggesting a greater level of legislative incompetence than I had anticipated.
Can you make an argument that you meet the requirement for registration that you lawfully possessed the firearm in a BB configuration through 12/31/16, and once defined as an AW the release mechanism BB vs. standard is irrelevant? Sure. But that would be your interpretation competing against DOJ's interpretation, which the statute authorizes it to make via regulation, and i think you would lose that one.
Put another way, CalDOJ would have to argue that a "loophole" device, which is less capable than a USGI magazine release, and which arose as a sub-optimal fix for the inability to use a standard release, is by its nature actually equivalent, despite it's sub-optimal nature.
Finally, there is no rationale, in terms of tracking the possession, transportation, or use of these rifles, for maintaining a BB vs a standard release. The tracking is done by database record, not by appearance or feature-set. If tracking by feature-set were necessary, for either technical or legal reasons, the same rules would have had to apply to AW-by-features firearms 16+ years ago, a well as to AW-by-name firearms. The implication is that either features don't matter on a RAW, or CalDOJ has been doing their job defectively for 20+ years.
The only reason for "you have to keep the BB on a BB-RAW" is for CalDOJ to be institutionally vindictive. In legal terms, we call that "arbitrary and capricious". Just because the regulations may be adopted outside typical APA procedures does not mean a regulatory agency is immune from being challenged for their arbitrary actions.
On the last point, in 2015 you could have taken a pre-2001 RAW and slapped a BB on it to avoid some of the RAW transport limitations. Today, though registered, it jumped from non-RAW 'status' to RAW 'status'. To the owner it's irrelevant, as there is already a registration on file. That owner can just put the USGI release back on today, without question, adhere to the RAW limitations, and go shooting. Or the owner can keep the BB on, but have to return to adhering to the RAW limitations (transport, locked case, loans, etc.).
No one can explain how that is a rational or non-arbitrary result.
. But I think the wording could potentially lead to some innovation, such that opening the action causes the magazine to fall out.
at the end...
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