Duncan v Becerra, Part II

As many of you undoubtedly already know, Judge Benitez issued a stay of his decision pending appeal by DOJ.  This stay was somewhat unusually tailored to protect the thousands of individuals who relied on his decision and acquired LCMs over the last week. 

So, first off… a number of people expressed disappointment with Benitez for issuing the stay.  That is somewhat misguided.  Remember, each “thing” that comes before the court needs to be independently analyzed and held to the standards of accepted “tests”.  For a stay to be issued, the moving party has an extremely low threshold to cross.  Once that threshold has been crossed, a judge is duty-bound to issue the stay.  That is exactly what happened here… notwithstanding a couple of digs he got in to the CA DOJ on the unlikeliness of it prevailing at the appellate court level.

So, as of 1700 on Friday of last week, §32310 is back in effect in all of its pre-Prop 63 glory.  Literally, it is as though nothing happened… except every LCM in California suddenly became “inoculated”.

Remember, it is not your job to prove the magazines were acquired in a legally proscribed manner; it is the burden of the State to prove they were not. 

During the last week, it was perfectly acceptable to gift, manufacture, import, and/or transfer magazines in California.  Those transactions are enjoined from prosecution pursuant to the stay.  Here is the kicker… how does the State prove the defendant came into possession before last week?

As a practical matter… it doesn’t.

That being said… there are some precautions to take, specifically with so-called “assault rifles”.

(If you have arrived here from our newsletter, continue reading here…)

I was in Arizona last week and, as you might have guessed, the largest customer base the gun stores were catering to were California residents who had crossed over to America to buy out the reserves of LCMs to bring back home.  The Arizona gun dealers were happy to accommodate (as I suspect were the stores in Oregon, Nevada, and countless online retailers).

I did see a number of California residents buying 30-round 5.56 mags. 

This motivated me to write this blog entry.

While the magazines themselves are (or were) entirely legal… their use is a little bit more problematic.

California Penal Code § 30515 outlines what is and, by extension, what is not an “assault weapon”.  Please see the code section below: (Hint:  Pay special attention to §§ (F) (2)).

CHAPTER 2. Assault Weapons and .50 BMG Rifles [30500 – 31115]  ( Chapter 2 added by Stats. 2010, Ch. 711, Sec. 6. )

ARTICLE 1. General Provisions [30500 – 30530]  ( Article 1 added by Stats. 2010, Ch. 711, Sec. 6. )

30515.  

(a) Notwithstanding Section 30510, “assault weapon” also means any of the following:

(1) A semiautomatic, centerfire rifle that does not have a fixed magazine but has any one of the following:

(A) A pistol grip that protrudes conspicuously beneath the action of the weapon.

(B) A thumbhole stock.

(C) A folding or telescoping stock.

(D) A grenade launcher or flare launcher.

(E) A flash suppressor.

(F) A forward pistol grip.

(2) A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.

Yep… If you were one of those individuals who chose to make their ARs compliant with the State and chose to do so by going with one of the fixed magazine solutions that requires a “breaking of the action” prior to magazine release, then you, my friend, are an owner of a “fixed magazine rifle” and by definition NOT an “assault weapon”…

Unless you decide to insert one of those sweet 30-round PMAGS you bought last week into that rig… then you run afoul of §§ (F) (2). 

(The irony is that in the worst case scenario, the magazine is, in and of itself, a misdemeanor, and even then, it would be difficult to prove post last week… but by putting it in that magazine well of a perfectly legal firearm, it becomes a felony.  Also ironic is the fact that there is no mention of ammo!  It could be completely dry and still be a felony!)

Bigger irony:  Had you chose to go with a featureless rifle… (yeah.. I know they look silly, but…), you would have removed any “bullet button” release and installed a traditional magazine release.

(Please, for the love of God, tell me you put a traditional magazine release on!  If you wanted to be “extra careful,” and put a fixed magazine release on your featureless rifle, first… tear up your “man card”… unless you are a woman, then you need to tear up your “woman card,” then get that God D#@# thing off of your rifle!!!!  If you leave it on and put a magazine capable of holding more than ten rounds in there, then you, too, are in violation of §§ (F) (2)!!!)

So… someone with a traditional magazine release on a featureless rifle can now freely enjoy shooting his newly acquired 30-round PMAGS.

Brilliant!

Here is the best part:  If the antis had not pushed so hard for Prop 63, and won, we never would have gotten before Judge Benitez and been in this demonstrably better place now than we were prior to Prop 63.

So… on behalf of free people everywhere, Governor Newsom, and Senator De Leon… thank you! 

(Even our side can employ the actions of “useful idiots”… Stalin’s words… not mine!)