California stands out from most other states because its constitution does not contain an article protecting the right to bear arms, like the second amendment of the federal constitution. This has enabled California’s legislature to pass some of the toughest gun restrictions in the nation, and the only way to challenge them is by questioning their constitutionality in federal court. Indeed, many of California’s gun laws are and have been the subject of important federal, and even Supreme Court cases.
This all means that it can be difficult for California gun owners to remain on the right side of the law. And that’s where McElfresh Law comes in. We’ve successfully defended the cases of many clients who faced charges under California’s strict—and often complicated—gun laws. Beyond the regulations governing gun registration and open and concealed carry, California’s statutes provide other important restrictions, which are explained below.
California Has a Ban on Automatic and Short Barreled Weapons
California Penal Code sections 12001.5, 12020, and 12220 prohibit the possession, ownership, transfer, or sale of automatic firearms and short-barreled rifles. Under certain circumstances, it’s possible to petition the Department of Justice (DOJ) to obtain a “dangerous weapon permit,” but such requests are rarely granted.
The enforcement of the dangerous weapon bans varies from county to county. In urban areas, the authorities generally enforce the ban absolutely. But in rural areas, some sheriffs have refused to enforce the ban, and local prosecutors have been willing to prosecute the owners of dangerous weapons only when there was some evidence of malicious intent. In any case, the California highway Patrol enforces the ban strictly and uniformly across the state.
Understanding the California Ban on Assault Weapons
Sections 12280 and 12285 of the California Civil Code prohibits the possession, ownership, transfer, or sale of what the DOJ considers to be “assault weapons.” The DOJ roster of prohibited assault weapons includes military look-alike firearms and .50 caliber BMG rifles.
There are, however, some loopholes. It’s legal to possess a DOJ roster firearm if it was registered with the state prior to January 2005. Further, you can posses any military look-alike firearm that has not yet been listed on the OJ roster. These weapons are known as “off-list lowers,” a reference to the lower receiver of the forearm not yet being on the list of prohibited weapons.
In addition to the weapons that are prohibited by name in the DOJ roster, California Penal Code section 12276.1 provides a list of weapon types and features that are illegal. The list includes:
- Semiautomatic, centerfire rifles with a detachable magazine —Which have a pistol grip protruding conspicuously beneath the weapon’s action, a thumbhole stock, a folding or telescopic stock, a grenade or flare launcher, a forward pistol grip
- Semiautomatic pistols accepting a detachable magazine — With a threaded barrel, a flash suppressor, a forward or second handgrip, a shroud that allows the shooter to fire the weapon without burning his or her hand, a detachable a magazine that attaches anywhere besides the pistol grip
- Semiautomatic, centerfire rifles with fixed magazine accepting more than 10 rounds
- Semiautomatic, centerfire rifles shorter than 30 inches (762 mm)
- Semiautomatic pistols with fixed magazines with a capacity of more than 10 rounds
- Semiautomatic shotguns — With both a folding or telescopic stock and a pistol grip, thumbhole stock, or vertical handgrip; or the ability to accept a detachable magazine
- Shotguns with revolving cylinders
Additionally, it is illegal in California under Penal Code section 32310 to import, sell, trade, give or lend a magazine with a capacity greater than 10 rounds, with the exception of tubular magazines for lever-action rifles and .22 caliber rifles. The possession of magazines that hold more than 10 rounds is legal, however.
The Exceptions to These Rules Are Rare
It’s possible to get permit to acquire, transport, or possess a banned weapon such as an assault rifle or sawed-off shotgun, but the DOJ will only approve applications in narrow circumstances. Some of the situations in which a person might obtain a permit to own a restricted weapon include:
- The applicant owned the banned firearm before 1989, and registered it with the DOJ before the deadline set by the weapons ban
- The applicant is a non-resident, active duty member of the armed services permanently assigned to a military installation in California
- The applicant is a California police officer
- The weapon in question is used in Olympic or International sporting events
- The weapon is being imported for use by a federal, state, or local government agency
- The weapon is intended for use in the film industry
Transportation and Storage of Firearms
California law also applies to the transportation and storage of firearms. Many well-meaning citizens get charged under these regulations—especially those that apply to transporting a weapon in a vehicle.
When you’re in a car, your handgun must be unloaded and locked in a place where you can’t access it, like the trunk or a fully enclosed contained. The glove box is not a legal place to keep your gun, even if it locks. Long guns, such as rifles or shotguns, need to be unloaded but don’t have to be locked away unless they’re assault weapons.
In gun-free school zones, which extend 1,000 feet from any school that teaches between kindergarten and the 12th grade, handguns and long guns alike must be kept in locked containers—whether you’re in a car or not. It’s also a crime to leave a loaded firearm within any premises where a child is likely to gain access to the firearm, and a child takes the firearm to a public place or a school and causes injuries.
Defending Your Gun Charges
California law enumerates many prohibited acts related to firearms, the most common of which have been explained above. The restrictions that California gun owners must obey are so complex and numerous that many well-intentioned people end up getting charged. The problem with many of these gun crimes is that the prosecutor doesn’t need to show that you had criminal intent, which is required for most crimes.
If you hire a skilled San Diego firearms lawyer, he or she may be able to defend against your gun charges by:
- Challenging the legality of the home search or traffic stop that led to the discovery of your weapon
- Showing that the prosecutor’s evidence does not prove your guilt beyond a reasonable doubt
- Negotiating a guilty plea for a lesser charge
- Advocating for a lenient sentence based on mitigating factors that may apply to your case
If you’re facing charges for violating California’s gun laws, McElfresh Law can help. Our goal is to give all of our clients the best chances possible as they confront the criminal justice system. To learn more about how we can help, call us today and we’ll give you a free and confidential consultation of your case a (858) 756-7107.