Gun Laws That Do Not Make Sense,,, Literally!

By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli

Gun Laws That Do Not Make Sense, Literally!
Gun Laws That Do Not Make Sense, Literally!
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -( California is playing the child’s game of “leapfrog” with New York and with other States that enact draconian firearms laws.

What do we mean by that? Just this: as one State Legislature drafts and enacts ever more draconian gun laws, the other States follow suit and attempt to do the first State, one better. Let’s see how this plays out.

The New York State Legislature in Albany, NY, rewrote the law defining the expression‘assault weapon.’ The Safe Act became effective on January 15, 2013 and was the de facto model for new antigun laws around the Country. The Safe Act was also the de facto model for Dianne Feinstein’s failed effort to enact a new federal assault weapons’ ban and ammunition ban in 2013. Fortunately, Republicans in Congress and the NRA stopped a federal “Safe Act” in its tracks.

The Sandy Hook Elementary School shooting, that took place on December 14, 2012, in Newtown, Connecticut, was the impetus for – actually the pretext for – implementation of new and highly restrictive gun and ammunition bans.

Notwithstanding oppressive gun restrictions in New York, the Safe Act changed and added yet ever more restrictive provisions to the New York Penal Code and to other Statutory Sections of the Consolidated Laws of New York.

The drafters of the Safe Act aimed to ban ever more types of guns. To make guns bans palatable to the public, the drafters of the Safe Act continued to use the artifice of rhetoric to create the illusion that some firearms were evil. They called these firearms “assault weapons.”

Once a firearm is defined as an ‘assault weapon,’ that firearm becomes, at the stroke of a pen, a “banned weapon.” Under present New York law, specifically, NY CLS Penal § 265.00(22)(a), firearms, namely, rifles and pistols that, one, are semi automatic in operation,two, can accept a detachable magazine and – if the first two necessary conditions are met – then three, at least one of a specific set of features as prescribed in the NY CLS Penal § 265.00(22)(A). If all three conditions are met, then, under New York law, those firearms are, by virtue of a legal fiction, ‘assault weapons,’ and are, therefore, banned weapons.

Rossi Circuit Judge Rifle/Shotgun
Rossi Circuit Judge Rifle/Shotgun

Shotguns that are, one, semi automatic in operation and, two, have at least one of a particular set of characteristics as set forth in the NY Safe Act are also ‘assault weapons.’ And the New York Safe Act adds a fourth category of “assault weapons.” Shotguns that utilize a revolving cylinder are, by definition, also ‘assault weapons’ and therefore banned weapons.

At the moment, typical handguns that utilize a revolving cylinder, and rifles that utilize a revolving cylinder – rare as they are – are not, under present New York law, defined as‘assault weapons,’ but who can say what the future holds if antigun legislators, such as New York Senator Jeff Klein, continue to control the politics of gun ownership and possession and draft ever more heinous gun laws.

Let us now compare the definitions for rifles that are also ‘assault weapons,’ as those definitions appear in both the California Penal Code and the New York Penal Code, because CA A.B. 1663, throws a wrench into the mix specifically in respect to rifles.

In the New York Penal Code rifles that are also assault weapons must, as we have said, be semi automatic in operation and also be capable of accepting a detachable magazine. These are necessary conditions that must be fulfilled before a weapon can be considered an‘assault weapon’ in New York. If and only if a rifle is semi automatic in operation and is capable of accepting a detachable magazine, then NY CLS Penal § 265.00(22)(A), says that we look for additional characteristics that a rifle might have if it is to be deemed an ‘assault weapon’ under New York law. So, then, if the rifle has at least one additional characteristic, for example, a second handgrip, or a flash suppressor, or a folding or telescoping stock, or a bayonet mount, then the rifle is, under, NY CLS Penal § 265.00(22)(A), an assault weapon.Otherwise it isn’t.

Cal Pen Code § 30515(a)(1), at the moment, reads much like NY CLS Penal § 265.00(22)(A). Cal Pen Code § 30515(a)(1) sets forth three requirements for rifles that are also assault weapons, two, of which, like New York, are necessary conditions that must be fulfilled: one,the rifle must be centerfire semi automatic in operation, and two, the rifle must have the capacity to accept a detachable magazine. If those necessary conditions are met, then we look to see if the rifle has at least one of several listed features such as, inter alia, a pistol grip, a flash suppressor, a folding or telescoping stock, or thumbhole stock. If these three conditions are met, the firearm in question is an “assault weapon” and, therefore, a banned weapon under California law. Thus, we see that Cal Pen Code § 30515(a)(1), as it presently reads, mirrors NY CLS Penal § 265.00(22)(a) in every critical respect.

Even before CA A.B. 1663 was drafted, California “did New York one better.” Under present California law, rifles that are also assault weapons include, under Cal Pen Code 30515(a)(2), “A semi automatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.”

Recall, under New York law, rifles that are also assault weapons must be semi automatic in operation and be capable of accepting a detachable magazine only. So, under present New York law, no rifle is an assault weapon that happens to have a non-detachable, i.e., fixed, magazine. A rifle might have a magazine that can hold 100 rounds of ammunition. If that magazine is fixed to the rifle, that is to say, if that magazine cannot be readily detached from the body of the rifle, the rifle is not an ‘assault weapon’ under present New York law. In California, on the other hand, under Cal Pen Code § 30515(a)(2), a rifle that has a fixed magazine that is capable of holding more than ten rounds of ammunition is an ‘assault weapon.’ So, in the California Penal Code, unlike the New York Penal Code, a semi automatic rifle may, under the appropriate circumstances, based on definition, be deemed an assault weapon if the rifle utilizes either a detachable or fixed ammunition magazine.

Now, what would CA A.B. 1663 do, if enacted?

CA A.B. 1663 modifies Cal Pen Code § 30515(a)(1), which would be amended to read: a rifle is an assault weapon if that weapon is a “semi automatic centerfire rifle that does not have a fixed magazine with the capacity to accept no more than 10 rounds.”

[ WTF ] Do you understand the meaning of that sentence? Read it again. In fact, read it several times, but don’t be upset if you continue to scratch your head in bewilderment as to the meaning of that sentence; for, the meaning of that sentence isn’t clear to us either.

The California legislators, who drafted that sentence – making liberal use of negatives – apparently derive pleasure from torturing the English language as much as they enjoy torturing those California residents and U.S. citizens who choose to exercise their fundamental right to keep and bear arms. Cal Pen Code § 30515(a)(1), as drafted by the Legislature, is inherently ambiguous. That was obviously the intention of its drafters.

Under one interpretation – a more conservative interpretation – a rifle is an assault weapon,in California, if it is a centerfire semi automatic weapon that can accept a detachable magazine that is capable of holding more than ten rounds. However, under a liberal interpretation of the ambiguous sentence, a centerfire semi automatic rifle is an assault weapon that can accept a detachable magazine, regardless of the number of rounds of ammunition the magazine might be capable of holding. An argument can be made for either interpretation and, if CA A.B. 1663 is enacted, and thereafter challenged, it will take a court of law to decide which interpretation is correct.

Circular Logic Warning
Circular Logic Warning

You will note, too, something else about the definition of ‘assault weapon’ as promulgated in the revised Cal Pen Code § 30515(a)(1). In the revised Cal Pen Code § 30515(a)(1),there is something missing. In the original version of that statutory section, a centerfire semi automatic rifle is not deemed to be an assault weapon, unless it have at least one of several enumerated characteristics. That requirement has been eliminated in the revision.

Essentially, the new Cal Pen Code § 30515(a)(1) – if CA A.B. 1663 is enacted and codified into law – is the obverse of Cal Pen Code § 30515(a)(2), which reads that a rifle is an assault weapon if it is “A semi automatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.”

But, the idea here is that, under a liberal interpretation of the ambiguous sentence – as the new Cal Pen Code § 30515(a)(1) reads – the number of rounds that a detachable magazine can hold is not decisive or even relevant to the issue whether a centerfire semi automatic rifle is an assault weapon. So long as a rifle is capable of accepting a detachable  magazine – even if the magazine is capable of holding only one round – that will be sufficient to transform the rifle into an assault weapon, and, therefore, a banned weapon, in California.

Let’s distill all of this. So, if CA A.B. 1663, becomes law a rifle is also an assault weapon,and therefore, a banned weapon in California under two scenarios:

Under Cal Pen Code § 30515(a)(1), as amended by CA A.B. 1663, a rifle is an assault weapon if it is a centerfire, semi automatic, and it is capable of accepting a detachable magazine, regardless of the number of rounds that the rifle’s detachable magazine may hold(under a liberal interpretation of the amended statute). And, under Cal Pen Code § 30515(a)(2)the language which remains unchanged – a rifle is an assault weapon if it is a centerfire, semi automatic and has a fixed magazine that is capable of holding more than ten rounds.

In the continuing game of “leapfrog,” antigun forces in the New York Legislature may be, even now, drafting new legislation, redefining and refining the definition of ‘assault weapon’ to “improve upon” California’s assault weapons fetish.

If right of the American people to keep and bear arms, as embodied in the Second Amendment, is to survive in the 21st Century, it is incumbent upon each American to defend that right against the forces intent on destroying it, just as the Second Amendment was, itself, meant to defend the sanctity of each individual law-abiding American.

The Second Amendment protects us so long as we protect it.

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  • 13 thoughts on “Gun Laws That Do Not Make Sense,,, Literally!

    1. Time to stock up on precious metals..May I suggest Lead and Brass..Gunowners must VOTE as a one issue voter in this next election..If we loose the Second, we loose the country..We then become mere subjects and can no longer carry the title of CITIZEN..

    2. any and all gun laws are a violation of the second ammendment!!!! There are no ifs ands or butts in the second ammendment. No one will ever take my guns away from me while I can still pull a trigger !!!!!! I am a 65 year old father of 3 who does not break the laws that are legal laws !!!!!!!

    3. Dear Tenring Rob, I would not say that NRA has written any State off. Some States are more difficult to contend with, certainly, but the problem rests, in the first instance, with the public. The politicians that one sees in Office are a reflection of what the public wants or what the public has been conditioned to believe that it wants.

    4. Rick, the short answer to your question is that many of these laws are being contested in court by organizations that have our back, such as NRA. However, with all of the restrictive gun laws in existence, and with new ones being promulgated and then enacted regularly, launching a legal attack on any one of them is a time-consuming and expensive process, and it is one that requires legal acumen. Moreover, the first hurdle that a plaintiff has to jump over is, often enough, that of standing. The defendant, government, will try to throw a case out, if it can, on the ground that the plaintiff doesn’t have standing to bring action because the plaintiff cannot show injury or, even if plaintiff can ostensibly show injury, the argument may then be made that plaintiff cannot draw a nexus between a given statute and the alleged injury. Thus, the best way to deal with antigun laws is through the legislative process rather than through the legal process. What the public needs to do is preclude those people who seek to undermine the Second Amendment from securing elected office in the first place. If antigun laws are not drafted and enacted, then the problem posed simply doesn’t exist.

    5. It is interesting to note that, in the 1939 “Miller” case, the SCOTUS upheld Mr. Miller’s conviction for carrying a (then newly banned) “sawed off shotgun” on the basis of the fact that the 2nd Amendment SPECIFICALLY protected ONLY those firearms in general use by the military, or especially applicable to use by the military, which a “sawed off shotgun” was not. Thus, the SCOTUS has ALREADY ruled, way back in 1939, that it is unconstitutional to ban “assault weapons” since they are specifically those weapons used by the military. Thus, any law banning “assault weapons” is null and void at its inception. Hmmmnnnn…Now we just need someone with deep pockets, who is willing to get arrested (so he’ll have “standing”) and test this law out in the courts using this legal argument.

    6. The NRA has written off N.J. and California as unwinnable. Has been that way for a long time. Politicians swear an oath to protect and defend the Constitution , then as soon as they can try to change it. Before I vote for any elected official, i get their view on the 2nd Amendment. If they are against it, I will NOT vote for them. The only way we can change things is through the ballot box. If they want to stamp out my rights, imagine what they will do after we are disarmed and at their mercy.

    7. So why aren’t all of these laws being fought in our courts by the organizations asking us for our money to support them? Living in California I’ve seen very little detriment to criminals who care less about laws, but all kinds of detriment to law abiding citizens. These law makers care nothing about the citizens of the state(s), it’s all about the money and the propagation of their egocentric lifestyle(s). Anyone for a multi million persons march on a state capital?
      When you write to your representatives all you get is, rhetoric, no action. California is becoming ridiculous!
      BTW, Deviancy down is how all great nations have met their demise. First a sin/deviancy is look at with intolerance, then tolerance, then acceptance. Read your history, it’s everywhere.

    8. 5WarVeteran, by ‘false flag,’ I assume you are referring to any U.S. Government created or sponsored catastrophe, blamed on another group or foreign nation, that becomes the pretext for the implementation of a set of draconian laws in our own Country. I would have to research that but, off the cuff, I don’t believe such laws themselves would be illegal. Of course the actions of those Government players who created or sponsored a catastrophe in order to topple a free republic, can and should be tried for treason and crimes against the American people. And, as a result, the laws that came about due to the treason of those reprobates would be carefully scrutinized and subject to repeal.

    9. 2War Abn Vet, I wasn’t aware of the phrase, ‘defining deviancy down,’ and decided to look it up. It is an interesting concept. Apparently, the phrase was, as you correctly point out, coined by Senator Daniel Patrick Moynihan, and it refers to the need for a society to readjust to a lower expectancy of what that society deems to be appropriate conduct. So, for example, behavior that was once perceived as criminal or, if not criminal, at least deviant, and, hence, intolerable, becomes tolerable. But, the concept can be applied, generally, to any shift in attitude at the societal level. As for the forces that compel the change in attitude, that is often debatable, but subtle coercion may be one such force. Applying the concept to the matter of our Second Amendment right of the people to keep and bear arms, we see a slow but inexorable and insidious attempt by antigun proponents, through the vehicle of the mainstream media, to change the public’s perception toward gun ownership and possession — from one of broad tolerance, if not clear acceptance, to one of intolerance and even repugnance. This becomes glaringly obvious as children are slowly being conditioned to treat firearms as undesirable and, in fact, reprehensible. When, for example, a child is suspended from school for pointing his or her index finger at another child and saying, “bang,” we see a paradigm shift in attitude toward firearms. We see this as well with a reduction in the number of toy guns available to children and in the reluctance of parents to provide a child with a toy gun as a gift.

      Adults too are being conditioned — perhaps the term ‘brainwashed’ is not inappropriate — when adults are subject to countless news programs and documentaries about gun violence. This is not accident. There is a concerted effort to change the public’s attitude toward guns — to reduce the public’s tolerance toward gun ownership and possession. We see, as well, the shift away from placing blame for gun violence on the person — the criminal or lunatic — and a shift toward placing blame on the implement used by the person when committing an act of violence. Since the antigun movement cannot influence those among us who hold our Bill of Rights sacrosanct and inviolate — we are, after all, immune to media propaganda — the antigun movement is, instead, attempting to corral and quarantine those Americans who hold fast to the import and purport of the Bill of Rights and, especially, to the Second Amendment. We, who extend love for and see necessity in having the Second Amendment are the new “deviants.”

      Concerning the expression, ‘assault weapon,’ the expression is a legal fiction, concocted by antigun organizations and thrust into the public consciousness by the mainstream, corporate media. What comes to mind is the sentence from George Orwell’s dystopian novel, “Animal Farm.” “All animals are equal, but some animals are more equal than others.” Extrapolating from this, we have: “all guns are bad, but some guns are worse than others.” As an attorney, I am less concerned about corporate media use of the expression, ‘assault weapon,’ than the meaning of the phrase as it appears in State and Federal Statute. What we see, as you intimate, is that the domain grows ever wider. As more and more firearms are grouped into the domain, ‘assault weapon,’ which also means ‘banned weapon,’ the public will have lawful access to ever fewer types of firearms. Eventually, law-abiding citizens, generally, will be denied access to any firearm. A liberal U.S. Supreme Court will reverse the decisions in the Heller and McDonald cases, and the Second Amendment will have been, in effect, repealed. If, in the worst of all possible worlds, Hillary Clinton or Michael Bloomberg were to ascend to the Office of U.S. President, either one of them will begin to legislate away civilian gun ownership and possession through the liberal use of executive directives. None of this would bode well for the continued existence of the United States as a free republic.

    10. One question,

      Should any law predicated on False Flag events be considered null and void?

      Now resume your regularly scheduled mind programming…

      Oh and it is called oneupsmanship, a game played by children not adults who are supposed to be doing what is best for the country not undermining it. At least the Boy Scouts have adult leadership…

    11. The phrase “Defining deviancy down,” was coined by former Senator Daniel Patrick Moynihan. It certainly appears that the hoplophobes continue to “Define assault weapon down:. Originally it defined select fire weapons capable of fully automatic fire. Now it appears to mean anything leftist politicians want it to mean.

    12. Michael Plumb, the right codified in the Second Amendment is very real. The right codified in the Second Amendment is an assertion of its nature, a right preexistent in the people as a natural right. But, at one and the same time, the Second Amendment also establishes a constraint on government. Thus, the Second Amendment sets forth that the right — to keep and bear arms, preexistent in the people — shall not be infringed by government. The two go hand-in-hand: one, the assertion of the right embodied in the people, and, two, the assertion of the constraint on government — that government must forever forbear from infringing that right.

    13. “If right of the American people to keep and bear arms, as embodied in the Second Amendment…”

      This may seem pedantic, but I don’t intend it that way: gun rights advocates must stop describing the second amendment in terms of gun rights and start describing it in terms of what it truly is — an ongoing and comprehensive restriction on the power of government.

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