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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #3881  
Old 11-14-2022, 2:01 PM
taperxz taperxz is offline
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Quote:
Originally Posted by RickD427 View Post
Please see Marbury v Madison.

The net effect is that a law that has been finally determined to be unconstitutional is left without effect, even if it still remains "on the books."

That actually occurred with California's "Stop and ID" statute that was ruled unconstitutional by the U.S. Supreme Court in Kolender v Lawson. California kept the law in place for nearly a decade afterwards. It just had no effect.
It’s basically a voided check. It’s on the record but no longer valid to use.
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  #3882  
Old 11-14-2022, 2:03 PM
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Originally Posted by ar15barrels View Post
Without the 30515 definitions, there are only AW's by name or by registration.
That means that as long as it's not an unregistered named AW, it could be sold and possessed in CA.
The features ban goes away with 30515 going away.
Banned by name will also be enjoined
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  #3883  
Old 11-14-2022, 2:18 PM
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Originally Posted by RickD427 View Post
A crime is an unlawful act to which a penalty is attached (refer to Penal Code section 15).
An unlawful act to which no penalty is attached is not a crime.
What is your take on this:

Quote:
§ 5477. Registration of Assault Weapons Pursuant to Penal Code Section 30900(b)(1);
Post-Registration Modification of Registered Assault Weapons, Prohibition.
(a) The release mechanism for an ammunition feeding device on an assault weapon registered pursuant to Penal Code section 30900, subdivision (b)(1) shall not be changed after the assault weapon is registered. A weapon’s eligibility for registration pursuant to Penal Code section 30900, subdivision (b)(1) depends, in part, on its release mechanism. Any alteration to the release mechanism converts the assault weapon into a different weapon
from the one that was registered
https://oag.ca.gov/sites/all/files/a...let-button.pdf

Quote:
PC 30900.
(a) (1) Any person who, prior to June 1, 1989, lawfully possessed an assault weapon, as defined in former Section 12276, as added by Section 3 of Chapter 19 of the Statutes of 1989, shall register the firearm by January 1, 1991, and any person who lawfully possessed an assault weapon prior to the date it was specified as an assault weapon pursuant to former Section 12276.5, as added by Section 3 of Chapter 19 of the Statutes of 1989 or as amended by Section 1 of Chapter 874 of the Statutes of 1990 or Section 3 of Chapter 954 of the Statutes of 1991, shall register the firearm within 90 days with the Department of Justice pursuant to those procedures that the department may establish.

(2) Except as provided in Section 30600, any person who lawfully possessed an assault weapon prior to the date it was defined as an assault weapon pursuant to former Section 12276.1, as it read in Section 7 of Chapter 129 of the Statutes of 1999, and which was not specified as an assault weapon under former Section 12276, as added by Section 3 of Chapter 19 of the Statutes of 1989 or as amended at any time before January 1, 2001, or former Section 12276.5, as added by Section 3 of Chapter 19 of the Statutes of 1989 or as amended at any time before January 1, 2001, shall register the firearm by January 1, 2001, with the department pursuant to those procedures that the department may establish.

(3) The registration shall contain a description of the firearm that identifies it uniquely, including all identification marks, the full name, address, date of birth, and thumbprint of the owner, and any other information that the department may deem appropriate.

(4) The department may charge a fee for registration of up to twenty dollars ($20) per person but not to exceed the reasonable processing costs of the department. After the department establishes fees sufficient to reimburse the department for processing costs, fees charged shall increase at a rate not to exceed the legislatively approved annual cost-of-living adjustment for the department’s budget or as otherwise increased through the Budget Act but not to exceed the reasonable costs of the department. The fees shall be deposited into the Dealers’ Record of Sale Special Account.

(b) (1) Any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined in Section 30515, including those weapons with an ammunition feeding device that can be readily removed from the firearm with the use of a tool, shall register the firearm before July 1, 2018, but not before the effective date of the regulations adopted pursuant to paragraph (5), with the department pursuant to those procedures that the department may establish by regulation pursuant to paragraph (5).

(2) Registrations shall be submitted electronically via the Internet utilizing a public-facing application made available by the department.

(3) The registration shall contain a description of the firearm that identifies it uniquely, including all identification marks, the date the firearm was acquired, the name and address of the individual from whom, or business from which, the firearm was acquired, as well as the registrant’s full name, address, telephone number, date of birth, sex, height, weight, eye color, hair color, and California driver’s license number or California identification card number.

(4) The department may charge a fee in an amount of up to fifteen dollars ($15) per person but not to exceed the reasonable processing costs of the department. The fee shall be paid by debit or credit card at the time that the electronic registration is submitted to the department. The fee shall be deposited in the Dealers’ Record of Sale Special Account to be used for purposes of this section.

(5) The department shall adopt regulations for the purpose of implementing this subdivision. These regulations are exempt from the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
There is nothing in 30900(b)(1) or any other part of 30900 for that matter that talks about any limitations on post registration modification.
How would 5477 actually get authority when the law has no such wording about any post registration activities?
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  #3884  
Old 11-14-2022, 2:19 PM
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Originally Posted by taperxz View Post
Banned by name will also be enjoined
Perhaps, but it's not part of the complaint in this case.
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  #3885  
Old 11-14-2022, 2:37 PM
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Originally Posted by ar15barrels View Post
Any alteration to the release mechanism converts the assault weapon into a different weapon...
This is easily one the single most laughable "laws" the DoJ completely fabricated out of ... nothing. It also put the nail the coffin regarding my own personal opinion of FGG's credibility.

Any alteration? Changing the color? The finish? Swapping out a literally identical part?
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  #3886  
Old 11-14-2022, 2:40 PM
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Originally Posted by Sgt Raven View Post
Throw a pistol grip on or swap an upper with a flash hinder on your featureless rifle. Once the AG/DOJ gets a stay,switch it back. You have legally acquired AWs in the interim. If Judge Benitez doesn't stay his order, there will be a period of time before the 9th issues one. It may be a small period, but it would be there.
Technically would inserting a >10 round magazine in the firearm make it an assault weapon?

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  #3887  
Old 11-14-2022, 2:44 PM
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Originally Posted by sparky1979 View Post
Technically would inserting a >10 round magazine in the firearm make it an assault weapon?
A featureless rifle can accept any size magazine and still be featureless.

Disclaimer: IANAL.
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  #3888  
Old 11-14-2022, 3:03 PM
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Originally Posted by sparky1979 View Post
Technically would inserting a >10 round magazine in the firearm make it an assault weapon?
Only if the firearm is a centerfire semi-auto rifle or pistol configured with features and a fixed magazine which is not registered as an assault weapon.
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  #3889  
Old 11-14-2022, 3:06 PM
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Originally Posted by curtisfong View Post
Swapping out a literally identical part?
No.

Quote:
(b) The prohibition in subdivision (a) does not extend to the repair or like-kind replacement of the mechanism
https://oag.ca.gov/sites/all/files/a...let-button.pdf
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  #3890  
Old 11-14-2022, 3:23 PM
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Anyone else find it sad that those who preach tolerance CAN'T allow the existence, occurrence, or practice of (something that they do not necessarily like or agree with) without interference.

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Last edited by Metal God; 11-14-2022 at 3:27 PM..
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  #3891  
Old 11-14-2022, 4:53 PM
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So armed scholar (youtube) basically said the hearings on the 12th are to review giffards request to reconsider the rejection of an amicus brief, and to review the states request to reconsider for more time.

IMNAL but that was not my impression in reading the docs posted here.
Did I miss or misunderstand something? or???

Its clearly possible that what AS says is the only reason for the 12th hearing, but if that is the case then I think that is inside info that is not public?

Confused by the whole mess...
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  #3892  
Old 11-14-2022, 5:05 PM
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Yeah it says that on the doc

Miller is on a 141 MOTION for Reconsideration , Duncan is for a Status Conference , not sure what Rhodes is for but would guess status conference
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  #3893  
Old 11-14-2022, 5:47 PM
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Quote:
Originally Posted by ar15barrels View Post
What is your take on this:


https://oag.ca.gov/sites/all/files/a...let-button.pdf



There is nothing in 30900(b)(1) or any other part of 30900 for that matter that talks about any limitations on post registration modification.
How would 5477 actually get authority when the law has no such wording about any post registration activities?
Here's my very short summary recently made in another thread:
https://www.calguns.net/calgunforum/...5#post27419015

I think that it's a real stretch by the DOJ. Regulations implement statutes. An agency can use a regulation to set the specifics of how a broadly written statute is carried out. There is a lot of case law that provides for regulations to be accorded deference by the courts. But at the same time, the regulation has to have a basis in the law. The agency cannot make stuff up "out of thin air."

DOJ isn't completely "making stuff up here." There actually is a legal basis for their claim, but they've really stretched their reading of both some case law, and some statutory law.

The Fourth Circuit ruled in Broughman v Carver that an FFL01 who purchased rifle actions that were already firearms, and who custom outfitted them for his customers was "Manufacturing" the completed rifles that he sold. The court refused to accept that the weapons were already firearms when he purchased them. Broughman set a rule that a "new" firearm could be "manufactured" from an old firearm if it were changed enough. Keep in mind that Broughman was a Fourth Circuit case and not binding in California.

California law does have a definition of "Manufacturing" a firearm in Penal Code section 29180 that includes Broughman-like language that one can "Manufacture" a firearm by assembling the components of a firearm. It is not necessary to "Manufacture" the receiver. PC 29180 contains language limiting its application to the initial assignment of a serial number.

But there is no other more global definition of "Manufacturing" in statute, and that leaves California courts clear to apply PC 29180' definition as a matter of interpretation.

So, if you:

1) Accept the holding of Broughman v Carver (you don't have to, it's a Fourth Circuit case) and,

2) You consider the meaning of "Manufacture" as defined in PB 29180 (you really have to, it's in statute) and

3) You accept that the meaning of "Manufacture" applies across the board (because a California court could do so, even if they haven't done it yet).

Then there is a basis for the regulation.
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  #3894  
Old 11-14-2022, 5:52 PM
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The point is, replacing a single part is clearly not manufacture by any reasonable definition. If it were possible to make it illegal to change the part by simply saying "the weapon is no longer in a legal configuration" or "the weapon was illegally modified" they would have.

Relying on saying it is an entirely new weapon that did not exist before very clearly exposes the depth of their dishonesty.
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  #3895  
Old 11-14-2022, 6:26 PM
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Dishonest or not definitions matter and if you change a non Assault weapon into an assault weapon you clearly ( in the states mind ) have completely changed the weapon regardless of how many parts changed to do so . Hell you only need to change the FCG to make it a machine gun and that changes the gun completely in there minds I’m sure .

I think the question might be are you changing the configuration into a new firearm if when done you are still with in the same AW definition ? It would seem featureless to AW might be manufacturing but AW to AW is just more of the same ???
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allow the existence, occurrence, or practice of (something that one does not necessarily like or agree with) without interference.

Anyone else find it sad that those who preach tolerance CAN'T allow the existence, occurrence, or practice of (something that they do not necessarily like or agree with) without interference.

I write almost everything in a jovial manner regardless of content . If that's not how you took it please try again

Last edited by Metal God; 11-14-2022 at 7:22 PM..
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  #3896  
Old 11-14-2022, 8:25 PM
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Quote:
Originally Posted by RickD427 View Post
Here's my very short summary recently made in another thread:
https://www.calguns.net/calgunforum/...5#post27419015

I think that it's a real stretch by the DOJ. Regulations implement statutes. An agency can use a regulation to set the specifics of how a broadly written statute is carried out. There is a lot of case law that provides for regulations to be accorded deference by the courts. But at the same time, the regulation has to have a basis in the law. The agency cannot make stuff up "out of thin air."

DOJ isn't completely "making stuff up here." There actually is a legal basis for their claim, but they've really stretched their reading of both some case law, and some statutory law.

The Fourth Circuit ruled in Broughman v Carver that an FFL01 who purchased rifle actions that were already firearms, and who custom outfitted them for his customers was "Manufacturing" the completed rifles that he sold. The court refused to accept that the weapons were already firearms when he purchased them. Broughman set a rule that a "new" firearm could be "manufactured" from an old firearm if it were changed enough. Keep in mind that Broughman was a Fourth Circuit case and not binding in California.

California law does have a definition of "Manufacturing" a firearm in Penal Code section 29180 that includes Broughman-like language that one can "Manufacture" a firearm by assembling the components of a firearm. It is not necessary to "Manufacture" the receiver. PC 29180 contains language limiting its application to the initial assignment of a serial number.

But there is no other more global definition of "Manufacturing" in statute, and that leaves California courts clear to apply PC 29180' definition as a matter of interpretation.

So, if you:

1) Accept the holding of Broughman v Carver (you don't have to, it's a Fourth Circuit case) and,

2) You consider the meaning of "Manufacture" as defined in PB 29180 (you really have to, it's in statute) and

3) You accept that the meaning of "Manufacture" applies across the board (because a California court could do so, even if they haven't done it yet).

Then there is a basis for the regulation.

Is unscrewing one screw enough to say you are manufacturing a new firearm? Or how about installing an ambi release on a gun and leaving the bulletin button in place as is?
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  #3897  
Old 11-14-2022, 8:56 PM
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I think Rick is right when it gets to that nuanced of questions, we really need to see what the ruling actually says first .
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allow the existence, occurrence, or practice of (something that one does not necessarily like or agree with) without interference.

Anyone else find it sad that those who preach tolerance CAN'T allow the existence, occurrence, or practice of (something that they do not necessarily like or agree with) without interference.

I write almost everything in a jovial manner regardless of content . If that's not how you took it please try again
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  #3898  
Old 11-14-2022, 10:07 PM
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Quote:
Originally Posted by jcwatchdog View Post
Is unscrewing one screw enough to say you are manufacturing a new firearm? Or how about installing an ambi release on a gun and leaving the bulletin button in place as is?
While Rick and I have debated Broughman v Carver there is a distinction in that case that IMHO must be considered. Broughman, who had a license as a gunsmith, was working on parts he purchased and owned to create custom firearms he would offer for sale. In talking to the ATF and FFLs, the distinction is that a mfg works on his own parts while a gunsmith works on a customer's parts. Therefore, Broughman needed a 07FFL (mfg). In trying to apply this case, I do not think that you can ignore the fact the Broughman was modifying the receivers for the purpose of resale, which is not the case when a gunsmith is working on a customer's receiver. But as Rick has said, who know what a CA court will say.
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  #3899  
Old 11-14-2022, 10:12 PM
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Originally Posted by Metal God View Post
you only need to change the FCG to make it a machine gun and that changes the gun completely
Changing a gun (let alone gaining possession of a full auto FGC by itself) is very different from making *an entirely different weapon*.

Again, the DoJ isn't saying the new part is illegal, or that the conversion is illegal.

They're literally saying it is a totally "different weapon".

They did this because *there is nothing in the legislation that covers conversion or illegal parts*.

It is astonishing that people are taking the DoJ at their word and do not see that they're flat out lying.
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  #3900  
Old 11-15-2022, 7:51 AM
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Lol I’m now taking anyone at there word . Just pointing out there likely argument. You are correct, maybe I should not say completely new firearm. New category of firearm may be more accurate. ie assault weapons, featureless, machine gun , SBR , semi auto etc . My point had nothing to do with how hard it is to get the parts needed nor do laws . The most likely reason things are difficult to Acquire is the very fact that they are illegal and nobody makes them because Of that reason .

Featureless to Aw = one screw and one part ( grip )
Semi auto rifle to SBR = one nut and one part ( barrel )

Also I’ve found it to be a big mistake to live in my own world of belief . One should always consider the other side and how there arguments might be presented. I think it’s called straw manning the argument. I do it often to better understand my position and Sheer up my argument .
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allow the existence, occurrence, or practice of (something that one does not necessarily like or agree with) without interference.

Anyone else find it sad that those who preach tolerance CAN'T allow the existence, occurrence, or practice of (something that they do not necessarily like or agree with) without interference.

I write almost everything in a jovial manner regardless of content . If that's not how you took it please try again

Last edited by Metal God; 11-15-2022 at 8:13 AM..
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  #3901  
Old 11-15-2022, 8:29 AM
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Quote:
Originally Posted by Metal God View Post
Lol I’m now taking anyone at there word . Just pointing out there likely argument. You are correct, maybe I should not say completely new firearm. New category of firearm may be more accurate. ie assault weapons, featureless, machine gun , SBR , semi auto etc . My point had nothing to do with how hard it is to get the parts needed nor do laws . The most likely reason things are difficult to Acquire is the very fact that they are illegal and nobody makes them because Of that reason .

Featureless to Aw = one screw and one part ( grip )
Semi auto rifle to SBR = one nut and one part ( barrel )

Also I’ve found it to be a big mistake to live in my own world of belief . One should always consider the other side and how there arguments might be presented. I think it’s called straw manning the argument. I do it often to better understand my position and Sheer up my argument .
It's a horsesh*t argument. No matter the linguistics and (supposedly) legal gymnastics/symantics one engages in the "regulation" is DESIGNED to infringe upon the right - just like the wide swath of so-called "gun control" laws here in CA. It is only recently (since the Founding) that the mandarins that seek to rule over us even imagined telling a free people how they could arm themselves or that they could not, or that they could only select from models THEY approve of.

I think we'd all be a lot better off if we corrected our erstwhile masters consistently and often.

Because we're a one-party State and the fix is in deeper than just about anywhere else, it will take a lot more effort.
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  #3902  
Old 11-15-2022, 8:34 AM
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Quote:
Originally Posted by Metal God View Post
Lol I’m now taking anyone at there word . ust pointing out there likely argument.
......snip........


Also I’ve found it to be a big mistake to live in my own world of belief . One should always consider the other side and how there arguments might be presented. I think it’s called straw manning the argument. I do it often to better understand my position and Sheer up my argument .

I think the term you're looking for is, "Steel Man". Where you present the strongest argument for their side.
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Old 11-15-2022, 9:32 AM
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We are here now:

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  #3904  
Old 11-15-2022, 6:07 PM
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Quote:
Originally Posted by Metal God View Post
New category of firearm may be more accurate.
The issue here is that the legislature consciously (as in they approached expansions of the assault weapons ban differently in the past) made bullet buttons illegal by replacing the “accepts a non-detectable magazine” language with “does not have a fixed magazine” such that the new language included both standard magazine releases and bullet buttons, together, into the same category of prohibited weapon.

There was some legislative dialog / briefing that I’ve dug up in the past in one of these threads that basically stated an argument that there was no significant difference between bullet buttons and standard releases and that was why the bill was needed in the first place.
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  #3905  
Old 11-15-2022, 6:27 PM
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I think the term you're looking for is, "Steel Man". Where you present the strongest argument for their side.
Thanks , yes .
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Tolerate
allow the existence, occurrence, or practice of (something that one does not necessarily like or agree with) without interference.

Anyone else find it sad that those who preach tolerance CAN'T allow the existence, occurrence, or practice of (something that they do not necessarily like or agree with) without interference.

I write almost everything in a jovial manner regardless of content . If that's not how you took it please try again
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  #3906  
Old 11-20-2022, 7:26 PM
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.... that there was no significant difference between bullet buttons and standard releases and that was why the bill was needed in the first place.

And it didn't help the BB's status with the punks at gun shows sellng "Mag-Magnet" override devices receovering the operational status of the BBs - and trying to call them a tool.

These punk sellers didn't talk to anyone competent, got lotsa people in trouble, and at least 2 (IIRC - absolutely sure of 1) were convicted on felony AW charges.
[There was a reason some of these sellers were demonstrating on bare receivers or unmilled "80percenters" or blue gun receivers.]
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  #3907  
Old 11-20-2022, 10:09 PM
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And it didn't help the BB's status with the punks at gun shows sellng "Mag-Magnet" override devices receovering the operational status of the BBs - and trying to call them a tool.

These punk sellers didn't talk to anyone competent, got lotsa people in trouble, and at least 2 (IIRC - absolutely sure of 1) were convicted on felony AW charges.
[There was a reason some of these sellers were demonstrating on bare receivers or unmilled "80percenters" or blue gun receivers.]
Wonder if they will be able to get their convictions reversed on Habeas after the AW ban is declared unconstitutional?
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  #3908  
Old 11-21-2022, 4:38 PM
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Wonder if they will be able to get their convictions reversed on Habeas after the AW ban is declared unconstitutional?
Sadly, I'm very unclear that someone convicted of X - then X deactivated by courts a significant time afterward - would be able to 'cancel' that without significant legal efforts.
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  #3909  
Old 11-21-2022, 7:28 PM
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Sadly, I'm very unclear that someone convicted of X - then X deactivated by courts a significant time afterward - would be able to 'cancel' that without significant legal efforts.
And that just sucks. It seems that if the law is determined to be unconstitutional then it would follow that it was unconstitutional before as well. That should count for something.
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  #3910  
Old 11-21-2022, 7:49 PM
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And that just sucks. It seems that if the law is determined to be unconstitutional then it would follow that it was unconstitutional before as well. That should count for something.
That should count for everything.
An unconstitutional law is null and void, from the moment it is enacted..
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First they came for Trump and i said nothing because I wasn't a Trump supporter...........
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Old 11-22-2022, 10:28 AM
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That should count for everything.
An unconstitutional law is null and void, from the moment it is enacted..
It’s Kalifornia
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  #3912  
Old 11-22-2022, 11:59 AM
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Sadly, I'm very unclear that someone convicted of X - then X deactivated by courts a significant time afterward - would be able to 'cancel' that without significant legal efforts.
No question that it would take significant legal efforts. I had a client who, when he was represented by another attorney, was convicted of possession of stolen property and given a 3 strikes life sentence where one of the strikes was a conviction for hit and run. After he had been in prison for 5+ years the Third District Court of Appeal held in a different case that hit and run was not a strike. I challenged his sentence as unauthorized in a Habeas petition. The trial court agreed and my client was freed.
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  #3913  
Old 11-25-2022, 2:57 PM
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Yeah it says that on the doc

Miller is on a 141 MOTION for Reconsideration , Duncan is for a Status Conference , not sure what Rhodes is for but would guess status conference
I'm going to to presume that saint benitez will deny the notion for reconsideration and come up with a decision soon regarding this case.
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  #3914  
Old 11-25-2022, 8:08 PM
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https://www.youtube.com/shorts/s8ue1_DdtJ8
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  #3915  
Old 11-25-2022, 9:12 PM
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old video
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  #3916  
Old 11-27-2022, 2:03 PM
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How long after the trail date should we expect Judge Benitez to deliver his ruling?
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  #3917  
Old 11-27-2022, 5:08 PM
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How long after the trail date should we expect Judge Benitez to deliver his ruling?
I would wager it taking no longer than one month.
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  #3918  
Old 11-27-2022, 8:31 PM
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Wonder if they will be able to get their convictions reversed on Habeas after the AW ban is declared unconstitutional?
I will note at least several of these individuals were also convicted of mfg,
possibly multiple counts - not just simple AW possession. Esp the dudes
at gun show(s) doing on video - assembly/disassembly cycles.

Only simple AW possession (and likely single count) treatable as wobbler.

In theory an illegal AW possessor charged/convicted of felony AW possession:
  • and having an otherwise clean record;
  • including being 'clean' from time of conviction onward;
  • after some time
  • with agreement from (or at least lack of opposition) from DA office;
... can apply for a "17(b)" motion to re-sentence to misdemeanor which
then allows full civil rights recovery.

This is also assuming that at original trial defense tried to go for an AB2728 resolition (nuisance charge, $300 fine and surrender of gun).
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  #3919  
Old 11-28-2022, 6:59 AM
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I would wager it taking no longer than one month.
good! and a permanent injunction to go along with the ruling would make it a truly happy new year
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  #3920  
Old 11-28-2022, 7:28 AM
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It's only permanent until it gets to the 9th for appeal. Thats where the real fun and GAMES start. JMO
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