Monday 30 Jan 2006
William M. Wiese Jr.
San Jose, CA
Note: You should take legal advice from an attorney only. I am not an attorney. However, I and many others have spent significant time researching the material below. Additionally, various communications from California DOJ senior staff, and reposted on forums like www.Calguns.Net, confirm correctness of assertions below. The salient points of the Harrott decision are also quite readable even by non-lawyers.
1. What is an assault weapon in California? How does the Federal definition differ from California’s?
There’s no more Federal definition of the term assault weapon; assault weapons simply do not exist anymore at a Federal level. The 1994 Federal “Crime Bill” banning various so-called semiautomatic assault weapons and firearm configurations expired (“sunset”) in September 2004. The fact that the 1994 Federal ban had zero effect on crime reduction helped bring the sunset about.
[Sometimes terms preban and postban are still bandied about; traditionally these are in reference to the Federal ban and not the varying individual state bans. Due to the Federal sunset, these really have no legal relevance, and are mere descriptive terms. Preban meant guns made before Sept 13, 1994, or configurations thereof; postban meant guns built after this date, or configurations thereof, but before 14 Sep 2004.]
More generally, postban broadly referred to guns that were semiautomatic rifles without flash hiders, folding stocks, or bayonet lugs - thus allowing them to have pistol grips and detachable magazines under the Federal law. The “Crime Bill” had allowed grandfathering of preban semiautomatic assault weapons, with a full complement of “evil features”) so they could be possessed, bought, sold, traded and used – but allowed only commercial manufacture/sale of newly-built guns in postban configuration. (Further new manufacture of high capacity magazines for sporting/commercial use was also banned; existing “hicap” magazines at the time were grandfathered and could be bought, sold, traded, etc. The Federal ban on hicap magazines has similarly expired.)
However, the state of California recognizes various assault weapon definitions. While some concepts partially overlapped those encompassed in the now-expired Federal ban, they differ substantially in many aspects. Some such firearms in California were initially banned due to the 1989 Roberti-Roos Assault Weapon Control Act (AWCA ’89); others were banned due to the language in this law being interpreted in two court decisions. Still another group is defined by “evil features”, and banned by legislation passed in 1999 (“SB23”). In California, semiautomatic centerfire rifles with detachable magazines cannot have any other “evil features” like pistol grips, flash hiders, folding or thumbhole stocks, etc. Thus, for example, California M1A rifles have muzzle brakes instead of original flash hiders.
2. What are the three California assault weapon classifications?
The original AWCA ’89 (“Roberti-Roos”) banned over fifty specific brands and models of firearms – while mostly rifles, some were pistols and shotguns.
Many other similar models from other manufacturers existed at the time, these were not banned: AWCA ’89 banned only specifically named assault weapons. A few of these weapons, in fact, were not even pistol-gripped ‘ugly’ guns: for example, the Springfield Armory BM59 (essentially a Garand with detachable magazine), and the SKS with detachable magazine were both banned by this act. Yet these firearms are topologically similar to current California-legal detachable-magazine rifles like the M1A, Ruger Mini 14, and KelTec SU16.
While the categories below have no real penal code significance in and of themselves, they are used as common terms of reference to describe various assault weapons.
Category I assault weapons are those specifically named by make and model in Penal Code §12276 (and echoed in California Code of Regulation §979.10). These firearms are assault weapons at even the bare receiver/frame level – regardless of any particular characteristic features. Thus an Uzi receiver would be banned by name, but a similar Group Industries receiver would be legal (as long as offending Category III features were not added).
Category II assault weapons consist of the AR15 and AK “series” of firearms. While AR and AK series were named in the original Roberti-Roos laws, due to various key court decisions about “series” membership it’s useful to refer to them as their own category, those these guns really have just fallen back into the Roberti-Roos list once listed by DOJ.
Category III assault weapons are defined by characteristic features listed in PC 12276.1:
A semiautomatic centerfire rifle capable of accepting detachable magazines and any of:
▪ a pistol grip protruding conspicuously below the weapon’s action
▪ a thumbhole stock or folding or telescopic stock;
▪ a flash suppressor, grenade launcher or flare launcher;
▪ a forward pistol grip.
A semiautomatic centerfire rifle with overall length of less than 30 inches;
A semiautomatic centerfire rifle with a fixed magazine holding over 10 rounds.
A semiautomatic pistol capable of accepting detachable magazines and any of the following:
▪ a threaded barrel;
▪ a second handgrip;
▪ capacity to accept a detachable magazine at some location outside the pistol grip;
▪ a shroud attached to, or partially or completely encircles, the barrel allowing
bearer to fire weapon without burning his/her hand, except for a slide enclosing
A semiautomatic pistol with a fixed magazine having capacity to accept over 10 rounds.
A semiautomatic shotgun having both of the following:
▪ a folding or telescoping stock;
▪ a pistol grip protruding conspicuously beneath the action of the weapon,
a thumbhole stock, or a vertical handgrip.
A semiautomatic shotgun with the ability to accept detachable magazines;
Any shotgun with a revolving cylinder.
3. What is the Kasler decision?
The California Supreme Court handed down its decision in Kasler v. Lockyer in August 2000. The original suit, in the mid-1990s, attacked the constitutionality of California’s 1989 Roberti-Roos assault weapons ban. The Court held against the plaintiffs; one resulting aspect of this decision was that the AWCA ’89 “series” terminology used for AR and AK type weapons applied to all similar weapons, regardless of nomenclature (manufacturer, model number, version, variant, etc.)
This was of significance because, during the 1990s, tens of thousands of AR15-style and AK-style firearms were sold in California quite legally. For example, Colt itself sold “Sporter” and “Match Target” rifles after the AR15 itself was banned by AWCA ‘89. Kasler declared all such guns as assault weapons, triggering a requirement that they be specially registered with CA DOJ.
For the purposes discussed here, what Kasler really did was to declare all AK-style receivers and AR-style lower receivers as ‘named’ assault weapons – regardless of presence of any attached characteristic features (pistol grips, folding stocks, etc.)
In some ways the Kasler decision was moot: by 1999, SB23 had passed, defining and banning assault weapons by generic characteristic features – regardless of weapon make and model. SB23 required special registration of these guns to be filed by Dec 31, 2000, if they were to be legally retained in California with those characteristic features affixed after that.
Even if Kasler had not been filed or decided, all AR15 and AK “series” weapons would have thus been banned ‘by feature’, and would have had to have been registered by that date for continued legal retention as operational pistol-gripped weapons. Overlap of registration periods for SB23 “by feature” and AR15/AK “series” weapons was a mere coincidence in timing.
Since AR15 and AK series guns were declared assault weapons by name as of Aug 16, 2000 due to Kasler, such firearms were required to have registration papers filed with DOJ before Jan. 23, 2001. However, SB23 registration had a cutoff date of Dec 31, 2000; during the interregnum of Jan 1, 2001 thru Jan 22 2001, possession of unregistered AR15 or AK “series” firearms as bare receivers – or as long as pistol grips and flash hiders, folding stocks, etc. were removed – would have been legal.
4. What is the Harrott decision?
In June 2001, the California Supreme Court handed down its decision in Harrott v. County of Kings (25 P.3d 649 (Cal. 2001) – and commonly called Harrott v. Kings County). This decision clarified and superceded key elements of both the prior Kasler decision and the Roberti-Roos AWCA law, as they pertain to AR15 and AK “series” weapons.
Briefly, Harrott said that cops, DAs and trial courts could not determine if a firearm was a “series” member: it was not one until promulgated by CA DOJ. (SB23 characteristic features are a separate issue.)
Specifically, Harrott determined that:
· Determination of “series” membership is difficult enough that owners and law enforcement should merely have to consult a list of specific makes and models (in California Code of Regulation) to know if their gun is a banned assault weapon:
“This case amply illustrates the difficulty an ordinary citizen might have, when a gun's markings are not listed in the Identification Guide, in determining whether a semiautomatic firearm should be considered an assault weapon under the AWCA. . . “
“Our interpretation of section 12276, subdivision (e) is reinforced by the rule that a statute must be interpreted in a manner, consistent with the statute's language and purpose, that eliminates doubts as to the statute's constitutionality. (Hughes v. Board of Architectural Examiners (1998) 17 Cal. 4th 763, 788.) “A law failing to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited violates due process under both the federal and California Constitutions. (Grayned v. City of Rockford (1972) 408 U.S. 104, 108; People v. Heitzman (1994) 9 Cal. 4th 189, 199.)” (Kasler, supra, 23 Cal.4th at pp. 498-499.)”
“Ordinary gun owners of reasonable intelligence, Mr. Harrott contends, cannot be expected to know whether the differences between their semiautomatic firearms and the assault weapons specifically listed in section 12276, subdivision (a) are, in the language of section 12276, subdivision (e), only "minor." However, our interpretation of the AWCA avoids this problem. To determine whether the differences between their firearms and the series assault weapons listed in section 12276 are considered to be only "minor," gun owners need only consult the California Code of Regulations.”
· Trial courts cannot determine if a given firearm/receiver is a member of AR or AK “series”. Banned weapons in AR/AK “series” must be specifically banned by make and model, and the DOJ must promulgate these banned firearms:
“Our decision today - upholding the Attorney General's authority to identify series assault weapons pursuant to section 12276, subdivision (e), but holding that a trial court may not find a semiautomatic firearm a series assault weapon under section 12276, subdivision (e), unless the firearm has first been included in the list of series assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h) - is compelled by our examination of the legislative history of the AWCA.”
“Our construction of the statute, holding that a trial court may not find a semiautomatic firearm to be a series assault weapon under section 12276, subdivision (e), unless the firearm has first been included in the list of series assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h), best serves the legislative goal we have just described. A contrary interpretation would be inconsistent with the legislative goal because owners of unlisted weapons would still be unsure whether they had to comply with the registration requirement.”
“Finally, our construction of the AWCA - that a trial court may not find a firearm a series assault weapon unless it has been first identified as such in the list published by the Attorney General in the California Code of Regulations - comports with the Attorney General's own construction of the statute.”
· DOJ does have authority to ‘identify’ and promulgate new members of the AR & AK “series” itself – and this power is only for AR and AK series members:
“Although we hold the Attorney General has the authority to determine that certain semiautomatic firearms are assault weapons by simply identifying them as such in the list published by the Attorney General in the California Code of Regulations, that authority applies only to the two types of firearms defined in section 12276 by the use of the term series, namely, the AK47 series and the Colt AR-15 series.”
· DOJ cannot ban other weapons outside the AR/AK series, but must instead begin an “add-on” procedure filed in certain superior courts, as specified in PC 12276.5. Here, DOJ can seek a temporary, then permanent, declaration that given firearms are assault weapon:
“In order to have any other semiautomatic firearms declared assault weapons within the meaning of section 12276, the Attorney General must utilize the add-on procedure set forth in section 12276.5.”
· the DOJ determination of AR/AK “series” membership is challengeable:
“. . . the Attorney General's identification of a particular firearm as a series assault weapon would, in an appropriate case, be subject to challenge on the ground the firearm in question did not satisfy the standard set forth in section 12276, subdivision (e), namely that the variations between it and the AK47 series or the Colt AR-15 series were more than "minor."
Also, the court was concerned about avoiding any “self-executing” issues and requiring specific promulgation, and that “make and model” are the criteria:
… The fact these amendments were enacted together supports the conclusion that subdivision (e) of section 12276 is not self-executing, but, rather, that the specific make and model of an assault weapon must first appear on the list the Attorney General, pursuant to section 12276.5, subdivision (h), files with the Secretary of State for publication in the California Code of Regulations.
This construction is consistent with one of the Legislature' s primary purposes in amending the AWCA in 1991, which was to promote compliance with the requirement of section 12285 that assault weapons be registered. . . .
Thus, Harrott moved Kasler aside: while Kasler said any AR or AK was a “named” (and thus banned) assault weapon, Harrott in effect said this left far too much up in the air: citizens, law enforcement and trial courts shouldn’t have to determine “series” membership themselves. Only DOJ Firearms Division should be the one determining AR/AK “series” membership. This allowed a group with technical expertise to set a uniform, promulgated standard.
The Supreme Court held that such banned “named” weapons had to be banned by specific makes and models on a publicized, state-maintained list (in the California Code of Regulation as primary source). Note that such guns are banned by a combination of make and model, not just either a make or model name: if the specific combination of make and model is not a listed entry in the roster maintained and promulgated by DOJ, a receiver is legal to possess. (Again, this doesn’t address the separate SB23 “characteristic features” issues.)
Because AR- and AK-type bare receivers not listed in the California Code of Regulations, §979.11 are not assault weapons as long as no SB23 “evil features” are attached, these “off-list”, or “non-Kasler” bare receivers can be legally purchased and possessed by California firearms consumers. CCR §979.11 is also echoed in the DOJ publication Roster of AK and AR15 Series Weapons.
5. What happens if my receiver (or legally-configured firearm built from it) is ‘identified’ or ‘declared’ as an assault weapon?
Remember, CA DOJ can only identify AR/AK series members itself. For any other firearms to be declared as assault weapons, the DOJ must go thru a PC 12276.5 add-on proceeding in a superior court in a county of population over 1 million.
Whether the DOJ “identifies” an AR/AK firearm as an assault weapon, or a superior court issues a temporary, then permanent, declaration of a given firearm being an assault weapon (via the PC 12276.5 add-on procedure). In either case a mandatory promulgated 90-day registration window must follow.
During this registration window, owners of newly-declared assault weapons must complete and send in a registration card to DOJ with owner information (including thumbprint), as well as information describing the weapon(s) to be registered - manufacturer, model, serial number, where & when acquired, etc. A single $20 fee must be paid to register: this is not per gun.
Though the registration form asks about caliber and barrel length, this is for informational purposes only: it’s perfectly legal to reconfigure an assault weapon registered with one caliber & barrel length into one with another caliber and barrel length. (In fact, if multiple calibers for one gun are specified on the registration form, registration papers returned from DOJ show “8888” as the caliber designation for such firearms.)
New registrants should retain copies of their registry card they filed, and mail their registration by certified mail, return receipt. Registration cards filed should not attempt to re-register guns already registered as assault weapons, nor should any attempt be made to register guns that should have been registered as assault weapons in 1991 or 2000 (and which are thus being illegally possessed if inside California). Also, you should not attempt to register something that has not yet been declared as an assault weapon by make/model: only register items for which the registration period has been specifically opened.
While you have a duty to make a good-faith effort to fully and correctly complete the registration form, if nonsubstantive corrections or additional information is required from the DOJ after the registration period ends (say, for example, you mailed in the registration only a week or two before the registration window closes), this will not invalidate your registration –- providing you promptly update DOJ within 2 weeks with the requested information. Penalties for illegal assault weapon possession will not apply during the 90 days after it was declared as an assault weapon (i.e., during the registration window). (PC 12280(g)).
6. What is the opinion of the California DOJ Firearms Division regarding off-list receiver legality?
While declaratory/identification action toward some receivers may or may not be pending, three letters below (two from a known antigun Deputy Attorney General in DOJ’s Firearms Division) may help explain. These letters were sent to people inquiring about Harrott legality, specific off-list receivers, and firearms using off-list receivers in legal configurations.
Midlevel DOJ field agents, “analysts” (clerks) and the like have frequently been distributing misinformation stating bare off-list lowers are illegal – it appears they are interfering with lawful interstate commercy by telling vendors and manufacturers outside CA that off-list lowers are illegal, while acknowledging legality to Californians.
These people apparently are not telling out-of-state vendors about Harrott’s significance and how it reshapes Kasler. (Or, they haven’t heard of it and are relying on outdated, incorrect Kasler “series” information). Addressing letters to senior department staff who are attorneys thus proved useful, though some DOJ staffers are still releasing misinformation, interfering with lawful firearms transactions. Clearly a retraining effort is needed – gun owners should educate CA FFL dealers and out-of-state vendors, while DOJ should educate their own staff as to the laws taxpayers pay them to know.
August 4 2005
Re: Harrott vs. County of Kings
This correspondence is in response to your letter of May 13th, 2005, you posed three questions regarding Harrott v. County of Kings and "series" assault weapons.
Your first question was about the effect of the Harrott decision on California assault weapons law. In Harrott the California Supreme Court upheld the Attorney General's authority to identify series assault weapons pursuant to Penal Code (PC) section 12276(e), but held that such firearms must first be included in the list of series assault weapons promulgated by the Attorney General pursuant to section 12276.5(h), before they are considered "assault weapons" under California law. Since the Harrott decision, the Attorney General's Office has carried out its legal authority by identifying assault weapons and periodically publishing the "Assault Weapons Identification Guide."
Your second question was whether the receiver of a semiautomatic rifle could be an "assault weapon" if it does not have any of the characteristics specified in PC section 12276.1 and it is not listed in PC section 12276. The answer is "yes". As affirmed in Harrott, the receiver of a semiautomatic rifle would be considered an "assault weapon" if it were specifically listed by the Department of Justice in the California Code of Regulations (CCR), as authorized under PC 12276.5(h).
Your final question was whether it is lawful under California law to purchase a stripped [brand] [model] receiver. The [brand] [model] is not listed in PC Section 12276 nor is it listed in CCR Section 979.11 (Title 11, Division 1, Chapter 12.9). Therefore, assuming it does not meet the characteristics criteria specified in PC section 12276.1 (such as a "pistol grip that protrudes conspicuously beneath the action of the weapon"), it could lawfully be purchased or possessed in California. If it did meet the characteristics criteria, it would be a prohibited assault weapon per PC section 12276.1(a)(1).
You should be aware that all [brand] receivers, including the [model], will soon be added to the list of weapons that are considered "assault weapons" under California law. After the list is published, owners will have 90 days to registered their firearms, pursuant to PC 12285.
If you have any additional questions regarding this issue, please feel free to contact me at (916) 263-xxxx.
Deputy Attorney General
For: Bill Lockyer
December 5, 2005
You are asking about the legality of purchasing and possessing a [Brand] [Model] lower receiver in California.
The [Brand] [Model] is not listed as a Category I assault rifle in California Penal Code Section 12276. Although technically the receiver is legal to purchase and possess in California at this time (assuming it does not have the characteristics listed in Penal Code section 12276.1(a)(1), (a)(2), or (a)(3)), you should be aware that the [Brand] [Model] lower receiver is virtually identical to rifles that are now listed as assault weapons by the Department, and is likely to be considered an assault weapon in the near future.
If you have any further questions, please do not hesitate to contact me at 916-263-xxxx.
Lisa Strange, Analyst
For: Bill Lockyer,
September 27, 2005
Re: JP Rifles CTR-02
I am writing in response to your letter to Tim Rieger dated September 20, 2005. You asked about the legality of purchasing and possessing a JP Rifles CTR-02 in California. As you pointed out in your letter, that particular make and model is not listed as an assault weapon in the list promulgated by the Department, and may be considered an assault weapon in the near future.
As long as the rifle does not have the characteristics listed in Penal Code section 12276.1(a)(1), (a)(2), or (a)(3), it is legal to purchase and possess in California. You should be aware, however, that the JP Rifles CTR-02 is virtually identical to rifles that are now listed as assault weapons by the Department, and may be considered an assault weapon in the near future.
Please feel free to contact me if you have any additional questions.
Deputy Attorney General
For: Bill Lockyer
7. Various recent letters from DOJ senior staff mention they consider “off-list” AR and AK receivers legal to obtain and possess as long as they are not configured illegally. But then some of these communications mention the “58 district attorneys” in California could have a separate opinion. What does all this mean?
It’s true that 99% of all California prosecutions are conducted by local district attorneys. Prosecutions of civil and criminal case by DOJ/AG’s office typically address major statewide issues. Statements in DOJ letters discussing Harrott and mentioning possibly differing DA opinions are primarily cautionary.
The standards by which a firearm is or is not to be considered an assault weapon – either by specific listed name, or by combination of characteristic features – should now be clear to anyone, especially after the clarifying Harrott decision. In fact, the specific goal of Harrott was clarity and uniformity – so that ordinary citizens could know whether or not they owned a “series” member. California assault weapons law - as written in PC 12275 thru 12290 and as shaped by the subsequent Kasler and then Harrott decisions - is readily readable. In particular, the California Supreme Court’s Harrott decision (whose key portions were extracted and commented upon above) is easy to read and clear in its expression and intent – even for non-lawyers.
Harrott was handed down in 2001 after a lengthy review and appeals and is held law now. There is always a chance, however, that a combination of an aggressively antigun local DA - plus an antigun judge who does not want to abide by precedent and throw the case out - could try to upset your apple cart. This possibly means any AW charges in these areas could end up having to be resolved (expensively) in appellate court.
If you live in a county (typically certain metro areas) where this might be possible, it would be prudent to initially acquire and store your off-list lower receivers in a more gun-friendly county until they are identified by make & model as assault weapons by the DOJ and appear in California Code of Regulations, §979.11. If and when such receivers enter onto the Kasler list as assault weapons and the mandatory 90-day registration period begins, PC 12280(g) offers protection from charges of illegally possessing an unregistered assault weapon:
12280 (g) Subdivision (b) shall not apply to the possession of an assault weapon during the 90-day period immediately after the date it was specified as an assault weapon pursuant to Section 12276.5, or during the one-year period after the date it was defined as an assault weapon pursuant to Section 12276.1, if all of the following are applicable:
(1) The person is eligible under this chapter to register the particular assault weapon.
(2) The person lawfully possessed the particular assault weapon prior to the date it was specified as an assault weapon pursuant to Section 12276.5, or prior to the date it was defined as an assault weapon pursuant to Section 12276.1.
(3) The person is otherwise in compliance with this chapter.
Note that this offers protection from penalties for possession (§12280(b)), not illegal transport, importation, manufacture, etc. (§12280(a)). (In fact, the penalties for the latter can be harsher than for the former!) So at all times avoid transport legal issues with assault weapons: always transport them - even at the bare receiver level! - in a locked case and between specific authorized destinations (discussed in a subsequent FAQ question below).
8. Why would anyone want to buy an “off-list” / “non-Kasler” AR or AK receiver?
California legislators cannot kill off the immense legitimate interest in these types of firearms; alternate halfway solutions that are California legal and DOJ-sanctioned are now being marketed.
Receivers such as Shoeless Ventures’ FAB10, for example, have a closed magazine well and use a 10-round internal magazine. This AR-derived receiver requires the rifle to be scissored open and loaded with a stripper clip. A conceptually similar California Vulcan AR-derived receiver has a 10-round magazine permanently affixed; it is also loaded via stripper clips when the action is broken open. Bushmaster is also offering a closed-magazine-well version of its Carbon-15 model. (Note, though, that a bare open-magwell version of the Bushmaster Carbon 15 receiver is not a listed lower receiver.)
A CA vendor has received permission from CA DOJ to weld up Bushmaster and Colt lower receivers’ magazine wells; while actually ”named” as banned weapons, these latter guns/receivers are regarded as so substantively different from their original design that they’re no longer considered to be named banned assault weapons anymore, and are as legal to possess/transfer as any other rifle in California. That is, these permanent and approved modifications have rendered their banned names moot.)
Nevertheless, these solutions are not right for everyone. Shooters, hunters and competitors travelling to most states outside California are not subject to such ridiculous legislative and regulatory strictures: having a firearm that can have its full functionality restored while travelling in a free state is very important to them. Yet these shooters still need to be able to readily “Californicate” their rifles upon their return to CA, so they can still be of at least marginal use to them at the target range.
With a few dollars’ in parts, a non-Kasler, “off-list” AR-type receiver can be modified to have a fixed 10-round magazine, allowing a pistol grip and/or collapsing stock and/or flash hider to be attached yet still be California-legal – but still, within a minute or two’s worth of work with a screwdriver, be rendered into a true AR-class firearm while in a free state outside California.
9. How can I make a legal “off-list” / “non-Harrott” AR rifle?
Begin with a legally-acquired, off-list bare receiver, acquired through a California firearms dealer (FFL) – that is, a receiver that is not specified by both manufacturer and model in the California Code of Regulation, §979.11 and PC 12276(e).
If your dealer is ordering it for you, he should ensure it’s shipped to him without an attached pistol grip and/or without a folding, telescoping or thumbhole stock. (Remember: a bare AR or AK lower with a pistol grip and/or a folding, telescoping or thumbhole stock is an assault weapon. A receiver with open mag well but no pistol grip but having a barrel attached with a flash hider mounted is also an assault weapon.)
You should also acquire a low-capacity fixed magazine or kit. For example, the vendor at http://www.AR15Plus.COM , sells a complete fixed-mag setup for $29.95. Sporting Conversions offers a well-regarded kit as well. Any 10-round magazine will work and a legal do-it-yourself solution could also be developed. Just don’t use a spring on the magazine catch, cut a bit off the magazine catch threaded stud (as necessary), and secure the magazine catch with a castle nut instead of the traditional pushbutton. It’s important that this not work loose during operation, and that you can’t access it with your fingers or fingernails – so perhaps a bit of ThreadLok or Glyptol is helpful.
So that this is not considered a detachable magazine by DOJ Firearms Division regulations, it must require tool(s) to be used for removal/replacement, and the magazine cannot be removable/replaceable in normal course of rifle operation.
Only after a fixed low-capacity magazine is attached and screwed down should the pistol grip and/or folding or telestock be attached. Conversely, if the fixed magazine on the rifle needs to be removed for repair or cleaning, the pistol grip and/or telestock, folding stock or thumbhole stock must be removed first.
NEVER HAVE AN OFF-LIST LOWER RECEIVER WITH AN OPEN MAGAZINE WELL AND A PISTOL GRIP OR FOLDING (etc.) STOCK STILL ATACHED - EVEN FOR A MOMENT!!
ALSO, NEVER PUT A BARRELED UPPER RECEIVER WITH A FLASH HIDER ON AN OFF-LIST LOWER , UNLESS A NONDETACHABLE LO-CAP MAG HAS ALREADY BEEN AFFIXED.
Add your choice of barreled upper receiver (16” minimum barrel length), add a buttstock, and you’re ready to go. Note that the overall length of your rifle must be a minimum of 30 inches or it becomes an assault weapon too.
Note also that since this gun does not have a detachable magazine, you can also have a flash hider and telescoping stock added.
10. I want to build an operational AR-class lower from an 80% blank. This wouldn’t be on the list, so that’s legal, isn’t it?
No, no, no! Walk away from this - there’s too much chance this may not be legal. At best, it’s a murky situation.
The Harrott decision indeed protects off-list AR and AK series receivers. The problem is that there’s really no practicable way that homebuilt AR and AK receivers could ever be listed individually by “make and model”, and thus these may fall out from the scope of Harrott: the Harrott decision, after all, was all about practicality and uniformity.
If these receivers are not Harrott-protected, there’s a chance they could fall back under Kasler, making possession of such receivers a felony.
For now, you should only acquire off-list AR and/or AK series receivers from normal commercial production.
11. If my off-list receivers are declared as assault weapons, can I add “evil features” like pistol grips and folding stocks?
As of now, you should only have the intent of purchasing off-list lower receivers for the intended goal of making and using a legally-configured rifle. Any future declaration actions by DOJ are speculative; you prudently should ask for a “letter ruling” from DOJ (or see one on DOJ letterhead from someone you trust) on modifying your newly-registered lower receiver with any one or more characteristic features with a detachable magazine – and only after you receive your assault weapons registration for the particular firearm(s) in question back from the DOJ.
Your “named” assault weapon would be legally possessed and was legally acquired, so you wouldn’t manufacturing or creating an illegal SB23-violating weapon: it is a listed assault weapon at the receiver level, once it’s declared and registered. The boundary from regular rifle receiver to AW status was crossed by the DOJ, not you – so you have not manufactured or created an assault weapon. In this manner, a bare off-list receiver, or legally-configured rifle from such a receiver, becomes an assault weapon only by government fiat and not through any action of yours.
You are furthermore not manufacturing an assault weapon as there is no reversible process controlled by you (i.e., removing a feature that would make it no longer be an assault weapon). If you register the rifle as an assault weapon, it already is one - regardless of characteristic features.
There is no minimum or maximum amount of ‘evilness’ for a registered assault weapon: all legal registered assault weapons have the same legal status regardless of the path they became assault weapons. Fixed magazines are no longer an issue; it is an assault weapon, so it can be a semiautomatic rifle that can accept a detachable magazine and have a pistol grip, etc.
There are no varying categories or distinctions between registered legal assault weapons – the terms Category I, II and III are not coded in the Penal Code and are terminology that really only reflects the registration period history. California assault weapon law only concerns itself about when a certain name or configuration of a firearm becomes an assault weapon; the penalties are merely for illegal, unregistered assault weapons and illegal transport, import, manufacture, sale to a minor, etc.
Read the next FAQ Q&A pair for some caveats about special California-legal AR and AK receivers.
12. Once my California Vulcan fixed mag or CA-legal pump-action AK is declared an assault weapon, can I add “evil features”?
There’s a good chance that several special receivers - the FAB10 from Shoeless Ventures, the California fixed-mag Vulcan, and GB Sales’ welded-up Colt/Bushmaster receivers (all of which have had DOJ approval for recent regular sale in California) - will never be declared/identified as assault weapons. These designs were regarded as not having enough “AR-ness” to be categorized as assault weapons.
No matter if these are modifiable with some effort into regular AR receivers, these will likely not be recategorized into assault weapons, as the DOJ Firearms Division probably does not wish to reverse its prior decision. (By extension, this also could apply to the pump-action AK guns occasionally - and legally - sold in California.)
Be especially careful when reading any updated list, because the California Vulcan fixed-mag AR lower may or may not have a different model than any Vulcan being banned. There is a chance that even though the DOJ would accept and process a registration on such a receiver, this might end up being invalid (how can you register something that wasn’t eligible for registration?) – and if you had SB23 ‘evil features’ on such a receiver at that point, you could be in illegal territory.
13. All this talk is about AR series guns – what about AKs?
Similar concepts apply. The Harrott decision, in fact, originally dealt with AK “series” issues. It protects both AR and AK style receivers that are not listed by the DOJ in §979.11 (and PC 12276(e) and the DOJ Roster).
It is prudent to purchase receivers with the intent only of making them into legally-configured, operational weapons - regardless of speculation about any prospective DOJ list-maintenance activities. AK-style designs cannot be broken open nor stripper-clip fed. Receivers that allow non-pistol-gripped operation (like the conventional Saiga rifle design) are attractive for this reason because they can use a detachable magazine and be useful without a pistol grip.
One could also close the gas port on the barrel and remove the gas system on an AK-design rifle using an off-list lower, so it is a single-shot rifle that must be manually cycled each round; in this instance, a detachable magazine would be allowed. (Mount the pistol grip only after the gas system is removed and gas port is closed/covered.)
14. I have an off-list receiver. It just got declared to be an assault weapon. Once it’s registered, can I make this receiver into a pistol?
No – even if your DROS/4473 paperwork indicates a bare receiver, which would make this legal in under Federal law.
This is really totally aside from any California assault weapon issues; it could simply be a violation of the PC 12125 “Unsafe Handgun” laws, banning manufacture, acquisition and import of untested/unapproved (“unsafe”) handguns. (The only untested/unapproved handguns you can make are certain single-action revolvers, and, starting in 2006, certain single-shot pistols. The only untested/unapproved handguns you can acquire are those already in California – or being brought in by those moving into California – and which are transferred to you via private-party transfer (“PPT”) procedures.)
15. Can I ship my off-list receiver, or CA-legal gun made from such an off-list receiver, to any FFL for sale or repair? What if I decide to sell or repair such a receiver - or gun made thereof - after it’s a registered assault weapon?
If it’s an off-list lower, or a CA-legal firearm made from such a lower and which isn‘t an illegal assault weapon, it may be shipped to & from any FFL dealer.
However, if it gets “declared” or “identified” as an assault weapon while out for service, you should get your receiver/gun back as soon as possible before the mandatory 90-day registration window ends.
In order to ship or receive registered assault weapons, you must use the services of a California FFL dealer who also holds a California Assault Weapons Dealer Permit. There is, however, an exception discussed below (in this section) about Category III assault weapons.
It does not appear to matter that the address to which you ship, or receive gun back from, is inside or outside California. Are you shipping/receiving a legal, registered assault weapon? Go thru a CA FFL with an AW permit!
You may, however, transport your legal assault weapons yourself (unloaded, and in a locked case, to/from specific destinations where they are legal to be possessed) instead of shipping them. This includes travelling out of, and back into, California. If you chose to ship and receive them to another FFL while you are outside CA that is perfectly legal – as long as that state had no other laws firearms restricting these actions.
During registration windows, illegal assault weapon possession penalties do not apply:
12280(g) Subdivision (b) shall not apply to the possession of an assault weapon during the 90-day period immediately after the date it was specified as an assault weapon pursuant to Section 12276.5, or during the one-year period after the date it was defined as an assault weapon pursuant to Section 12276.1, if all of the following are applicable:
(1) The person is eligible under this chapter to register the particular assault weapon.
(2) The person lawfully possessed the particular assault weapon prior to the date it was specified as an assault weapon pursuant to Section 12276.5, or prior to the date it was defined as an assault weapon pursuant to Section 12276.1.
(3) The person is otherwise in compliance with this chapter.
Do note there is special treatment allowed for registered Category III assault weapons that are not banned by name: These are “by features” assault weapons. Removal of sufficient number of SB23 characteristic “evil features” renders these into conventional firearms that have less restrictive shipping and transport requirements, while their valid California assault weapon registration allows reinstallation of “evil features” as desired.
[This treatment does NOT apply to listed, banned AR/AK “series” guns (Category II) nor any of the other original Roberti-Roos (Category I) “named” assault weapons. Thus, an Imbel FAL clone legally registered as an assault weapon (during the 2000 SB23 registration period) could be shipped out of/into California without any special procedures – providing it was split into upper & lower halves or, say, the pistol grip or folding stock were removed. By contrast, a true FN (Fabrique National) FAL is a “named” assault weapon regardless of features. This firearm must always be treated as an assault weapon, including its common-carrier shipment via a California FFL with an Assault Weapons Dealer Permit.]
16. Can I take my assault weapons to a local FFL dealer/gunsmith for repair?
Yes, but with some exceptions. If he has no special California Assault Weapons permit, you must be physically present near your gun at all times while he’s working on it. This means you can’t go out to lunch, or leave it overnight. (This does not apply to those California FFLs also holding a California Assault Weapons Dealer/Repair Permit).
17. What are some of the restrictions for travelling with assault weapons in California?
First and foremost, they must be unloaded and locked in case(s). The locked trunk of a car can count as a locked case, but should thus not have any ammunition of the assault weapons’ caliber(s) stored in the trunk.
Additionally, there’s a specific destination/specific location requirement for assault weapons in California. While long arm transit rules are relatively relaxed, assault weapons must be transported between specific destinations where they’re authorized, as per PC 12285(c): you just can’t cruise around with an assault weapon as your “truck gun”.
These authorized destinations include places like your residence(s), business(es), any businesses whose owners give express permission, residences whose owners give specific permission, shooting ranges and gun clubs, firearms exhibitions, on public land if permission is given by managing agency (for example, BLM land), etc. “Outside California” is, of course, a valid legal destination. Since there’s no standard as to directness of travel going to such specific destinations, it’s prudent that when travelling with an assault weapon that one goes in a reasonably direct fashion. Stopping for gas and food is probably reasonable.
It appears at this time if visiting a renter with your legal, registered assault weapon is not legal if only the tenant/renter gives permission (as opposed getting permission from the actual property owner himself). This does not restrict legal assault weapons possession by the registrant within his own rented residential property, however.
You may of course travel from/return to California with your own assault weapons and any high capacity magazines you possessed while in California on or before Dec. 31, 2000.
And, despite prohibitions against prosecution for illegal assault weapon possession in 12280(g) during the 90-day registration window, it is prudent for one to begin treating his or her firearms as assault weapons from the moment they are declared or identified as assault weapons to avoid separate legal issues with transporting assault weapons.
You also should not give/lend your assault weapons and/or high-capacity magazines to others; they however can shoot them in your immediate physical presence under your supervision.
18. What happens to my assault weapons registration if I move out of California?
This is currently unclear. It appears you must be a California resident to register an assault weapon. But there is no law terminating assault weapon registration when you move away or become a resident of another state. And Penal Code section 12280 essentially just says your assault weapon must be registered for you to possess it.
However, because of linkage with California drivers' licenses and/or identification card numbers, there could be a chance of mishap - that is, your registration disappearing from the DOJ Firearms Div. Assault Weapons Registry database after your license is cancelled when you get a license outside California. So make sure you retain your registration paperwork in a safe place, and keep multiple copies.
19. Do I have to carry my registration papers with my assault weapon?
There is no requirement to carry your registration document (or copy) with you when you are travelling with your legal, registered assault weapon. Should police need to make enquiries about such firearms, they can often make enquiries by make and serial number over mobile data terminals. However, it’s generally a good idea to keep a spare copy just in case such systems are down.
Do note that some publicly-operated shooting ranges (that is, those run by government entities such as a Parks & Recreation Depts, or operated/maintained by Sheriff’s offices) may require you to present your registration paperwork before you can shoot assault weapons at their range.