- Gun laws in California
The gun laws in
California[ [http://ag.ca.gov/firearms/ California Department of Justice, Bureau of Firearms main page] ] [ [http://ag.ca.gov/firearms/forms/pdf/Cfl2007.pdf California Department of Justice — California Firearms Laws] ] are some of the most restrictive in the United States.
Assault Weapons Control Act of 1989
Roberti-Roos Assault Weapons Control Act of 1989, its subsequent augmentation in 1999, and the .50 Caliber BMG Regulation Act of 2004has led to many restrictions on semi-automatic firearms. In addition to a lengthy list of specific firearms that are banned by name, the following firearms are banned by characteristic:
* "(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and 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 [762 mm] ."
* "(4) A semiautomatic pistol that has the capacity to accept a detachable magazine and 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 his or her 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."
There are also numerous other laws, such as prohibition on possession of tracer ammunition, handgun armor piercing ammunition, .50 BMG rifles, and the sale or transfer of magazines with a capacity of more than 10 rounds. All rifles are normally exempt for the original owner if properly registered at the time of the acts which prohibited them.
In addition, the law states that any weapon that is part of the AR-15 series or AK series is also an assault weapon, regardless of manufacturer; this dates back to 1989 ban, and was confirmed in the
Kasler v. Lockyerdecision, filed 6/29/2000. [ [http://www.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/kasler_v_lockyer.txt Kasler v. Lockyer, Cal.4th (2000)] ] However, the California Supreme Court declared the identification of assault weapon by series membership to be too dubious and difficult for the average citizen or even trial court to make without specific and clear model identification guidelines. The court thus set some specific requirements for the "series" identification portion of the law in their ruling of Harrott v. County of Kings, filed 6/28/2001. [ [http://www.rkba.org/judicial/harrott-kings-county-casupct.pdf Harrott v. County of Kings, California Supreme Court (2001)] ] This decision required banned firearms to be specifically listed by make and model in California Code of Regulations (the "Kasler list"), [ [http://ag.ca.gov/firearms/regs/aw.pdf California Code of Regulations, Title 11, Division 1, Chapter 12.9: Assault Weapons Identification] ] (it did not address assault weapons defined by features.) Thus, only firearms specifically listed by exact combination of manufacturer and model name, or conforming to explicit exterior characteristics (such as a pistol grip or folding stock in combination with a detachable magazine) can be banned under current legislation.
Once it was realized the
California Department of Justice(CA DOJ) has not updated the "Kasler list" in the five years after Harrottdecision, many Californians found they could legally purchase and possess AR and AK rifles not yet officially identified as "series" members. As of February 2006, over 10,000 "off-list" receivers (frames) for such rifles have been legally imported to, and purchased within, California. The only requirement for these receivers are that the combination of make and model is not explicitly listed as banned, and as long as the owner does not add certain "characteristic features" turning the firearm into an assault weapon (i.e. pistol grip, flash suppressor, etc). These characteristic features can be used, however, if a nondetachable 10-round (or less) magazine, conforming in the converse to the California Code of Regulations section 5469, formerly section 978.20, definition of detachable magazine, [ [http://ag.ca.gov/firearms/regs/sb23.pdf California Department of Justice Regulations for Assault Weapons and Large Capacity Magazines] ] is affixed to such "off-list" rifles. These off-list rifles can also be used without a pistol grip, folding stock or flash hider, in which case it is legal to own and use them with detachable magazines. (California Code of Regulations section 978.20 was changed without regulatory effect renumbering section 978.20 to section 5469 filed 6-28-2006)
The CA DOJ produced a report from the Ferranto Commission in response, [ [http://calgunlaws.com/Docs/ASSAULT%20WEAPONS/Articles/commision%20changes.pdf California Department of Justice Memorandum on Commission Changes, December 20, 2005] ] intimating that this list will be updated in early 2006; as of December 2006, it had not done so. On February 1, 2006, the CA DOJ also issued a controversial memorandum about this subject; critics say the described actions are not founded or supported within statutory law in Penal Code 12275-12290. This memo stated that once off-list "series" firearms are declared and registered as assault weapons, they will not be able to have characteristic features added or fixed magazines removed. This is being challenged by pro-gun groups, since there is no criminal violation in the California Penal Code for adding or changing features to a legally-acquired, registered assault weapon.
November 8, 2005, San Franciscovoters enacted Proposition H, a total ban on the manufacture, sale, transfer or distribution of firearms or ammunition in San Francisco, as well as a ban on the possession of handguns within the city by San Francisco residents (excepting peace officers, security guards and the like). The ban did not prohibit possession of weapons other than handguns, nor did it prohibit residents of other cities from possessing handguns in San Francisco. While this measure made San Francisco the third major U.S. city, following Washington, D.C.and Chicago, to enact a ban on handguns, San Francisco's ban extended further, not implementing a grandfather clause found in Chicago's and Washington D.C.'s laws that protected existing gun owners. Proposition H stated that handgun owners in San Francisco must turn over their handguns to the police by the end of March 2006, have them confiscated, or move outside the city limits. In June 2006, San Francisco Superior CourtJudge James Warrenstruck down Proposition H, asserting that under California law local officials do not have the authority to ban handgun ownership by law-abiding citizens. On January 9, 2008, a California appellate court upheld Judge Warren's decision. [ [http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/01/10/BAQIUC21G.DTL Egelko, Bob. "Municipalities Can't Ban People from Owning Handguns, Court Rules", "San Francisco Chronicle", January 10, 2008] ] The National Rifle Association(NRA) opposed the ban from its inception.
Issues with the California laws
As with most gun laws, there is much debate about the legality and effectiveness of California's gun laws. However, both sides agree that there are many firearms that are legal in California that are functionally identical to prohibited weapons, and evidence of the effectiveness of such laws is hard to come by. Both sides also agree that the law needs to be revised to make it more clear so ordinary people can understand what constitutes an assault weapon and what does not.
When the act was being debated in the legislature, the Association of California Cities, a prominent supporter of that act, claimed that California law enforcement agencies feared that some groups in large cities might undertake successful rebellions against civil order if armed with modern weapons. In spite of hundreds of thousands of such "assault weapons" in the public hands for some decades, no such events have ever occurred anywhere in the USA. Prominent members of black churches in L.A., as well as Senators Boxer (D-CA) and Feinstein (D-CA), have claimed that the only real purpose of such weapons is to kill large numbers of people, and therefore there is no reason to permit them. Some gun rights advocates argue that the police commonly carry such weapons in their cruisers and that if the only real purpose of such weapons is to kill large numbers of people then the police should not be carrying them either.
Some gun rights advocates claim that the primary uses of these firearms in civilian hands has been, and continues to be the sport of recreational target-shooting (there were no reported deaths or injuries related to the sport of target shooting in 1999, 2000, and 2001). Most gun rights supporters base their authority on the Second Amendment, which declares the necessity for "a well regulated militia", and prohibits infringement of "the right of the people to keep and bear arms".
Based on engineering differences, ease of modification, and their high level of expertise, California Rifle and Pistol Association (CRPA) members see nothing special about assault weapons except their appearance, which is exactly what the gun collectors want, and what the legislature wants to prohibit. The legislature has thus been accused of being paternalistic and somewhat frivolous for creating the Assault Weapons Control Act. Another example of politically based gun laws is the ban of all ammunition with the word "Magnum" in the name by some parts of Los Angeles [ [http://findarticles.com/p/articles/mi_m0BQY/is_7_47/ai_75287344 "Bite The Bullet" Guns Magazine, July 2001] ] , when in fact the word Magnum is rather meaningless in ammunition nomenclature, with its reputation largely based on movies, not ballistics.
Gun rights advocates argue that the only real purpose of these "assault weapons" bans is to make the public used to the idea that firearms can be banned by government action and the public simply must accept any bans that the government chooses to impose in the future. According to gun rights advocates, these bans have purely symbolic and propaganda purposes with no chance of reducing violent crime.
Supporters of the ban counter that the banned features of these weapons were designed for military use. Supporters also argue that the features that define an "assault weapon" make it useless for hunting and less effective for target shooting, but more effective in combat. Gun rights advocates counter that this view exhibits an ignorance of what is involved in, e.g., competitive target shooting, and the features which are desirable in a gun intended for that pursuit.
They point out that the military design heritage of the banned "assault weapons" may make for a more rugged and durable gun, parts are cheaper and more plentiful. The weapons are generally easier to take apart and clean (field strip). They assert that some exterior features on some firearms targeted for ban - such as a pistol grip or a folding stock - lend only a cosmetic similarity to military weapons, and that the removal of these features simply restricts law abiding citizens' rights without reducing crime.
Concealed Carry Laws
California law [ [http://caag.state.ca.us/firearms/dwcl/12050.htm California Penal Code Section 12050] ] provides that the Sheriff of a county or a city Police Chief may issue a license to carry a concealed weapon upon proof that the person applying is of good moral character and that good cause exists for the issuance [ [http://www.californiaconcealedcarry.com/gettingstarted/ccwarticle.html CaliforniaConcealedCarry.com -- Concealed Weapon Permits (CCW) in California] ] . While it is generally believed to be extremely difficult to obtain a license to carry a concealed weapon (CCW) in California, the difficulty varies greatly by city and county of residence [ [http://www.californiaconcealedcarry.com/counties.html CaliforniaConcealedCarry.com -- Counties and Cities] ] . In some rural counties, qualified applicants are usually successful in obtaining a license, while some cities and counties, such as San Francisco and Los Angeles, are extremely restrictive in what they perceive to be "good cause".
In some of the more restrictive cities and counties, licenses tend to be issued mainly to "Friends of the Sheriff" (or Police Chief), celebrities and campaign donors. Some of these departments are now being challenged in Federal Lawsuits, under the Equal Protection clause of the 14th Amendment [ [http://www.californiaconcealedcarry.com/legal.html CaliforniaConcealedCarry.com -- Current Legal Cases] ] .
Some argue [ [http://www.calccw.com California CCW Discussions on CCW Issuance Policies] ] that the California system for CCW issuance fosters systematic discrimination of applicants, as it has been publicized that numerous celebrities and government officials have been issued CCW licenses in cities and counties where the general public have been consistently denied.
Open Carry Laws
Personal possession (i.e. carry) of a loaded firearm is prohibited in incorporated areas (such as inside city limits) or prohibited areas of unincorporated territory without a license to carry or other exemption provided for by law. [ [http://caag.state.ca.us/firearms/dwcl/12020.php California Penal Code § 12031 — Unlawful Carrying and Possession of Weapons] ] A license to carry "loaded and exposed" may be issued by a Police Chief or County Sheriff in a county with population of less than 200,000 persons at the last census. [ [http://caag.state.ca.us/firearms/dwcl/12050.htm California Penal Code § 12050 — Licenses to Carry Pistols and Revolvers] ] No license or permit is required to openly carry a loaded firearm in unincorporated areas where discharge is not prohibited by local ordinance.
Despite these restrictions, there is no section of the California penal code that specifically prohibits open carry of an unloaded handgun (though possession may be restricted or prohibited in certain areas such as a State Park (CCR Title 14, Div.3, chap. 1, s 4313 (a), in a school zone (PC626.9) or federal properties like a Post Office or National Park (36 C.F.R. 2.4(a)).
Carrying a loaded magazine separate from the handgun is also not prohibited under the penal code (Subdivision (g) of California Penal Code 12031 defines what constitutes a loaded weapon).
In the case of "
People v. Clark" (1996) a shotgun shell attached to the shotgun, although not chambered or placed in a position where it was able to be fired, was declared to be legal under California law and the charge of having a loaded firearm against Clark was dismissed.
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