[vsvo]

Originally Posted by NousDefionsDoc

Good Gawd y'all start another thread and somebody post some gun pics!

Sorry, Doc. How about some wheel guns, for wheel people?

Originally Posted by Roguish Lawyer

Do you think the position you've outlined is the only possible position a court might take? Are there no other arguments a prosecutor might make?

I'll respond here until y'all with the God Guns split the thread.

The DA has several possible arguments. First, the modifications to the rifle take it outside the umbrella of the “Colt AR-15 series” as listed in §12276(a)(5). Models within a “series” should only be “variations, with minor differences,” of the models listed, according to §12276(e). Replacing an upper receiver with a new receiver, bolt, bolt carrier, charging handle, barrel, hand rails, and rear sight does not result in “minor differences" in relation to the original rifle. Furthermore, the Colt with the LMT upper looks significantly different than any of the Colt rifles pictured on pp. 8, 62-67 of the Assault Weapons Identification Guide promulgated by DOJ.

The court in Harrott chose to sidestep the question of what exactly “minor” means within the context of §12276(e), content to let the Attorney General maintain a list of banned weapons. Therefore, the DA can try to press the argument on this open question.

Second, the legislative intent was clearly to regulate and restrict the use of assault weapons. The list mechanism was a compromise to get the legislation passed, since there was strong opposition to a generic definition of an assault weapon. “[T]he Legislature was not constitutionally compelled to throw up its hands just because a perfectly comprehensive regulatory scheme was not politically achievable.” Kasler, 2 P.3d at 590. However, the lawmakers were aware that the list approach was limited. “[T]he Legislature explained that the add-on provision [§12276.5] was intended to compensate for the inherent limitations of the list approach.” Id. at 590. The list approach perversely resulted in California citizens rushing to buy lower receivers stamped with manufacturers’ names (e.g., Stag/CMT, Noveske, etc.) not listed on the Attorney General’s list. This unintended loophole resulting in potentially more assault weapons entering the state was predicted by then Attorney General Van de Kamp. Id. at 590.

Third, you have modified the rifle to add an additional banned feature, i.e. flash suppressor. The AWCA is silent on the issue of adding banned features. However, that statutory silence, coupled with the clear legislative intent to restrict these features, strongly implies that the legislature would not be in favor of allowing the addition of banned features, even to an already registered rifle.

The response to these arguments is that Harrott is the law of the state. Citizens are only required to consult the list promulgated by the Attorney General. The list states simply “Colt AR-15;” therefore, how would an ordinary citizen look at his rifle with “Colt AR-15” stamped on the lower receiver with the same serial number which he had legally registered, and determine that the rifle was a different weapon than the one already registered? Harrott clearly states that citizens are not expected to contort themselves trying to figure it out. If the Attorney General believes that this reconfigured weapon is different than a Colt AR-15, there is a statutory process to add it to the list. Harrott affirmed the authority of the Attorney General to determine this, a DA and trial court cannot make this determination. The AG would have to come up with a better description than “Colt AR-15,” such that an ordinary citizen can simply “consult” the list and determine if his rifle in included or not.

If the Legislature believes that the current statute does not deliver the desired results, it should amend the law. As it stands now, you are in compliance with the law. Your case is distinguished from Harrott because your lower receiver is already registered as an assault weapon with the state.

To the issue of the unlisted lower receivers, citizens would be prevented from turning them into assault rifles because of the §12276.1(a) restrictions on banned features. As the Kasler court confirmed, there are three ways to identify an assault weapon in California.