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Here’s a short list of some very important things that California gun owners should keep in mind as they head into the new year.

1. Proposition 63 is already the law (!).

On November 8, 2016, California voters enacted Proposition 63 (the “Safety for All Act”), sponsored by Lt. Gov. Gavin Newsom.

And, according to Article II, Section 10(a) of the California Constitution: “An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.”

Among other things, Proposition 63 amended Penal Code Sections 32310, 32400, 32405, 32410, 32425, 32435, 32450, added Section 32406, and repealed Section 32420 by initiative statute, which changed the law to totally prohibit and criminalize the possession of “large-capacity magazines” as of July 1, 2017.

You can see, for example, that Penal Code Section 32310 already reflects Prop 63 (as noted on the Leginfo website, “Amended November 8, 2016, by initiative Proposition 63, Sec. 6.1.”).

2. Seven new gun control bills will become law on January 1, 2017.

Here’s a quick run down of the California gun bills that Governor Jerry “Moonbeam” Brown signed into law in July:

  • AB 1135 (Levine): Bans common and constitutionally-protected firearms that have magazine locking devices (like the “Bullet Button”). Sister bill to SB 880.
  • SB 880 (Hall): Bans common and constitutionally-protected firearms that have magazine locking devices. Sister bill to AB 1135.
  • AB 1511 (Santiago): Criminalizes loaning of firearms between personally known, law-abiding adults, including family members, sportspersons, and competitors.
  • AB 1695 (Bonta): Makes a non-violent misdemeanor a prohibiting offense.
  • SB 1235 (de Leon): New restrictions on ammunition purchases and sellers; creates a DOJ database of ammunition owners.
  • SB 1446 (Hancock): Statewide confiscatory ban on all lawfully-possessed standard-capacity ammunition feeding devices that hold more than 10 round; exemption for retired police
  • AB 857 (Cooper) requires that serial numbers be placed on un-serialized firearms (in some cases going back at least 50 years) and on all new owner-assembled (“home-built)” firearms.

3. Some sections of California’s byzantine gun control laws might be even more confusing on January 1, 2017.

As noted above, Proposition 63 is already the law of the state.

And the California Constitution states that the Legislature may only “amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.”  Cal. Cont. Art. II, Section 10(c).

Proposition 63 expressly provided that its provisions “may be amended [only] by a vote of 55 percent of the members of each house of the Legislature and signed by the Governor,” but only “so long as such amendments are consistent with and further the intent of this Act.”  California Proposition 63 (2016), § 13.

Why does this matter? Because some gun bills (SB 1446 and SB 1235 in particular) added to or changed some of the same sections of law that Proposition 63 did.

This might be a bit confusing, but hang in there:

1. In July, Governor Brown signed 7 new gun bills, including SB 1235 and SB 1446.

2. None of those were “urgency statutes” that immediately go into effect. So, the additions or changes in those bills don’t become statutes until January 1. (Cal. Const. Art. IV, § 8.)

3. Proposition 63 passed on November 8, went into effect (see part 1 of this post, above), and the statutes were added or changed accordingly.

4. On January 1, 2017, SB 1235 and SB 1446’s provisions will become statutes.

5. SB 1235 and SB 1446 were passed by “55 percent of the members of each house of the Legislature” and were “signed by the Governor.”

6. No one knows if Gavin Newsom, the DOJ, Legislative Counsel, and the Secretary of State all believe that SB 1235 and SB 1446’s “amendments” to the Proposition 63-enacted statutes are “consistent with and further the intent of” Proposition 63.

And there are significant differences between the respective bills’ statutory exemptions and the exemptions found in Proposition 63, as another example of how things might be more confusing going forward. In some cases, even the criminal liability and the dollar amount for fines are different.

Even worse is that, in some cases, there will be two different Penal Code sections with the same number.

Indeed, there are now two very slightly different Penal Code Section 30680. (Seriously.)

Section 30680, as added by AB 1135, states:

Section 30605 does not apply to the possession of an assault weapon by a person who has possessed the assault weapon prior to January 1, 2017, if all of the following are applicable:

(a) Prior to January 1, 2017, the person would have been eligible to register that assault weapon pursuant to subdivision (b) of Section 30900.

(b) The person lawfully possessed that assault weapon prior to January 1, 2017.

(c) The person registers the assault weapon by January 1, 2018, in accordance with subdivision (b) of Section 30900.

But the Section 30680 language added by SB 880 states:

Section 30605 does not apply to the possession of an assault weapon by a person who has possessed the assault weapon prior to January 1, 2017, if all of the following are applicable:

(a) Prior to January 1, 2017, the person was eligible to register that assault weapon pursuant to subdivision (b) of Section 30900.

(b) The person lawfully possessed that assault weapon prior to January 1, 2017.

(c) The person registers the assault weapon by January 1, 2018, in accordance with subdivision (b) of Section 30900.

(Emphasis added for clarity.)

Notice the difference in subdivision (a)? How about the little chaptering note under the first version of Section 30680? (“See similar section added by Stats. 2016, Ch. 48.“)

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Obviously, our policy and legal teams are actively evaluating issues like these…

Penal Code Section 30900(b)(1), which was added by SB 880 and AB 1135, states that:

Any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined in Section 30515, including those weapons with an ammunition feeding device that can be readily removed from the firearm with the use of a tool,” – this is how they wrap up post-SB 23 “Bullet Button” (or magazine locking device)-equipped rifles and pistols, in conjunction with Section 30515(b) – “shall register the firearm before January 1, 2018, but not before the effective date of the regulations adopted pursuant to paragraph (5), with the department pursuant to those procedures that the department may establish by regulation pursuant to paragraph (5).

So, effective January 1, 2017, what will Section 30515 say an “assault weapon” by characteristics (sometimes called “evil features”) is?

(a) Notwithstanding Section 30510, “assault weapon” also means any of the following:

(1) A semiautomatic, centerfire rifle that does not have a fixed magazine but has any one of the following:

(A) A pistol grip that protrudes conspicuously beneath the action of the weapon.
(B) A thumbhole stock.
(C) A folding or telescoping stock.
(D) A grenade launcher or flare launcher.
(E) A flash suppressor.
(F) A forward pistol grip.

(2) A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.

(3) A semiautomatic, centerfire rifle that has an overall length of less than 30 inches.

(4) A semiautomatic pistol that does not have a fixed magazine but has any one of the following:

(A) A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer.
(B) A second handgrip.
(C) A shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning the bearer’s hand, except a slide that encloses the barrel.
(D) The capacity to accept a detachable magazine at some location outside of the pistol grip.

(5) A semiautomatic pistol with a fixed magazine that has the capacity to accept more than 10 rounds.

(6) A semiautomatic shotgun that has both of the following:

(A) A folding or telescoping stock.
(B) A pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip.

(7) A semiautomatic shotgun that has the ability to accept a detachable magazine.

(8) Any shotgun with a revolving cylinder.

(b) For purposes of this section, “fixed magazine” means an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.

The DOJ’s proposed regulations say that “The Department will not register a firearm as an assault weapon if the firearm is featureless,” and “The Department will not register a firearm as an assault weapon unless the firearm is fully assembled and fully functional.”

So, law-abiding California gun owners can register their “fully assembled and fully functional” “Bullet-Button Assault Weapons”, but only if the”fully assembled and fully functional” “Bullet-Button Assault Weapon” firearm was possessed before January 1, 2017.

5. All lawfully possessed “Bullet-Button Assault Weapons” must be registered before January 1, 2018.

SB 880 and AB 1135 both added Section 30680. (See part 3, above, on the Section 30680 mess…)

Section 30605 does not apply to the possession of an assault weapon by a person who has possessed the assault weapon prior to January 1, 2017, if all of the following are applicable:

(a) Prior to January 1, 2017, the person was eligible to register that assault weapon pursuant to subdivision (b) of Section 30900.
(b) The person lawfully possessed that assault weapon prior to January 1, 2017.
(c) The person registers the assault weapon by January 1, 2018, in accordance with subdivision (b) of Section 30900.

Penal Code Section 30605 is where the law establishes what the penalty for unlawful possession of an “assault weapon” is. It states:

(a) Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Notwithstanding subdivision (a), a first violation of these provisions is punishable by a fine not exceeding five hundred dollars ($500) if the person was found in possession of no more than two firearms in compliance with Section 30945 and the person meets all of the following conditions:

(1) The person proves that he or she lawfully possessed the assault weapon prior to the date it was defined as an assault weapon.
(2) The person has not previously been convicted of a violation of this article.
(3) The person was found to be in possession of the assault weapon within one year following the end of the one-year registration period established pursuant to Section 30900.
(4) The person relinquished the firearm pursuant to Section 31100, in which case the assault weapon shall be destroyed pursuant to Sections 18000 and 18005.

So, someone who has a “Bullet-Button Assault Weapon” isn’t subject to the criminal liability in Section 30605 if they meet all of the conditions in Section 30680 and register the assault weapon “by January 1, 2018, in accordance with subdivision (b) of Section 30900.”

For more on the DOJ’s proposed regulations and registration process, see our “Bullet-Button Assault Weapon” page here.

6. Many un-serialized firearms (like “80% lower” builds) will eventually need to be “serialized” and registered–then they’ll be prohibited from sale or transfer.

AB 857 will require (with limited exceptions) that any firearm without a serial number, and any firearm assembled from, e.g., an “80% lower”, have an engraved or permanently affixed” “unique serial number or other mark of identification” issued by the California Department of Justice.

And, making matters worse, the law says that “The sale or transfer of ownership of a firearm manufactured or assembled pursuant to this section is prohibited.”

Here’s the Legislative Counsel’s summary of the bill (with some paragraph breaks added for clarity):

This bill would, commencing July 1, 2018, and subject to exceptions, require a person who manufactures or assembles a firearm to first apply to the department for a unique serial number or other identifying mark, as provided.

The bill would, by January 1, 2019, and subject to exceptions, require any person who, as of July 1, 2018, owns a firearm that does not bear a serial number to likewise apply to the department for a unique serial number or other mark of identification.

The bill would, except as provided, prohibit the sale or transfer of ownership of a firearm manufactured or assembled pursuant to these provisions.

The bill would prohibit a person from aiding in the manufacture or assembly of a firearm by a person who is prohibited from possessing a firearm. The bill would make a violation of these provisions a misdemeanor.

By creating a new crime, this bill would impose a state-mandated local program.

The bill would require the department to issue a serial number or other identifying mark to an applicant meeting specified criteria and would allow the department to charge a fee to recover its costs associated with assigning a distinguishing number or mark pursuant to the above provisions.

The DOJ hints at the serialization process in its proposed regulations on “Bullet-Button Assault Weapons” (going to unserialized firearms that are to be registered as “assault weapons”).

If you have any 80% builds or unserialized firearm, or intend to assemble a firearm from an unserialized receiver, you’re definitely going to want to read all of the law changes and, if necessary, get specific legal advice on how to comply.

Importantly, a gun owner cannot use an “80%” build to configure any “Bullet Button Assault Weapon” on or after January 1, 2017.

7. The DOJ might (and probably will) push new regulations that go beyond the statutes.

Yesterday, we sent out an alert about the California DOJ’s new “Bullet Button Assault Weapon” regulations.

Apparently, once a firearm is a “Bullet-Button Assault Weapon,” you’re stuck with it unless you reconfigure the firearm and de-register it as an AW: “The release mechanism for an ammunition feeding device on an assault weapon registered pursuant to Penal Code section 30900, subdivision (b)(1) shall not be changed after the assault weapon is registered.”

And, earlier this week, we reported that DOJ pulled their proposed “emergency” large-capacity magazine ban regulations….but only after we, other gun rights groups, and thousands of pro-gun patriots fought back and fiercely opposed them.

Like death and taxes, the one thing California gun owners can inevitably count on is that the anti-gun DOJ will use (and abuse) its authority to force gun regulations down our collective throats.

But even when the DOJ goes beyond its legal authority to create regulations, it has to be challenged in court. And, except in very rare cases (and especially with “gun” cases), lawsuits that challenge the DOJ’s rulemaking or policies and practices can take many months, if not years, to fully resolve.

For example, back in 2014 the DOJ (without notice) decided to change its interpretation of state law about handgun sales, prohibiting dealers from selling more than 1 handgun in any 30-day period in spite of a clear statutory exemption (at Section 27353(b)(9)) for law-abiding people who have both a Certificate of Eligibility and Type 3 (Curio & Relic) FFL.

Some gun owners who were affected sued the DOJ in May 2014 (Doe v. Attorney General Kamala Harris). Over two years later now, that case is on appeal and probably won’t be decided by the Court of Appeal until late 2017. And that may not be the end of it – whichever party loses there will almost certainly petition the California Supreme Court to review the case and make a final decision.

These kinds of legal actions to block or strike down the DOJ’s improper rulemaking or policies may not be the major federal Second Amendment cases that make the news every day. But they are, more often than not, complex legal actions that cost significant sums in legal fees. And they are also extremely important to gun rights and protecting law-abiding gun owners from hostile executive over-reach and agencies who think they can make up the law whenever they feel like it.

8. There is no ‘magic wand’ to fix California’s gun control laws – it’s going to take a LOT of commitment, work, time, and money.

President-elect Donald Trump’s victory over Hillary Clinton is an unquestionably significant achievement for gun owners across the United States. But it is not a magic wand that will solve all of our problems.

On the federal legislative side of things, some sources are telling us that the GOP won’t risk taking on major gun bills in Congress before the 2018 mid-term elections because they would prefer to increase their hold of the Senate to 60 or more senators before doing so.

But even if they were so inclined to act before 2019, there are serious legal issues to methodically tackle in any major pre-emption legislation (for example, firearms bans or national reciprocity), including federalism concerns, constitutional and statutory authority, and so on. These will not be easy tasks, nor will our opposition allow them to go unchallenged.

The best thing President-Elect Trump could do in the short term (i.e. within the next year) is to immediately nominate a pro-Second Amendment rights justice to the Supreme Court to fill (as if anyone could) Justice Scalia’s seat, restoring the 5-4 Heller balance of power, then immediately appoint pro-Second Amendment jurists to the more than 100 federal court vacancies within the circuit and district courts.

And we badly need the Supreme Court to start taking Second Amendment cases again. But more than that, we need a very strong decision overturning a lower court (like the 9th Circuit) that sends a clear “you’re wrong, and knock it off NOW!” message to all of the judges playing games with our constitutional rights.

Ultimately, most of the battles for gun rights in places like California, New York, Hawaii, Maryland, Connecticut, and New Jersey will be in the federal courts. And, with some notable exceptions, it has been a very rough ride for our side so far.

But there is cause for hope, and we’re cautiously optimistic that FPC and other pro-gun organizations will be able to successfully restore Second Amendment rights and eventually strike down many of the issues Californians will be facing in 2017.

9. We MUST keep fighting hard to stop new laws while the lawsuits work their way up to the Supreme Court.

Here’s a shocker: California is solidly blue. Proposition 63 passed with 63% of the vote.

And, even though it might sound like a good idea, there is just no practical way that gun rights supporters could fund and pass any serious referendum initiatives, ballot initiatives, or state constitutional amendments.

Politically, in California, the best offense is a strong policy program defense that stops as many new gun control schemes as possible while the major Second Amendment cases work their way up to the Supreme Court.

We MUST continue to block bills in the Legislature and push Second Amendment lawsuits up to the Supreme Court.

With Congress locked up for at least the next 2 years, anti-gun groups are shifting their tens of millions of dollars of annual expenditures and significant infrastructure – including millions of dollars of pro bono legal help from anti-gun lawyers, as well as the mainstream media and millions of dollars of free coverage – to the states and municipalities.

This is not a rumor or speculation. It’s already happening. And as you know, lawsuits take time – often many years – to fully resolve.

We gun owners and Second Amendment advocates must continue to work as hard as we can to block their efforts to pile on new gun control laws while our other legal action works through the (hopefully much better, soon) federal courts.

In addition to joining FPC as a member of our Grassroots Army, here are some other organizations that you should consider joining and supporting to fight against California’s gun control laws:

If you can, join them all, then STAY ENGAGED and FIGHT ON!

10. Know your rights(!), don’t talk with the police or DOJ without a lawyer present, and have a firearms law attorney on speed dial (just in case).

Notably, none of the gun bills passed in 2016 provided for public education and outreach.

Now, with all of the added and confusing law changes, it’s even more possible that you or someone you know might face a serious firearms-related legal issue.

And it’s also possible that a law enforcement officer might not fully understand the law him or herself (again, no education or outreach), and you could face the seizure of property, arrest, or other legal liability.

So, in case of a firearms-related law enforcement encounter, detainment, or arrest while in California:

1. Say that you’re exercising your right to remain silent and contact an attorney, then remain silent.

2. Contact an attorney for specific legal advice.

3. Never consent to a search, even if the officer is polite. (Important: Make sure the other people you live with know not to give consent!)

4. REMEMBER: YOU ARE NOT REQUIRED TO VOLUNTEER INFORMATION OR OPEN LOCKED CONTAINERS IN THE ABSENCE OF A WARRANT!

We encourage those who require immediate legal assistance to contact one of the attorneys listed below or other competent counsel. Here are some expert firearms law attorneys who can be engaged to provide you specific legal advice should you ever need it:

Sacramento / Northern California

Adam Richards
Rothschild Wishek & Sands LLP
P: 916.444.9845
arichards@rwslaw.com

SF Bay Area

Donald Kilmer
Law Offices of Donald Kilmer
P: 408.264.8489
don@dklawoffice.com

Southern California

Jason Davis
Davis & Associates
T: 949.436.4867
jason@calgunlawyers.com

Clint Monfort
Michel & Associates
P: 562.216.4444
cmonfort@michellawyers.com

Bruce Colodny
Law Offices of Bruce Colodny
P: 800.560.8000
Bruce@GunLaw.com

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