This report by the Expert Commission on Fifty-Caliber Rifles, which was formed to investigate and refute false claims made by proponents of a ban on .50 caliber rifles in California. While legislation was eventually passed to ban these the rifles, the report is still an excellent source of information on what a .50 caliber can, and more importantly, cannot do. It debunks many of the myths pushed by the proponents of the ban in a clear and scientific manner.

Report of expert commission on Fifty-Caliber Rifles

This document from the California Department of Justice, Firearms Division, details the number of persons with registered assault weapons as well as the total number of registered assault weapons in each California County from January 1990 through June of 2006.

AW Registration 6-06.PDF

The law firm of Trutanich-Michel, LLP has recently located and published a January 2002 opinion letter and expert report from the California Department of Justice - Bureau of Firearms (DOJ) that approves the magazine configuration on a DS Arms model SA58 rifle and confirms it is not an "assault weapon." The letter flatly contradicts the DOJ's current reinterpretation of what constitutes an illegal "assault weapon," and clarifies the historical position that has been taken by DOJ and relied on by thousands of gun owners since the 1999 "assault weapon" law was passed.

Hopefully, the release of these documents will serve to put an end to DOJ’s recent mistaken reinterpretations of the "assault weapon" law’s requirements, will prompt the DOJ to give clear guidance to firearms dealers, and will put an end to current criminal prosecutions of people who relied on the DOJ's previous interpretations in configuring their firearms to comply with the law.

[ADDENDUM 4/11/2007]

In this 2.5 Meg PDF document (Adobe Acrobat Reader required), 15-year CA DOJ official Ignatius Chinn attempts to explain why DOJ's interpretation and implementation of California's "Assault Weapon" law is adequate. Does he effectively counter the lawsuit's charges that many of SB-23's technical feature issues remain unclear?

[Read it] (2.5M, 8 min @ 56K)

Since I did not receive any confirmation of receipt of my first letter, a copy of this e-mail is being sent to Trutanich-Michel, LLP in order to verify in any final reports that it was received and submitted to OAL for consideration.

Ladies and Gentlemen of the DOJ,

Normally I applaud any effort to clarify an existing law, however, I must condemn your proposed changes to Penal code 12276.1. The changes do not clarify the law, they muddy it. At best, they re-write the law, which I understand is not within your power. In addition to the potentially large financial impact, tens of thousands of law-abiding gun owners would also face the shock of being turned into instant felons by your changes.

Any attempt to insert the word "permanent" with regards to fixed-magazines re-writes the law. Federal case precedence tells us that when legislation uses a word in one section, but omits it in another, the omission is deemed to be intentional. The CA legislators purposely omitted this term in this part of 12276.1, and there is no interpretation required. Also, the terms "permanent" and "irreversible" are not applicable to modifications performed upon firearms. Any modification, such as welds or rivets, can be undone in a minimum amount of time with modern tools. Your changes are attempting to outlaw the "potential" for accepting a detachable magazine. Yet, virtually all semi-automatic firearms have the potential to be modified in such a way as to be illegal and are not illegal as possessed. Since there is no constructive possession law for assault weapons in CA, a semi-auto with one of the current versions of fixed-magazine (allen-screw type) is legal, as possessed, by the letter of the current law. It is only after the fixed-magazine is removed that it becomes "capable to accept".

When considering the financial impact of your changes, it's imperative to remember that this will affect possibly tens of thousands of gun owners. Let's consider the options available to a gun owner if your changes are allowed. Option 1, gun owners decide to sell their newly outlawed firearms to someone in another state. The market will therefore become flooded, and prices will plummet leaving owners potentially hundreds of dollars lost per weapon. Option 2, owners decide to have their gunsmith modify the weapon to comply with the new changes. The expense to convert all affected weapons would be enormous, not to mention it would take far too long for all the smiths in CA to convert the tens of thousands of affected weapons. Option 3, gun owners turn their weapons into their local Law Enforcement losing potentially thousands per weapon.

Here are some additional points I believe should be considered and answered for:

1) The proposed changes to the original proposed regulations in August are not sufficiently related and warrant an additional 45 comment period and a public hearing.

2) Your office has not seen a need to clarify the existing law for 6 years. Your field agents have seen semi-auto weapons in the field with the currently available, and legal, fixed magazine kits using the setscrews, yet they made no arrests.

3) Your proposed changes contradict your very own letters of approval on certain weapons.

4) The current law is clear on what is considered a detachable magazine. It is understood that if a magazine requires a tool to be detached, then it is a fixed magazine. Your office has not put forth any evidence showing these facts have confused gun enthusiasts.

5) Subsection (f) contradicts subsection (a) in your proposed changes to 12276.1.

6) The term "action" is not defined.

In closing, your proposed changes muddy a current law that before seemed clear. The changes have significant financial impact, are contradictory, turn law-abiding citizens into instant felons, and do not follow proper OAL (APA) procedure. Not only should you retract your proposed changes, you should put forth an official approval for the set-crew, fixed-magazine kits currently available to protect law-abiding citizens, that you serve, from over-aggressive or misinformed DA's.

Sincerely,

It is again with great concern that I, along with many, many other legal California firearms owners, must protest the recent additional rulemaking with regards to "capacity to accept" matters and issues related to fixed magazines on semiautomatic firearms. The side effects of such regulation result in significant ‘underground law’ – that is, massive unintended side-effects – which is prohibited by California Government Administrative Code and OAL regulations.

(Throughout this letter, I will use the terms DOJ & Attorney General ("AG") somewhat interchangeably with Firearms Division, and will usually merely refer to "DOJ" in general. "PC" shall refer to Penal Code, and "CCR" shall refer to California Code of Regulations.)

I must note the recent proposal to extensively update CCR 5469 with new items (f)(1)…(3) is substantively different in its detail and elaboration than the originally proposed for new CCR 978.20 item (f). In fact, these matters differ so much that the 15-day comment period is legally inappropriate, as this is in essence a completely new regulation (with new concerns & side effects and completely new material, and not mere simple writing changes to correct trivial errors or clarify phrasing). Such matters require a 45-day analysis/comment period as per CA Government Code section 11346. There is no way that the additional material in the revised, then vastly extended 5469(f) definition could have been predicted or determined by "a reasonable member of the directly-affected public", as no one could foresee such "… changes to the regulation could have resulted." (CCR Title 1, Sec 42). In addition, the 45-day public comment period must be accompanied by a public hearing on these rewritten regulatory definitions. Continued proceeding down this regulatory pathway is illegal, and the regulatory process must reset and start over again given the severity of changes involved, especially as these require far deeper analysis and discussion on both sides (gun owners and DOJ).

The fact that the regulatory definitions have had to be revised twice certainly shows that these are not clarifications, especially (as described below) that these conflict with prior stated DOJ policy and approval of certain firearms (and which are in conflict with the new, proposed definitions). The purported clarifications rely, in fact, on tortured language and even deeper interrelationships than before, or that were even envisioned by lawmakers.

It also appears that the DOJ is acting in bad faith by its own lack of formal public comments (or rebuttals) to the comments submitted by various parties at, or preceding, the Aug. 16, 2006 DOJ comment hearing regarding these matters. Many, if not most, of these comments were articulate, substantive, detailed, and on point - and were offered by technically knowledgeable gun owners who understand California assault weapon laws. This lack of intermediate response by DOJ certainly makes moot the concept of "fair and open" public discussion when it really appears the public is "talking to the wall" in this intermediate comment period. In fact, this lack of DOJ response gives a reasonable person the idea such regulatory matters are a foreordained conclusion, and that the public comment about regulatory matters envisioned by the Administrative Procedures Act (11340 GAC et al) is a mere formality to be shunted aside in actual practice.

These regulations are of critical importance since they conflict with years of prior DOJ regulatory commentary and practice, and have possible criminal outcomes. They deal with ex post facto matters regarding transition of legal, approved firearms into illegal assault weapons. They have a great deal of unclarity regarding other firearms, some of which the DOJ has also approved, and some of which never needed approval due to clear legality. In addition, they further shift the ‘definition burden’ down the line to a new set of as-yet undefined terms (such as "action").

It should be noted regulations are invalid on their face if they are not completely clear: the ‘rule of lenity’ applies when regulations can be taken in opposite contexts. This is especially notable when this regulatory response is really political response to a contentious issue, and where an elaborate discussion occurred over five years ago (during the a comment period to resolve CCR 978.20 regulatory definitions) to nail down formal details. While "great weight" must be given to a regulatory agency’s standards and ideas involved in regulation, a regulation must not be designed to entrap or to be naturally unclear – or to have unaddressed side effects. To reverse course from five years of documented prior stance without a statutory law change is "bad faith" regulation at its worst.

A variety of issues are opened by these new regulatory definitions. I will quote from the text of the proposed regulation, background information in documents relating to it, or mention situations contravening proposed regulations.

1. "…currently able to receive a detachable magazine or readily modifiable to receive a detachable magazine." .... "A firearm is not readily modifiable if… (A) it does not have a magazine well; . . . . "

Receivers such as the DOJ-approved Bushmaster Carbon-15 have a magazine well, albeit with a blind bottom plate. This carbon fiber material can be cut out with a small cutting tool (a Dremel or a knife), and any adhesive retaining internal magazine can be removed with common solvent. This is a very quick operation.

The DOJ-approved Barrett M82CA has a swing-down magazine whose bail is merely retained with a screw. Legal M82CA rifles, by the new CCR 5469 definitions, would become assault weapons by DOJ redefinition (even though such rifles were registered as 50BMG rifles, this does not allow them to also gain assault weapons status). This blatant conflict (of an existing, DOJ-approved rifle) with proposed regulations was already noted at the Aug. 16, 2006 hearing and has been unaddressed since then. The revised regulatory definitions still do not address this major issue.

If these regulations were to go into force, owners of Barrett M82CA rifles will be illegally possessing assault weapons. The fact that these rifles are registered as 50BMG rifles is of no import as registration status of 50BMG rifles and assault weapons are separate and distinct. The regulatory definition has no accompanying registration period for Barrett M82CA rifles, and the effective criminalizing of such a legal rifle is a major example of "underground regulation", especially severe since there are felony criminal consequences.

2. There is conflict and inconsistency between "detachable magazine" (CCR 5469(a)) and new definitions proposed in 5469(f)(1…3).

The standard for ‘detachable magazine’ in CCR 5469(a) has been left unchanged. A rifle’s magazine is not a ‘detachable magazine’ – nor is capable of being removed readily from the firearm - if it takes a tool to remove it. (The goal of this definition, in conjunction with 12276.1 PC definitions, was to prohibit magazines from being readily changed in normal course of operation of rifle - as opposed to cleaning, repair or dismantlement.)

The term "detachable magazine" is only described in relation to 12276.1 PC generic assault weapons and is used to describe not the magazine itself, but its relationship to the rifle in question. For the past 5 years, it has sufficed to describe fixed-magazine rifles and the interrelationship of various features so that the general public could avoid incorrectly configuring a rifle that would be described by 12276.1 and thus violate 12280(a) and (b) of the PC.

A firearm with a magazine not described by CCR 5469(a) does not have a detachable magazine. It has no "capacity to accept" because an existing ammunition feeding device is already in place. Removal of said fixed magazine (compliant with 5469(a)) is a legal "construction" that conflicts with numerous past DOJ writings stating that "constructive possession" issues do not apply to the general field of characteristic assault weapon features dealt with in 12276.1 PC.

In addition, prior writings from the current Deputy Attorney General indicate that the concept of "…not readily detachable" was valid and legal in the earlier part of this year and at the end of 2005.

3. DOJ’s well-documented prior stance is being reversed (including for already-DOJ-approved firearms), and since the enormous new detail in new regulatory definition precludes these definitions from being considered as "clarification". As such, these definitions trigger assault weapons status on legal firearms, and there are no DOJ public discussion or regulatory moves to address this situation.

This in essence means that existing fixed-magazine semiautomatic rifles are legal. (In various locales, already-seized fixed-magazine rifles are being released & returned to people incorrectly charged with assault weapons possession, with the relevant 12280 charges being dropped as well. In fact, in one case, the existence of the DOJ regulatory proposal showed the legality of fixed magazine rifles given the current regulations extant.) This means that district attorneys also do not agree with DOJ’s new assertions that reverse prior DOJ position. (In fact, it appears many such D.A.s do not even consult the CCR definitions and just work from 12276.1 definitions: they’re barely up to speed on Harrott issues alone, and the lack of a post-Harrott updated and current DOJ Assault Weapons Identification Guide further adds to the confusion.)

Since such fixed-magazine rifles are not assault weapons, they’re legally-owned firearms that will transition into assault weapons status by upcoming DOJ action. Similar to the Barrett M82CA issues mentioned above, DOJ appears to have no plan for registering newly-transitioned firearms as assault weapons, and owners will – through no fault of their own – end up in possession of illegal firearms.

There is no statutory support for DOJ ordering seizure of legally-owned, legally-acquired rifles or for DOJ mandating their modification, disposal or disablement. If a legal firearm transitions into assault weapons status, a registration period must open for them. Clear legislative intent in original Roberti-Roos law – unchanged by patched-in SB23 "generic features" additions – was to stop new firearms of a certain make, type or class from being acquired, but allowing existing owners to register and retain such firearms. The legislature certainly did not envision the DOJ of defining terms and then redefining terms to create another pool of assault weapons: it, after all, didn’t envision people "caught in the middle" of a technical regulatory redefinition after 5 years of a suitable one. The goal of the law was not to take guns from people, but to restrict them and register them to their existing owners. Those legislators who voted for Roberti-Roos AWCA (1989) wanted to avoid, at all costs, issues of seizures and property rights . (The legislature also did not envision the DOJ failing to update the list of banned firearms for over five years, allowing a situation to mushroom without proper guidance, and with a regulatory "payback" response such as what is currently proposed by DOJ.)

4. The "SKS"/Simonov situation becomes very unclear.

Hundreds of thousands of Simonov-pattern rifles are in California. Also, "SKS with detachable magazine" is a 12276 PC "banned by name" assault weapon.

SKS magazine definitions are informal, unclear and colloquial. While some refer to the flip-down device as a magazine cap, it is also commonly referred to as a magazine. Additionally, this flip-down device can readily be removed on a standard SKS with ordinary tools (without disassembling the action) and replaced with a detachable magazine (different configuration than the AK47 magazines that fit into some Chinese SKS Sporters).

Currently, legal Simonov rifles can become banned assault weapons in one of two ways: they can be specifically-named Russian or Chinese true "SKS" rifles that have detachable magazine setups (and banned via 12276 PC), or a Simonov rifle (not named SKS) and having a detachable magazine with one or more other "evil features".

That Simonov-pattern rifles become illegal assault weapons is not at all precluded at all by the newly-proposed 5469(f)(1…3) regulatory definitions:

• such designs are ‘readily modifiable to receive a detachable magazine’;

• it has a device preventing magazine release but allows a detachable magazine to be accepted when the device is removed, reversed, or disengaged. No changes to the magazine well are required;

• such rifles have a magazine well;

• any or all of the above tasks can be accomplished without disassembly of the action.

• the term ‘action’ is not defined and has had various usages by DOJ and others.

With these new definitions, an "SKS" rifle will become a banned 12276 PC assault weapon. A non-SKS Simonov-pattern rifle would become a generic 12276.1 PC assault weapon if, in addition to the transition to 5469(f) detachable magazine brought about by regulatory redefinition, it also had a flash hider (quite common on non-Russian Simonov-pattern rifles, especially "sporterized" ones handed down between generations or ones having been (legally) bought & sold multiple times.

Given the long history of importation of Simonov rifle variants, there are untold tens of thousands of such highly "sporterized" Simonov rifles that have new stocks and flash hiders and which are not assault weapons as of today. Many owners may not even know what type of rifle they have, given its low cost, frequent resale or inheritance, and given the large quantity of US-made accessories for it. These owners just know it takes 7.62x39 ammunition, and that it is currently legal. This large population will not know that a regulatory definition has made such a rifle into an illegal assault weapon, and that a regulatory agency has "manufactured" a crime.

This is especially disastrous, given that the DOJ’s stance of "clarification" leads to a further lack of clarity in this unexpected area. (It was mentioned in the Aug. 16, 2006 hearings but has unfortunately not been addressed by DOJ). In addition, the revised proposed regulations compound these SKS/Simonov issues even more so than the originally-proposed regulation discussed in the Aug 16, 2006 hearing did. This is another prime example of "underground" or "submarine" regulatory law: criminalizing lawful SKS & Simonov rifle ownership.

To summarize, these regulations do nothing beyond a bureaucratic hassling of legitimate firearms owners who strive to follow the law. It creates confusing legal situations whose side-effects are profound and which are unaddressed, and will require court time, and appeals of felony convictions to settle.

Sincerely,

Dear Mr. Amador:

The DOJ views the proposed definition changes as a clarification of existing law. The DOJ doesn't believe that they're amending, adding, or changing law. The current regulations explicitly define "tool" as a requisite for defining the term fixed magazine. There is nothing confusing about this definition. Changing the regulation to requiring more than a bullet as a tool is a change of the current rule. The Standard of Review from the Vocational Nurses ruling < http://www.oal.ca.gov/decision/02-0228-09S.pdf where it says: "An administrative agency may not exercise its rule making power so as to alter, extend, limit, or enlarge the provisions of the satute that is being administered." By adding new definitions, the DOJ is enlarging the provisions of the current regulation and its actions are illegal.

No where in any memo or letter has the DOJ stated that current regulations or law INTENDED a permanency to the definition of a fixed magazine, in fact the words "use of a tool" factually states that a fixed magazine CAN BE REMOVED WITH THE USE OF A TOOL. Any rifle that is currently configured with a Fixed Magazine does not have a "capacity to accept a detachable magazine" as it has a fixed magazine and not a detachable magazine.

A sensible definition of "irreversible" would be: Can not be undone, without causing such damage to the rifle (or receiver or action or magwell or ...) that the rifle becomes unusable and can not be repaired. "Permanent" is a hard word to define. Welds can be undone; are they less than permanent? Rivets can be removed and epoxy can be removed. The CA DOJ approved Vulcan AR15 can have the magazine removed in an hour. This has been done when the fixed magazine needed to be replaced. In that sense, there are very very few things that are irreversible. Welding can be ground off, the ground edges can be smoothed, polished, and re-blued or re-coated. Holes can be filled in with a welder, then ground flat and re-finished. In particular, the example of "rivets" the DOJ gives in the proposed regulation is not at all irreversible, as rivets can be easily drilled out, leaving only a harmless and inconspicuous hole, which does not interfere with the functioning of a detachable magazine rifle. Epoxy can be removed by a skilled expert.

SKS problem: one does not need to remove the action on an SKS to remove the mag. Unless of course the trigger assembly is classified by the DOJ as the action. The fixed magazine may be removed from the Yugo SKS by simply removing the trigger assembly (by pushing the tab in), and then pulling the bolt back. The magazine slides right out. The fire control components are considered "part of the action". The DOJ definition of a pistol grip is that if it "protrudes conspicuously below the action of the rifle", then that the fire control components above the exposed portion of the trigger is considered the action of the firearm. There appears to be other paperwork saying the action involves the barreling/feed/bolt traversal area. That is, the trigger group is "just parts" and isn't "the action".

If the DOJ considers the trigger assembly to be the action, then the SKS is not readily receivable to have a detachable magazine. All that is required to remove the mag from an SKS, is to remove the trigger assembly and then pull the bolt back. Is the trigger assembly considered the action? Exactly how the DOJ defines the action is still unclear.

The CA approve Vulcan V15 receiver has its magazine fixed by a roll pin that is inserted into a hole that was drilled right in front of the magazine release hole (non button side). A notch was cut in the magazine where this pin is, thus holding the magazine in place. The magazine release and spring are RTV'ed (gasket silicone) in the button hole and the magazine release button is installed normally. There is also applied RTV to the bottom side of the magazine well around the perimeter of the magazine. According to the new definitions, this CA Approved Vulcan V15 will not be in complaince with the law. Since the DOJ has made this approved rifle an assault weapon by definition, they must open a 90-day assault weapon registration period.

The intention of the DOJ to list receivers can not be disputed. In a letter dated December 28th 2005 Deputy Attorney General Alison Merrilees stated: "You should also be aware that we intend to add it soon to the DOJ Assault Weapons Identification Guide. Therefore, the Stag-15 will soon be classified as an assault weapon." She's stating that the Stag-15 will soon be classified as an assault weapon means that the capacity to accept a detachable magazine does NOT define it as an assault weapon. Thus ANY changes to the current definitions that would result in a STAG-15 being classified as an assault weapon WOULD require a registration period.

Fixed magazine guns, like the Barrett 82A1/CA (see footnote below) and DSArms FAL, can be retrofitted with a detachable magazine -- which would make them illegal under the new definitions. Since the DOJ is changing the current regulations which would then redefine the currently legal DSA FAL, the Vulcan, and the Barret as assault weapons, the DOJ must open an AW registration period.

The DOJ historically emphasized that the focus on modifications of firearms was whether the firearm was a "fixed magazine" or a "detachable magazine," not the reversibility of the modification. For example, Director of the Firearms Division, Randy Rossi stated in a letter as far back as August 13, 2002 that a Barrett 82A1/CA, which was approved by the DOJ, was a "fixed magazine" - despite the fact that the same firearm would not meet the newly proposed regulation by the DOJ.

A DOJ lawyer for the Firearms Division has previously stated in writing that "a receiver with a magazine that is not 'readily detachable' is not subject to the ban on generic characteristic [sic] set forth in section 12276.1(a)(1)."

Over one-hundred thousand firearm owners have relied upon the historical DOJ interpretation, actions, and application of the "assault weapon" statutes and existing regulations defining "detachable magazine," which focuses on the interface between the magazine and the rifle. Any change by the DOJ of these regulations which would change the legality of a currently legal fixed magazine firearm, would require an AW registration period.

The following are some further problems with the proposed regulation changes: "Reversed" should be defined. But given modern machining capabilities, no firearm is ever "irreversible" to only accept a fixed magazine. And, the DOJ has admitted that a firearm cannot be permanently altered to not accept a detachable magazine. The regulation would deem any fixed magazine rifle with one feature prohibited by Penal Code section 12276.1 that could be retrofitted with a detachable magazine an "assault weapon."

It is unclear what the term "action" means. Is it the receiver, the bolt, the barrel, the trigger group, or what?

The DOJ has already stated that the phrase "capacity to accept" is clear.

The DOJ has already stated that the courts should decide what "capacity to accept" means.

It is unclear what the term "device" means, because it has not been defined.

It is unclear what the term "irreversible" means since anything can be reversed with time and tools, even the approved methods of modification.

The inclusion of the phrase "removed, reversed, or disengaged, without alteration to the magazine well" limits the allowable modifications to the four modifications listed in subdivision (3) despite the inclusion of the unrestricted language "for example" used in subdivision (3). This is also true despite the fact that the four proposed approved "examples" are reversible and conflicts with the alleged intent of the newly proposed regulation.

The proposed definitions exceed the scope of the stated purposes of the regulation, which was to "define a sixth term, 'capacity to accept a detachable magazine', as meaning 'capable of accommodating a detachable magazine, but shall not be construed to include a firearm that has been permanently altered so that it cannot accommodate a detachable magazine.'"

In conclusion:

Based upon the existing definition of "detachable magazine" the proposed definitions are moot on their face. If a magazine requires the use of a tool to detach it, it is exempt from the requirements in (f) (3). If an ammunition feeding device requires a tool or disassembly of the action it is not the detachable magazine in question in (f).

Thank you,

David Swanson

Footnote: The Barrett 82A1/82A1-CA is a semi automatic centerfile rifle with a swing down magazine only secured by a screw and also features a pistol grip that protrudes below the action. None of the proposed (f) regulation's exceptions apply to this rifle. DOJ opined in a written letter [ED Note: non-working link to document removed] that the magazine was not a detachable magazine as it was defined at the time by definition (a).

Dear Mr. Amador:

This letter is in response to the publication by the California Department of Justice (“CDOJ”) on November 1, 2006, of the above-referenced document, setting forth proposed changes to California Code of Regulations § 978.20 dealing with the definition of terms used in California Penal Code § 12276.1 to define an “assault weapon” for the purposes of said section. This response is submitted in two sections, set forth below, headed “Procedural Issues” and “Substantive Issues,” respectively.

Procedural Issues

The fifteen (15) day notice and response period afforded in this matter by the CDOJ is inadequate and is not in conformity with the requirements of the Administrative Procedures Act (“APA”) and California Government Code § 11346.8(c) because the proposed changes to § 978.20 are not insubstantial, are not solely grammatical, and most assuredly are not “. . .sufficiently related to the original text that the public was adequately placed on notice that the change could result from the originally proposed regulatory action.” The forty-five (45) day notice and hearing procedure required under California Government Code § 11346.4 is the one which CDOJ should have employed in this instance because the new definition for “capacity to accept a detachable magazine” proposed by CDOJ could in no way be reasonably deemed to be changes that could have resulted from the originally proposed regulatory action, especially in light of the serious and inherent conflicts between the proposed new definition for “capacity to accept a detachable magazine” and the existing definition of “detachable magazine” under existing California Code of Regulations § 978.20(a), as set forth in more detail herein below. If the Office of Administrative Law (“OAL”) were to accept and publish the proposed new definition for “capacity to accept a detachable magazine” without it first having gone through the process required under California Government Code § 11346.4, it would not withstand judicial scrutiny and ultimately would be held invalid and/or unenforceable. Accordingly, please treat this response as my formal request for the forty-five (45) day notice and hearing procedure of California Government Code § 11346.4 with regard to the proposed new definition for “capacity to accept a detachable magazine” so that all persons in this state will have adequate notice and an opportunity to be heard on this important matter.

Substantive Issues

The proposed new language purporting to define the phrase "capacity to accept a detachable magazine" conflicts not only with itself, but also creates confusion and ambiguity where none previously existed because it includes two words already defined in subsection (a), namely the words “detachable magazine.”

In subsection (a), a “detachable magazine” is defined as not including “any ammunition feeding device” as to which the “use of a tool” is required for it to be “removed readily from the firearm.” Thus, if a tool is needed to remove a magazine from a firearm, it is not a “detachable magazine” within the meaning of Penal Code § 12276.1. Note, if you will, that this definition does not attempt to define the characteristics of the “ammunition feeding device” in question separately and apart from the “firearm,” but rather does so, quite logically, in conjunction with the “firearm,” as neither the “ammunition feeding device” alone, nor the “firearm” alone, could give any meaning to the concept of a “detachable magazine.” The subject of this definition is the concept and operation of “detachability,” which cannot be addressed in the abstract, but rather can only be addressed in terms of whether the one object can or cannot be detached from the other. This definition has adequately served, during the time it has been in effect, to inform the people of the State of California what they must do to avoid possessing, manufacturing, selling or transporting an “assault weapon” within the meaning of Penal Code §§ 12276.1 and 12280(a). If the “firearm” has an “ammunition feeding device” attached to it in such a fashion that the removal of same from the “firearm” requires “the use of a tool,” then that “firearm” is not an “assault weapon” within the meaning of Penal Code § 12276.1.

Now the CDOJ, purportedly attempting to “clarify” this situation, desires to promulgate a definition for the phrase “capacity to accept a detachable magazine” which seems on its face to state that if an “ammunition feeding device” can be removed from a “firearm” with the “use of a tool” and is not also either entirely internal to the action of the firearm, or welded into place, or riveted and epoxied into place, or affixed in place in some other fashion whereby the “disassembly of the action” is required to reverse said affixation, then the firearm is an “assault weapon” within the meaning of Penal Code § 12276.1. I say “seems on its face to state” because, in truth, one cannot reasonably ferret out from what the CDOJ has proposed precisely what it is proposing by the language it seeks to promulgate and make a part of the California Code of Regulations. If the proposed new definition of “capacity to accept a detachable magazine” were to become a part of the Code of Regulations, it is respectfully submitted that neither the public subject to Penal Code §§ 12276.1 and 12280(a) nor the law enforcement and judicial officers charged with enforcing said code sections, would be able to ascertain with any constitutional degree of certainty what conduct violates Penal Code § 12280(a) and what conduct does not do so. Such a situation would be to no one’s benefit.

For its part that CDOJ might argue that the existing definition of “detachable magazine” is intended only to define the characteristics of the “ammunition feeding device” and that the proposed new definition of “capacity to accept a detachable magazine” is intended only to define the characteristics of the “firearm” to which the “ammunition feeding device” may or may not be attached. This argument, if advanced by the CDOJ, would necessarily fail, in that as noted above, the definition of “detachable magazine” is not provided to us in a vacuum, but rather in conjunction with the “firearm” to which the “ammunition feeding device” may or may not be attached. Furthermore, it should be noted that Penal Code § 12280(a) can not be violated by possession, manufacture, sale or transport of an “ammunition feeding device” which lacks “the capacity to accept more than 10 rounds.” Only if such an “ammunition feeding device” is a “detachable magazine,” the definition of which necessarily includes the device’s relationship to a “firearm,” is there any issue with Penal Code § 12280(a). If the definition of “detachable magazine” that presently exists in § 978.20(a) is left in place, as the CDOJ presently proposed that it be, any attempt to read the proposed new definition in subsection (f) of “capacity to accept a detachable magazine” together with the definition in subsection (a) of “detachable magazine” can only result in a merry-go-round of nonsensical meanings.

Under subsection (a), an “ammunition feeding device” that requires the “use of a tool” to remove from a “firearm” is not a “detachable magazine.” Ipso facto, a “firearm” into which an “ammunition feeding device” has been inserted and affixed such that the “use of a tool” is required to detach it from said “firearm” is, so long as it is in said configuration, a “firearm” which does not have the capacity to accept a “detachable magazine,” as there is no place in or on said “firearm” to do so, its magazine well already having been filled with something that is, by definition, not a “detachable magazine,” and there being no other orifice in or on said “firearm” into which a “detachable magazine” might be inserted for possible attachment. However, if one attempts to read proposed new subsection (f) together with existing subsection (a), it would seem that one is required to suspend reality and disregard the plain language of subsection (a), because proposed new subsection (f) would at least imply, if it does not so state outright, that a “firearm” with an “ammunition feeding device” attached to it in such a way that the “use of a tool” is required to detach therefrom said “ammunition feeding device” would be legally (though not physically) “capable of accepting a detachable magazine” if the non-“detachable magazine” already in place that cannot be removed without the “use of a tool” is not also (1) contained entirely within the body of the “firearm” rather than affixed within a magazine well of the “firearm,” or (2) welded in place (which in many if not all instances would be impossible due to the dissimilar materials from which a “firearm” and an “ammunition feeding device” are typically constructed, the former most often being fabricated of aluminum or, more recently, carbon fiber, whereas the latter are almost uniformly fabricated from steel or some type of plastic, which is not susceptible of being “welded” to aluminum or carbon fiber by any accepted process) within a magazine well of the “firearm,” or (3) riveted and epoxied in place in the magazine well of the “firearm,” or (4) otherwise affixed in some fashion which can only be reversed, if at all, by first engaging in a “disassembly of the action.”

In addition to the inadequacies detailed above, the lack of definitions for a number of the terms and phrases used in the proposed amendment of subsection (f) would leave the public and law enforcement officials guessing at what is meant by them. For instance, what is a "firearm" for purposes of subdivision (f)? Subdivision (a) uses the terms "firearm action" in conjunction with the term "disassembly." Subdivision (f) (4) talks about "disassembly of the action" but does not use the term "firearm" as a modifier of the term "action." Is, then, a "disassembly of the action" something different than a "disassembly of the FIREARM action"? What is mean by "alterations to the magazine well"? Is the filling of the magazine well with a non-detachable magazine that requires a tool to remove, as stated subsection (a), not an "alteration to the magazine well" that renders it without the "capacity to accept a detachable magazine"? If not, though clearly contrary to the plain language of subsection (a), then what kind of "alteration" is meant by the proposed "clarification" of subsection (f)? Does "alteration of the magazine well" mean affixing a magazine in the magazine well with "ribbon(s) of welding"? If so, this does not make sense and provides no clarification, since nearly all magazines are of a material (steel or plastic) that is dissimilar to the magazine wells into which they might be inserted (aluminum or carbon fiber), and therefore are not susceptible to "welding" within the common usage of that word. Perhaps something other than "welding" as is commonly known is meant by the term "welding" as used in subsection (f)(3)(B)? And what is meant by the terms "...rivet (or other irreversible locking device)" since rivets are not themselves an "irreversible locking device." Rivets can be removed with a "tool," and that being so, how does subsection (f) clarify subsection (a)? Finally, what is meant by "disassembly of the action" as used on subsection (f)(3)(D)? Is this the separation of the upper receiver from the lower receiver? Is it more than that? Is it that plus the removal of the trigger assembly and/or the bolt catch and/or the magazine catch? Subdivision (f)(3)(A) says that a firearm is not "readily modifiable" to "receive a detachable magazine" if it "has no magazine well." Really? The "top loading" Bushmaster Carbon 15 variant, which the CDOJ has expressly approved for sale, even with a flash suppressor and a collapsible stock, does in fact have a magazine well, it's just been sealed by a floor plate of carbon fiber material, material that could be removed with a "tool" in under a minute. The rivet securing the internal 10 round magazine might take a "tool" and another 5-10 seconds to remove, and then the firearm clearly has the capacity to "receive a detachable magazine." All of which being doable without "disassembly of the action." How, then, is that firearm any less "readily modifiable" than, say, a Prince50 maglocked firearm? The proposed "clarification" of subsection (f) is so vague and ambiguous that it would define firearms already expressly declared by the CDOJ as NOT being "assault weapons" to in fact be "assault weapons" because they are "readily modifiable" to "receive a detachable magazine." There is no apparent means by which the concepts introduced in the proposed amendment to subsection (f) can be made harmonious with subsection (a).

The proposed new definition of “capable of accepting a detachable magazine” in subsection (f) would, if adopted, make the existing definition of “detachable magazine” in subsection (a) surplusage. It does so by introducing to the matter at hand the concept of a “firearm” that is “readily modifiable to receive a detachable magazine,” and then attempting to define what is and what is not meant by “readily modifiable.” Without burdening this document further, suffice it to say that the CDOJ is not satisfied with the present definition of a “detachable magazine” that exempts therefrom an “ammunition feeding device” that has been affixed to a “firearm” in such a way that to detach it from the “firearm” the “use of a tool” is required. It appears that the CDOJ wishes to require more than the “use of a tool” in order for an “ammunition feeding device” to be deemed not a “detachable magazine.” It seeks to do this by introducing to § 978.20 a tortured, labyrinthian composition of terms that makes a muddle of the regulation rather than clarifying it. In truth and in fact, what the CDOJ’s proposed new definition seeks to do is delete subsection (a) and replace it with subsection (f) which the CDOJ appears to find entirely more palatable than subsection (a). The rub here is that the CDOJ is attempting to do something in a fashion by which it cannot legally be done.

Requested Action

Without commenting on the ultimate merits of the CDOJ’s position in this matter, the fact is that writing the “use of a tool” exemption out of the definition of “detachable magazine” must be done, if at all, directly, and not by confusion, obfuscation and subterfuge. The CDOJ’s “Initial Statement of Reasons” for introducing the proposed new definition of “capable of accepting a detachable magazine” is disingenuous at best, and at worst is something much more insidious. In U.S. vs. Hodge (9th Cir. 1998), U. S. Circuit Judge John T. Noonan echoed the famous words of U.S. Supreme Court Justice Oliver Wendell Holmes when he wrote, “[T]he government must turn square corners when it employs the heavy engine of the criminal law.” What the CDOJ seeks to do with the proposed amendment of § 978.20(f) is not a square corner. It is anything but. The CDOJ needs to do the right thing here, and here, the right thing would be to withdraw the proposed amendment of § 978.20(f) and re-think its position on this matter. If the exemption from the definition of a “detachable magazine” under § 978.20(a) for an “ammunition feeding device” that requires the “use of a tool” to be detached from a “firearm” is to be done away with, seek to do it forthrightly, through the front door, rather than disingenuously through the back door. The ends do NOT justify the means, and the means need to be carried out in the “square corner” manner that the CDOJ should pride itself on employing.

A copy of this e-mail is being sent to Trutanich-Michel, LLP in order to verify in any final reports that it was received and submitted to OAL for consideration. A courtesy reply to confirm receipt would be appreciated. Thank you for your time and consideration.

Sincerely,

Dear Mr. Amador:

This letter is in response to the publication by the California Department of Justice (CDOJ) on November 1, 2006, of the above-referenced document, setting forth proposed changes to California Code of Regulations 978.20 dealing with the definition of terms used in California Penal Code 12276.1 to define an assault weapon for the purposes of said section. This response is submitted in four parts set forth below:

PART 1 CDOJ: Initial Statement Of Reasons, Section under "Necessity"

My Response: The California Department of Justice is attempting to add clarity to the definition of "capacity to accept a detachable magazine" by relying on the ability to extend the definition for a magazine to the mechanism of the firearm itself. This is in error. In the context of a detachable ammunition-feeding device (magazine), its sole purpose of existence is fundamentally separate and distinct from the mechanism of the firearm itself. You cannot extend terms used in defining one device to another device if they are defined to exist separately. It's like trying to define the tire of an automobile as providing a transportation function by extending the definition of the automobile to the tire.

PART 2 Text Of Modified Regulations: Chapter 12.8, Article 2, Definitions 5469, item (f), paragraph 3, sub paragraph B:

"(B) the magazine is fixed ... by welding...or by multiple ribbon welding.."

My Response: Some Off List Lowers are manufactured of various grades of cast aluminum that may not be compatible with the sheet aluminum used in some magazine manufacturing methods. Indeed some magazines are not weldable if constructed of some grades of sheet steel or polymer plastic. This requirement places undue engineering requirements on the public to modify said firearms in a safe and sufficient method. Is the State prepared to prescribe a particular welding method (TIG MGAW, MIG etc.) and prescribed preheat, post heat processes, and appropriate weldment specification such that dangerous cracking of the base material is prevented?

PART 3 Text Of Modified Regulations: Chapter 12.8, Article 2, Definitions 5469, item (f), paragraph 3, sub paragraph C:

"(C) the magazine is fixed to the receiver with a rivet that is driven through the magazine well and fixed with epoxy or"

My Response: Is the State prepared to relive the public of the burden of exercising engineering expertise not readily available to the common citizen? What type of rivet are you proposing? Are you proposing a blind rivet? In the case of rivets used in the construction of the Golden Gate or Bay Bridges, there is no hole in said rivet to apply a globule of epoxy such that it remains attached to the firearm. Also some types of epoxies can disassociate at the application of heat from a common household match. In this instance would the State prescribe a particular epoxy type as an anaerobic two part, aerobic curing two part, etc?

PART 4 Text Of Modified Regulations: Chapter 12.8, Article 2, Definitions 5469, item (f), paragraph 3, sub paragraph D:

"(D) the modification requires disassembly of the action."

My Response: I am a registered Professional Engineer in the State of California License number M23297. Your attempt to define a firearm as not readily modifiable by using the above term will result in placing the average citizens of the State of California at their peril in attempting to define what steps are necessary to render the magazine as non-detachable through "disassembly of the action". The California legal AR-15 utilizing a fixed non-detachable 10 round magazine is loaded by "disassembling the action". The firearm cannot function if its action is disassembled. Every California citizen who has purchased and configured the magazine to be non-detachable will automatically comply with your proposed changes by simply opening the weapon during the normal and acceptable loading process. The action of a firearm includes all mechanisms associated with the process of storing, loading, activating, directing, and ejecting the projectile and its associated expendable conveyance. I truly hope you find this as confusing as I do.

A copy of this e-mail is being sent to Trutanich-Michel, LLP in order to verify in any final reports that it was received and submitted to OAL for consideration. A courtesy reply to confirm receipt would be appreciated.

Sincerely

Jeff Amador, Field Representative
Department of Justice
Firearms Licensing and Permits Section
P.O. Box 820200
Sacramento, CA 94203-0200

Dear Mr. Amador:

Regarding the New Proposed Regulations (as amended on November 1, 2006) defining “capacity to accept a detachable magazine”, you have received many comments from interested parties explaining to you, in detail, the consequences of the Department of Justice’s proposed “definitions.”

Gun Owners of California adamantly protests this new proposal as onerous, confusing and, in our opinion, contrary to the legislative mandate of the Assault Weapons statutes.

You have undoubtedly read that these regulations would place thousands upon thousands of law abiding citizens into legal jeopardy. These law-abiding citizens have worked hard to comply with the letter of the law and the regulations for many years and now with this proposal, DOJ is changing the rules on them. That is unconscionable.

Without restating all of the objections that you have already received GOC wants to add one additional comment.

The new definition 5469 (f)(1 thru 3 all inclusive) of “capacity to accept a detachable magazine” is in direct conflict with the definition of (a) “detachable magazine” and makes it very confusing, vague and ambiguous.

In definition (a) you state that if an ammunition feeding device requires a tool in order to remove if from the firearm then it is not considered a detachable magazine. This issue was specifically discussed in the legislature when the statute was passed. Now, with definition (f) under the auspices of defining “capacity to accept a detachable magazine” you are stretching beyond the statute’s intent and probable authority by eliminating many of the methods that law-abiding citizens could use to comply with the law and limiting them to only a very few DOJ sanctioned methods. You have in affect rendered the definition for (a) irrelevant.

These regulation changes will serve to confuse the public and put many folks in legal jeopardy.

Even though Gun Owners of California believes the so-called assault weapons statutes are unconstitutional according to the Second Amendment of the United States Constitution, law-abiding Californians have worked hard to comply with the law and the regulations. We stand opposed to the added burden placed on them by these proposed regulations and ask that they not be pursued.

Sincerely,