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http://www.californiaprogressreport.com/2006/12/background_and.html
December 14, 2006. 6 comments. Topic: Gun control
Setting the Record Straight on Gun Control in California
Irwin-Nowick-1.gif
By Irwin Nowick
Since I was asked to do so – and since I was mentioned in various responses to articles in the California Progress Report – I wanted to clarify several matters as it related to the repartee back between Dr. Cavala and others regarding the 1988 elections, as well as the circumstances surrounding the District of Coumbia litigation as well as AB 2728.
First, as a preliminary matter, as to what transpired in 1988 and 1989, Dr. Cavala’s rendition of events as they happened is correct. In fact, the NRA endorsed Chuck Quackenbush every time after 1988 – despite the fact that he was in reality the architect of the brand name approach in the original Roberti-Roos Law. There were similar endorsement practices in other races.
As the DC litigation (Parker v. District of Columbia) that Dr. Cavala mentions, that litigation is being financed by the CATO Institute – not the NRA. The NRA’s own suit (Seegars v. Ashcraft, 297 F.Supp.2d 201 (D.D.C. 2004) affirmed at 396 F.3d 1248 (D.C. Cir. 2005) with petition for rehearing En Banc cited at 413 F.3d 1 (D.C.Cir. 2005)) was dismissed on “standing grounds” by both the United States District Court for the District of Columbia, and the United States Court of Appeals for the District of Columbia Circuit on appeal. The United States Supreme Court denied review (certiorari) in January of this year. The way Seegars was litigated has caused a considerable amount of discord with CATO and others.
The CATO suit (and the same was true with the NRA suit) while seeking the recognition of an individual right to keep and bear arms – recognized that the framers of the Second Amendment (principally James Madison and Alexander Hamilton) views on firearms rights were nuanced. In terms of the specific relief sought in both Seegars and Parker, the plaintiffs want to acquire and possess handguns which are registered to them – in effect they want to create a regulated market in registered firearms that does not exist today in DC.
The District of Columbia’s criminal code bars them from registering and lawfully possessing pistols within the District of Columbia, allowing them to move handguns around their private property without a carry license, and allowing them to maintaining firearms in their homes free of mandates that they be unloaded and disassembled, or secured by a trigger lock while home.
As to the registration issue, DC Code prohibits a person from possessing a firearm in the District of Columbia unless it is validly registered. Pursuant to DC Code, pistols not already registered before September 24, 1976 may not now be registered. And DC Code prohibits carrying a pistol either openly or concealed on or about one’s person without a license within the District of Columbia – with specified exceptions. The place of business and residence exception that was in effect repealed in 1992, I believe.
As a result, it is impossible in the District to acquire and lawfully possess a new pistol—or indeed any pistol not registered there three decades ago. A fourth provision requires that registrants keep firearms unloaded and disassembled, or bound by a trigger lock or similar device, subject to exceptions for firearms kept at places of business or firearms that are being lawfully used for recreational purposes in the District.
There was also a provision in DC Code that in effect requires a carry license to carry a registered gun within one’s own home or place of business. The Parker plaintiffs are seeking very limited relief. They simply would like to lawfully possess registered pistols in the District, carry them on their own property without carry licenses, and to remove the trigger lock while at home. Given that my views are well known – having been written about in Capitol Weekly and other venues - I personally think their desires are quite legitimate and legally justified. The Plaintiffs are seeking a system somewhat comparable to what exists in California – albeit with registration requirements that may be more expansive than California now requires
As to the specific issue of the Firearms Division and Bill Lockyer, I have never been at any meeting or ever heard Bill Lockyer denigrate any of his personnel. As to the Firearms Division, it’s no secret that I advocated for its creation. In fact, Senate Majority Leader Gloria Romero (when she was in the Assembly) carried the legislation to create the division. Steve Peace and Don Perata coauthored that legislation. It was found that this could be done administratively and it was done by Attorney General Lockyer. I believe that overall the Division does a pretty good job.
One of the main constituent services I have done for legislators is assisting persons who come into possession of handguns or who have gun issues to get them legally situated as registered-legal owners of the same. The Division is very helpful in this process. And, through the website changes and user friendly on-line forms that Attorney General Lockyer instituted, this is done on a daily basis.
As to AB 2728, this legislation vindicates the position that Senator Perata and I and others has long held that the add-on process – created at the instigation of Chuck Quackenbush and Dan Lungren was counterproductive – to say the least. By way of background, because of the brand name process, persons would acquire firearms which were very minor-cosmetic changes to named guns and could therefore possess and unregistered defector “assault weapon”. To address this, process the 1991 Legislature enacted a law that authorized the Attorney General to petition a court to add guns to the assault weapon list. Thereafter, the person could register that gun as an assault weapon.
In 1999, the Legislature passed – after a multi year effort – SB 23 by Senator Perata which in effect replaced the brand name process with a generic characteristic of what was an assault weapon. The definitions came in part from federal law, Canada, and several other states. Because of the enactment of SB 23, Attorney General Lockyer correctly took the position that the public and law enforcement are best served by reference to the generic definition of assault weapons set forth in SB 23, rather than reliance upon a scheme of identifying assault weapons by name. Therefore, the Department would not update not update the list of “series” assault weapons or use the court process. In fact, the last “listing” has not occurred since SB 23 went into full effect – which was over 5 years ago.
Notwithstanding the reality of SB 23, a number of persons including apparently Mr. Wiese – wanted to add to the number of assault weapons in the state. They obtained – in response to an inquiry from Alison Merrilees – and her responding was her job – a letter indicating that so-called “lower receivers” for certain AR 15 rifles were legal to acquire through the DROS process (receivers are the housing mechanism for the action of a firearm) as these “lowers” are considered the gun – though non functioning and non firing. These “lowers” have no barrel, no stock, no trigger mechanism – etc.
Alison properly noted that any effort to build these guns up into real firearms carried a potential 8 year prison sentence for each gun. As Dr. Cavala noted in his posting as to prison capacity, there are no limits on consecutive sentencing today in this State.
In any event, these were “lowers” were DROS'd and while the Department of Justice generated substantial transaction fees off of these activities for background checks on de facto paper weights, it was not an ideal situation. I should add that this add on process would not be needed as to handguns or shotguns for a whole series of reasons.
In fact, the extent of the issue came to my attention when I went to a National Wild Turkey Federation Dinner (I am a member of that group and other like groups as well) and the college students who worked at the winery where the event was held were talking about this opportunity to have their very own “assault weapons”. Not only was I concerned about this, the NWTF members at the event where concerned about this as well.
In sum, these "lowers" were acquired on speculation: the expectation that the Department of Justice would be goaded into seeking a court declaration to make them assault weapons. The minute that declaration occurred, people who owned the lowers – estimated at anywhere from 10,000 to 40,000 - could then register them as assault weapons. At that point, the question then became could these legally registered “assault weapons” be made into real guns. It is my understanding that Mr. Wiese and others who own a large number of these lowers wanted to use the declaration-registration process to test whether these assault weapons could be made into functioning firearms.
After a lot of discussions – and the NRA was involved in this – though they did not “walk over” anyone, the Legislature passed and Governor Schwarzenegger signed into law AB 2728 by Johan Klehs. AB 2728, I should add that AB 2728 was supported in the State Senate by an overwhelming bi-partisan vote including Senators Maldonado, Margett, McClintock, and Poochigian.
AB 2728 prospectively repeals the add-on procedure as of 1/1/2007 which means that while guns previously added to the list through a judicial process remain there, the statutory process for doing so in the future will expire as of 1/1/2007. In addition, AB 2728 adopts another proposal championed by Senator Perata which generally makes the possession of an unregistered assault weapons and .50 BMG rifles in violation of the Penal Code a nuisance, allowing for its destruction. Prior to 2728 there was no explicit provision in law that allows law enforcement to dispose of seized unregistered assault weapons. Finally, 2728 contains provisions from federal law that in effect allow nuisance-injunction actions in lieu of criminal prosecutions to dispose of unregistered assault weapons and .50 BMG rifles. Several Court decisions have properly held it is possible to innocently possess an illegal item. That being the case, a mechanism has to exist to remove the item without criminal consequences to the possessor. AB 2728 does that.
Attorney General Lockyer has repeatedly stated that SB 23 is adequate and therefore he would not seek any more court declarations until AB 2728 goes into effect. AB 2728 has two effects: (i) the AG is prospectively barred from administratively banning guns but (ii) all these persons with "lowers" have "guns" which have to be transferred in accordance with the private party transaction rules of processing through a dealer but which are simply pieces of metal.
Violations of the transaction rules – and its easy to trace their transfer contrary to popular belief - can carry felony penalties and will in any result in the loss of their right to possess any gun for at least 10 years. Fortunately for these possessors, because of legislation sponsored by Attorney General Lockyer, persons who find themselves in these situations can dispose of their weapons directly to a law enforcement agency.
Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.
Comments
Jim December 14, 2006 a
December 14, 2006. 6 comments. Topic: Gun control
Setting the Record Straight on Gun Control in California
Irwin-Nowick-1.gif
By Irwin Nowick
Since I was asked to do so – and since I was mentioned in various responses to articles in the California Progress Report – I wanted to clarify several matters as it related to the repartee back between Dr. Cavala and others regarding the 1988 elections, as well as the circumstances surrounding the District of Coumbia litigation as well as AB 2728.
First, as a preliminary matter, as to what transpired in 1988 and 1989, Dr. Cavala’s rendition of events as they happened is correct. In fact, the NRA endorsed Chuck Quackenbush every time after 1988 – despite the fact that he was in reality the architect of the brand name approach in the original Roberti-Roos Law. There were similar endorsement practices in other races.
As the DC litigation (Parker v. District of Columbia) that Dr. Cavala mentions, that litigation is being financed by the CATO Institute – not the NRA. The NRA’s own suit (Seegars v. Ashcraft, 297 F.Supp.2d 201 (D.D.C. 2004) affirmed at 396 F.3d 1248 (D.C. Cir. 2005) with petition for rehearing En Banc cited at 413 F.3d 1 (D.C.Cir. 2005)) was dismissed on “standing grounds” by both the United States District Court for the District of Columbia, and the United States Court of Appeals for the District of Columbia Circuit on appeal. The United States Supreme Court denied review (certiorari) in January of this year. The way Seegars was litigated has caused a considerable amount of discord with CATO and others.
The CATO suit (and the same was true with the NRA suit) while seeking the recognition of an individual right to keep and bear arms – recognized that the framers of the Second Amendment (principally James Madison and Alexander Hamilton) views on firearms rights were nuanced. In terms of the specific relief sought in both Seegars and Parker, the plaintiffs want to acquire and possess handguns which are registered to them – in effect they want to create a regulated market in registered firearms that does not exist today in DC.
The District of Columbia’s criminal code bars them from registering and lawfully possessing pistols within the District of Columbia, allowing them to move handguns around their private property without a carry license, and allowing them to maintaining firearms in their homes free of mandates that they be unloaded and disassembled, or secured by a trigger lock while home.
As to the registration issue, DC Code prohibits a person from possessing a firearm in the District of Columbia unless it is validly registered. Pursuant to DC Code, pistols not already registered before September 24, 1976 may not now be registered. And DC Code prohibits carrying a pistol either openly or concealed on or about one’s person without a license within the District of Columbia – with specified exceptions. The place of business and residence exception that was in effect repealed in 1992, I believe.
As a result, it is impossible in the District to acquire and lawfully possess a new pistol—or indeed any pistol not registered there three decades ago. A fourth provision requires that registrants keep firearms unloaded and disassembled, or bound by a trigger lock or similar device, subject to exceptions for firearms kept at places of business or firearms that are being lawfully used for recreational purposes in the District.
There was also a provision in DC Code that in effect requires a carry license to carry a registered gun within one’s own home or place of business. The Parker plaintiffs are seeking very limited relief. They simply would like to lawfully possess registered pistols in the District, carry them on their own property without carry licenses, and to remove the trigger lock while at home. Given that my views are well known – having been written about in Capitol Weekly and other venues - I personally think their desires are quite legitimate and legally justified. The Plaintiffs are seeking a system somewhat comparable to what exists in California – albeit with registration requirements that may be more expansive than California now requires
As to the specific issue of the Firearms Division and Bill Lockyer, I have never been at any meeting or ever heard Bill Lockyer denigrate any of his personnel. As to the Firearms Division, it’s no secret that I advocated for its creation. In fact, Senate Majority Leader Gloria Romero (when she was in the Assembly) carried the legislation to create the division. Steve Peace and Don Perata coauthored that legislation. It was found that this could be done administratively and it was done by Attorney General Lockyer. I believe that overall the Division does a pretty good job.
One of the main constituent services I have done for legislators is assisting persons who come into possession of handguns or who have gun issues to get them legally situated as registered-legal owners of the same. The Division is very helpful in this process. And, through the website changes and user friendly on-line forms that Attorney General Lockyer instituted, this is done on a daily basis.
As to AB 2728, this legislation vindicates the position that Senator Perata and I and others has long held that the add-on process – created at the instigation of Chuck Quackenbush and Dan Lungren was counterproductive – to say the least. By way of background, because of the brand name process, persons would acquire firearms which were very minor-cosmetic changes to named guns and could therefore possess and unregistered defector “assault weapon”. To address this, process the 1991 Legislature enacted a law that authorized the Attorney General to petition a court to add guns to the assault weapon list. Thereafter, the person could register that gun as an assault weapon.
In 1999, the Legislature passed – after a multi year effort – SB 23 by Senator Perata which in effect replaced the brand name process with a generic characteristic of what was an assault weapon. The definitions came in part from federal law, Canada, and several other states. Because of the enactment of SB 23, Attorney General Lockyer correctly took the position that the public and law enforcement are best served by reference to the generic definition of assault weapons set forth in SB 23, rather than reliance upon a scheme of identifying assault weapons by name. Therefore, the Department would not update not update the list of “series” assault weapons or use the court process. In fact, the last “listing” has not occurred since SB 23 went into full effect – which was over 5 years ago.
Notwithstanding the reality of SB 23, a number of persons including apparently Mr. Wiese – wanted to add to the number of assault weapons in the state. They obtained – in response to an inquiry from Alison Merrilees – and her responding was her job – a letter indicating that so-called “lower receivers” for certain AR 15 rifles were legal to acquire through the DROS process (receivers are the housing mechanism for the action of a firearm) as these “lowers” are considered the gun – though non functioning and non firing. These “lowers” have no barrel, no stock, no trigger mechanism – etc.
Alison properly noted that any effort to build these guns up into real firearms carried a potential 8 year prison sentence for each gun. As Dr. Cavala noted in his posting as to prison capacity, there are no limits on consecutive sentencing today in this State.
In any event, these were “lowers” were DROS'd and while the Department of Justice generated substantial transaction fees off of these activities for background checks on de facto paper weights, it was not an ideal situation. I should add that this add on process would not be needed as to handguns or shotguns for a whole series of reasons.
In fact, the extent of the issue came to my attention when I went to a National Wild Turkey Federation Dinner (I am a member of that group and other like groups as well) and the college students who worked at the winery where the event was held were talking about this opportunity to have their very own “assault weapons”. Not only was I concerned about this, the NWTF members at the event where concerned about this as well.
In sum, these "lowers" were acquired on speculation: the expectation that the Department of Justice would be goaded into seeking a court declaration to make them assault weapons. The minute that declaration occurred, people who owned the lowers – estimated at anywhere from 10,000 to 40,000 - could then register them as assault weapons. At that point, the question then became could these legally registered “assault weapons” be made into real guns. It is my understanding that Mr. Wiese and others who own a large number of these lowers wanted to use the declaration-registration process to test whether these assault weapons could be made into functioning firearms.
After a lot of discussions – and the NRA was involved in this – though they did not “walk over” anyone, the Legislature passed and Governor Schwarzenegger signed into law AB 2728 by Johan Klehs. AB 2728, I should add that AB 2728 was supported in the State Senate by an overwhelming bi-partisan vote including Senators Maldonado, Margett, McClintock, and Poochigian.
AB 2728 prospectively repeals the add-on procedure as of 1/1/2007 which means that while guns previously added to the list through a judicial process remain there, the statutory process for doing so in the future will expire as of 1/1/2007. In addition, AB 2728 adopts another proposal championed by Senator Perata which generally makes the possession of an unregistered assault weapons and .50 BMG rifles in violation of the Penal Code a nuisance, allowing for its destruction. Prior to 2728 there was no explicit provision in law that allows law enforcement to dispose of seized unregistered assault weapons. Finally, 2728 contains provisions from federal law that in effect allow nuisance-injunction actions in lieu of criminal prosecutions to dispose of unregistered assault weapons and .50 BMG rifles. Several Court decisions have properly held it is possible to innocently possess an illegal item. That being the case, a mechanism has to exist to remove the item without criminal consequences to the possessor. AB 2728 does that.
Attorney General Lockyer has repeatedly stated that SB 23 is adequate and therefore he would not seek any more court declarations until AB 2728 goes into effect. AB 2728 has two effects: (i) the AG is prospectively barred from administratively banning guns but (ii) all these persons with "lowers" have "guns" which have to be transferred in accordance with the private party transaction rules of processing through a dealer but which are simply pieces of metal.
Violations of the transaction rules – and its easy to trace their transfer contrary to popular belief - can carry felony penalties and will in any result in the loss of their right to possess any gun for at least 10 years. Fortunately for these possessors, because of legislation sponsored by Attorney General Lockyer, persons who find themselves in these situations can dispose of their weapons directly to a law enforcement agency.
Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.
Comments
Jim December 14, 2006 a
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although I'm not as weirded up by it as he is.) He doesn't have the street-smarts God gave a goat but is possessed of an incredibly complicated mind.