[vsvo]

Originally Posted by Roguish Lawyer

But when you change the upper receiver, are you making a new gun for purposes of the statute? Does the pre-ban gun become a post-ban gun? If you change a key characteristic like adding a flash suppressor?

The question is whether assembling a different upper receiver containing a feature, i.e., flash suppressor, banned under the Roberti-Roos Assault Weapons Control Act of 1989 (AWCA), onto a legally registered lower receiver creates a new weapon under the AWCA.

What is an assault weapon?

Although under federal law a receiver comprises a firearm, California specifically defines what constitutes an assault rifle under the AWCA. First, §12276(a) of the statute identifies by model name various rifles, including the “Colt AR-15 series.” CAL. PENAL CODE §12276(a)(5). “Series” is defined to include “all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer.” CAL. PENAL CODE §12276(e). The statute was amended in 1999 via Senate Bill 23 to further define an assault weapon by characteristic.

CAL. PENAL CODE §12276.1(a)

Notwithstanding Section 12276, "assault weapon" shall also mean any of the following:

(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and any one of the following:

1. A pistol grip that protrudes conspicuously beneath the action of the weapon.
2. A thumbhole stock.
3. A folding or telescoping stock.
4. A grenade launcher or flare launcher.
5. A flash suppressor.
6. A forward pistol grip.

Finally, there is a provision for the Attorney General to petition a state superior court to add a firearm to the list if it is “another model by the same manufacturer or a copy by another manufacturer of an assault weapon…which is identical to one of the assault weapons listed…except for slight modifications or enhancements including, but not limited to…” CAL. PENAL CODE §12276.5(a)(1).

California citizens sued to strike down the AWCA on various constitutional grounds. In Kasler v. Lockyer, 2 P.3d 581 (Cal. 2000), the Supreme Court of California upheld the AWCA. The court held that SB 23 was additive, and did not supercede §12276. Id. at 584. Thus, there are three ways a rifle may be deemed an assault rifle. The court also addressed the question of what constituted “slight modifications,” holding that “concerned citizens need not struggle with the question whether, for example, a particular firearm is identical to one of the listed assault weapons except for slight modifications. The citizen may simply consult the amended list.” Id. at 598. The amended list is contained in the California Code of Regulations promulgated by the Attorney General. CAL. CODE REGS. tit. 11, §§ 979.10, 979.11 (2006).

The second landmark case pertaining to the AWCA is Harrott v. County of Kings, 25 P.3d 649 (Cal. 2001). Harrott is an attorney who filed suit to force the Kings County Sheriff’s Department to deliver to him an AK-47 type rifle from a gun collection which the Sheriff was holding. Harrott had received the collection from a client as payment for legal services. The Sheriff refused to release the rifle on the basis that it was an assault weapon banned by the AWCA. Harrott argued that his AK-47 was not one of the types specifically listed under §12276.

The Supreme Court of California upheld the authority of the Attorney General, ruling that the Sheriff, or any trial court, may not deem a firearm an assault weapon under §12276, unless the Attorney General had first included the model in the list of banned weapons. Harrott, 25 P.3d at 656. The court also reaffirmed the authority of the Attorney General to determine the status of certain guns by simply identifying them as assault weapons, but only if they belonged to the AK-47 and AR-15 series. Id. at 660. To determine whether their weapons were governed by the AWCA, “ordinary citizens need only consult the California Code of Regulation.” Id. at 658. The court also suggested that citizens should consult the Assault Weapons Identification Guide promulgated by DOJ.

Is it a new gun?

First, I think the AWCA and Harrott have made the terms “pre-ban” and “post-ban” obsolete in California. You either have an assault weapon as defined in §12276 or the amended list in the regulations, or you don’t. And that weapon is either legally registered, or it is not. Even if you owned the rifle before June 1, 1989, as soon as the statute went into effect, you had to register the gun.

Registration requires the serial number, make, model, type, and caliber, among other things. Swapping uppers on a registered lower arguably does not make a new gun. The serial number, caliber and model are the same. Harrott holds that only the Attorney General can identify a banned assault weapon, via the amended list posted in the regulations. All that list specifies is “Colt AR-15” including all the various models.

The thrust of the statute is identification and registration; once you have a registered weapon, the statute does not say too much about what you can do with it, beyond where you could use it. Your rifle has already been identified as an assault weapon and duly registered. You are an ordinary citizen, not a manufacturer. An ordinary citizen would be hard pressed to look a Colt lower with an LMT upper on it and distinguish it from the “Colt AR-15” identified in the regulations.

As to the addition of the flash suppressor, I will go back to my earlier point. It only takes one feature from §12276.1(a)(1) to make the rifle an assault weapon. Once you’ve crossed the line into evil, there are not different degrees of evil. It doesn’t matter if you have one banned feature, or five. The rifle has already been registered, and since my position is it is not a new rifle, it is legal with the flash suppressor device.

Conclusion

I don’t think you have a new gun, because I don’t see how swapping the upper on a registered lower gives you a different gun that could be listed in the regulations. The key point is that your lower is identified on the list and has already been registered as an assault weapon. Under Kasler and Harrott, citizens are only required to consult the list posted in the regulations to determine what is an assault rifle.

It would not hurt to write to the Attorney General to request a letter ruling. Even if DOJ finds your gun illegal, they must go through the process of petitioning a superior court to get it added to the list. You would then have an opportunity to register the “new” rifle.