The Sickle and Hammer of the State

The Sickle and Hammer

As we draw closer to the State-mandated “assault weapon” registration deadline, I have been fielding numerous calls regarding whether clients should register at all, or avail themselves of the three other alternatives: 1) Ship the firearm to the United States, 2) Install a fixed-magazine rig, or 3) Render the firearm featureless.

As many of you know, I was at first enthusiastic about the idea of registration… that is, until the DOJ promulgated rules that far exceeded the state legislature, rules that, I believe, will ultimately be rendered volitive of separation of powers.  The legislature mandated that semi-automatic rifles, with certain cosmetic features, had to either have those features removed, or be registered as assault weapons.  Beyond that, the legislature was silent.  California DOJ unilaterally decided to go beyond the scope of the elected legislature and enact a stricter regulation than the legislature was able to achieve throughout the legislative process.  DOJ literally created a sub-category of firearms called, “bullet button assault weapons.”  These weapons come into existence when owners choose to avail themselves of registration.  Rather then being designated as “assault weapons” as the legislature intended, they must be kept in the same configuration… utilizing a bullet button for a magazine release.  Notwithstanding the fact that this makes, literally, no logical sense… it places the California DOJ in the untenable position of acting in an illegal fashion.

My position has been to reject this executive branch overreach, and essentially tell DOJ to screw itself by NOT registering “assault weapons.”  Still, there were individuals who wanted to pursue the legal process.  I have consistently advised them to either use the Law Offices of Lieberman & Taormina (or any other licensed attorney for that matter) to assist with the registration process… but, under NO CIRCUMSTANCES ATTEMPT TO REGISTER THEMSELVES.

What follows is a cautionary tale:

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

Last week my friend, Dave, sent me a link about a California subject named Jeffrey Scott Kirschenmann.  Mr. Kirschenmann did not use the services of an attorney, and is now being arraigned for over ten felony weapons charges.  I am upset that Mr. Kirschenmann finds himself in this position, and I suspect negligence (perhaps even arrogance?) might be at the heart of his legal problems.  The intensity of my anger is directed at the State, however, for allowing a situation like this to manifest in the first place.

To put this in perspective, imagine the following scenario:

The State of California has enacted a law which mandates that all current gas go-carts be secondarily registered with the State.  You have other options, of course; you can modify the gas go-cart into an electric one, or you can just remove the engine all together and have a horse-drawn carriage.

Before registering, you need to prove where and when you purchased the go-cart.  If you don’t know, or failed to keep the original receipt, you will be prohibited from registering and, thus, must avail yourself of the two other options.  There was an actual lawsuit about this wherein the plaintiffs argued they were under no legal obligation to keep the original receipts, and now should not be punished for the failure to keep their records.  The judge responded to their pleas by essentially saying, “Yeah… I don’t care.  I don’t like go-carts in the first place.  No one ‘needs’ a go-cart.. and, besides, they can still elect to go with the horse-drawn carriage.”

Oh, and here is the kicker… If you do attempt to register the go-cart, and it turns out that there is a 227A back-space carburetor, which was legal to purchase until last year but is now illegal, well, then, you not only implicate yourself in a criminal act violating your Fifth Amendment rights, but you have also essentially given probable cause to allow for a search warrant of your house, implicating your Fourth Amendment rights.  Since the attempt at registration was done in your home, on your computer, with your camera taking pictures of the go-cart to send to Sacramento, your Third Amendment rights have also come into play.  (That last one was for Cosmo… fight on, Major!!!)

If this seems like a ridiculous reason to prosecute someone, just look at Mr. Kirshenmann’s case.  Mr. Kirshenmann is a very successful farmer.  He owns property in California, as well as other western states.  He legally purchased suppressors in Idaho and brought them back into California.  These suppressors are used for varmint control on his properties, and it is highly likely that he did not realize they were not legal in California.  He also was in possession of short-barreled rifles… again, perfectly legal in most other states, and perfectly suited for varmint eradication… but, again, illegal in California.

Why do I suspect that he was clueless that he was in possession of illegal items?

He tried to register them as “assault weapons” pursuant to SB 880.  He, literally, was trying to comply with a confusing and illogical law and, in the process, sent evidence to CA DOJ that he was committing a crime.

Now DOJ could have easily called him and “instructed” him to move the weapons out of state.  It could have even visited him and confiscated the suppressors… and the weapons.  But it would be so much more fun to prosecute Mr. Kirshenmann, make him a felon, make it impossible to possess weapons anywhere in the United States for the rest of his life… and, what the hell, put him in jail for a while to boot!

DOJ and the DA decided they needed to make him an example.

The irony is those who were thinking maybe registration would be the way to go, have seen this story and now reasonably are gravitating to featureless or fixed magazine.

Way to go DOJ!  Keep reaching for that rainbow.

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