HR822 Legal Question
Can you take regular capacity magazines into states with magazine bans? I’m guessing no. Seems you’d have to comply with local ordinances regarding, err, ordnance. And good luck knowing all the laws in places like MA, NJ, and Cali.
Another legal question: I wonder if the Face Stabber (assuming it’s pinned) is illegal in states with assault weapons bans? It’s not a flash hider.
December 1st, 2011 at 10:43 am
Right now, even a non-resident with a valid MA non-resident permit that possesses a post-ban > 10 round magazine would be in violation of MA law regarding “assault weapons”. I don’t expect that to change as a result of HR822; I expect that it would take a lawsuit challenging the MA AWB ban instead.
As for the face-stabber, as long as it’s a muzzle brake and not a flash hider, it would be perfectly legal.
December 1st, 2011 at 10:45 am
+1 to Jay. I wouldn’t be surprised to see somebody in court about such a muzzle device.
December 1st, 2011 at 11:00 am
The way 822 is written I would say that a strong argument for federal preemption could be made.
As a law talking guy, it would be optimal to have a explicit preemption clause, preferrably in all caps.
December 1st, 2011 at 11:14 am
FOPA is supposed to prevent that while Traveling THROUGH a State, but, as of today, I’d be careful NOT to be pulled over by the PoPo in a VolksRepublik. Which is why I will NOT be speeding when I drive through Maryland tomorrow on my way to the Blogshoot in West Buy God.
December 1st, 2011 at 12:10 pm
You know…the more I think about it, HR822 is bad legislation, and is going to create more felons. When I drive from TN to NY, if I get pulled over, I WON’T get a ticket for drivng a vehicle without a current safety inspection sticker, even though NY law is clear that any vehicles operated by NY residents on NY roads must have a current inspection. Under the thought process of HR822, if applied to DL’s, I would need to have my car in compliance with NY law prior to crossing into NY state.
I can see NY tossing a hissy if they were forced to honor my carry license the same way as my DL…if its legal in my state, then it must be honored in every other state. This would put the onus on the PoPo to know what is and isn’t mandated in my state…just as they know that a safety inspection is not required in TN, so I’m not in violation there, they would know that hi-cap mags are legal in TN and, as. TN resident, that I’m also not in violation of my state law, and therefore can’t be hassled.
This may be sacriledge to say out loud, but they should scrap HR822 and re-draft it PROPERLY, making it abundantly clear that the law is inended to force states to recognize the 2A, so that states with onerous gun laws are forced to ease up to be equal to the most free state in the Union regarding gun laws.
December 1st, 2011 at 12:36 pm
Ordinance / ordnance. Well played, and well spelled.
December 1st, 2011 at 12:46 pm
re: Face stabber. As best I can tell, that’d be considered a “flash hider” by the BATFEIEIO due to the opening in the end of it being considerably larger than the bore diameter.
December 1st, 2011 at 1:08 pm
In Kalifornia:
“It is unlawful for any person to manufacture, cause to be manufactured, import into the state, keep for sale, or offer or expose for sale, or give or lend, any large-capacity magazine. (Penal Code § 12020(a)(2).)”
So the answer is no. you may only bring your limited capacity magazines into the state. If you owned a high (or standard) capacity mag here before the ban, you can keep it, but you have to be able to prove you owned it before the ban.
December 1st, 2011 at 2:09 pm
David’s correct about CA. While it is not illegal to possess, good luck explaining how you have a standard capacity magazine on your person while visiting from out-of-state. The only exception is if you owned the magazine prior to the ban & had previously lived in CA while owning it. Given the “expert” knowledge shown by local LEO & DA’s, I wouldn’t risk it.
December 1st, 2011 at 4:23 pm
Yeah, it’s not perfect so redraft it (and risk it not passing at all).
=/
Or, pass it, then clarify it with further legislation or through the courts. You know, incrementally, like how we got Constitutional carry in AZ, AK and WY and will be getting it in every other state (VT got it via a century old Supreme court ruling on their state constitution, they are not a valid contrary example).
In any event, you still have to abide by the host states restrictions on where you can carry, whether you can drink, etc. So it’s a little “cute” to claim that, during that research, having to scroll down the DPS page a little to check on mag capacity limits is some sort of horrible additional burden.
December 1st, 2011 at 8:02 pm
Actually, David is partially right. You’re not legally required to prove that you owned it prior to January 1, 2000 – the DA is required to prove that you didn’t.
Minor distinction, but a major difference. This makes no difference to travelers (it’s pretty obvious that if you are just traveling through, and have never lived here, you didn’t own them prior to the ban), but can be huge boon to California residents.
Also if anyone were curious, the statute of limitations for California Penal Code § 12020(a) is three years.
Here’s all the relevant information: http://wiki.calgunsfoundation.org/index.php/Large-capacity_magazine_restrictions
December 1st, 2011 at 8:13 pm
@Matt – I wasn’t trying to say that I don’t want to do the due diligence, and know what I’m supposed to abide by when going to other states…I do that now, to see where my carry permit is honored, and what ordinance I need to abide by when visiting another state.
My point was, what if the same thought process was applied to DL’s? NY says that a car must have a safety inspection. NJ may say that spare tires cannot be of the *donut* type, and can only be full size tires on regular rims. PA may say that because of highway fatalities from folks changing tires and being hit while on the shoulder, one is in violation of the law if they aren’t carrying at least 40 minutes worth of burn time in a set of flares, and so on…
How many tickets would be written yearly, do you think? And there wasn’t an *incremental* clarification of the driving laws when the auto first became ubiquitous. Why should it be a vague law that willingly allows for the crapshoot that is the court system, where victory and common sense is never guaranteed, when we can draft a law that is clear, concise, leaves nothing to chance and ensures that the courts will NOT get involved and try to twist/corrupt the intent of said law?
December 1st, 2011 at 10:13 pm
What about Mass and Cali legal guns? If I visit Cali carrying my gun that’s not on their approved list, am I in violation of local law?
December 1st, 2011 at 11:52 pm
Heres a poser, what about the 10 round mags for my .458 SOCOM caliber’d AR? when loaded with the .458 SOCOMs, its a 10 rounder but for a 223/5.56 caliber’d AR, its a 30 rounder? Might all be moot, for all I know the same states have banned .458 as well.
December 2nd, 2011 at 12:45 am
countertop.
You might be okay if you visit Mass at least.
Going by this story of Weer’d’s
http://www.weerdworld.com/2011/the-story-of-eleanor/
I dunno though.
December 2nd, 2011 at 3:08 am
Dragon,
I regret and apologize to you for my tone. You don’t deserve snark from me. I write that mea culpa too much in regard posts responded to in the am, time for me to fix that. Anyway…
The difference I think, however small yet meaningful, is that those car laws apply only to cars registered in those states or to those state’s residents, which is easily determined by looking at the car registration and/or drivers license and backed up by other state laws on residency requirements. By design they -can’t- apply (or be applied) to visitors.
Thinking about it, if the particular law is written to reference “guns carried by residents”, as opposed to simply “guns carried”, you probably have a legal point to be made.
In this case though I think the mag regs are more akin to generally applicable car stuff like “must have working tail lights”.
December 2nd, 2011 at 8:48 pm
David at #8 re: Kali mag law: I won’t be making a test case out of that law, but I wonder whether “import” means specifically to bring in with intent of keeping/leaving there. That’s always how customs seems to handle it when entering/leaving Canada, for example — else we’d be paying duty on everything in our possession each time when crossing a border. I’m not “importing” my shoes, for example, they will be coming back with me… so they aren’t considered as being “imported” at the time of entry, for purposes of applicable duties/taxes.
The other thing about that law, is that it doesn’t mention renting. I’ve always wondered if that was a usable loophole…