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DOJ and the "Assault Weapons" Definition

Wednesday, July 18, 2018 07:30 | Anonymous


Originally, I was going to write about President Trump’s nominee, Judge Brett Kavanaugh, to fill the vacated Supreme Court seat of Justice Kennedy.


That will have to wait until next week.


Today, we get to talk about the California DOJ and “assault weapons”… again.  Specifically, what constitutes an “assault weapon,” and how does that definition relate to law enforcement activities?


But, before we get into that, we need to talk a little bit about legislative philosophy and the development of law.


As I have written before, law is, by definition, a freedom-limiting event.  That should not necessarily be seen in a pejorative context.  For people to have the greatest potential for maximizing individual freedom, the actions of others need to be regulated to some extent.  


Think of motor vehicle laws.


Many of us would love to drive our vehicles with complete disregard for traffic laws.  Doing this, however, would increase the potential of everyone being killed while on the road.  To minimize the potential of disaster while driving, we regulate everyone’s behavior equally to not only create predictability while on the road, but also to minimize the risk of operating a vehicle.  


While the benefit of safety on the road is clearly maximized by having enforceable laws, make no mistake… “freedom”… the ability to do what you want, when you want with your vehicle, is compromised.


Our Framers understood this and realized that the development of law… any law… was a necessary impediment to individual freedom.  As such, they made it difficult to pass laws.  They also relegated the passage of laws to the political crucible of the legislature.  


If legislators crafted a law that would limit freedom “too much,” they would still need political allies to support that law, allies that would have to stand for reelection themselves.  If a proposed law is too onerous to freedom, then, arguably, those allies would seek restrictions, exemptions, or redrafting to minimize the law’s impact on freedom, while still striking a balance between public policy and the individual freedom which is effected. Ideally, that balance is struck with individual freedom having the most weight.


In California, we often have two sets of laws, legislation that comes from the Legislature (that crucible of law-making) and administrative regulations that allow executive agencies to develop polices for the purposes of execution of the laws passed by the Legislature.  


We run into a problem, though, when the Legislature passes laws (only to the extent that it has the political will to pass) and the Administrative Agency promulgates rules that exceed the law that the Legislature can pass.


Such is the case with the California DOJ.


(If you have arrived here from our newsletter, continue reading here…)


DOJ was handed SB 880, which created not only the “assault weapon” reclassification of a bullet button, but also the registration process for registering a previously-owned weapon as an “assault weapon.”

It attempted to file its “assault weapon” definition (actionable rules) with the State Office of Administrative Law and immediately was met with resistance.  Specifically, DOJ asked that the rules be subject to what is called “file and print.”  


This essentially means: “nothing to see here… move along.”  


Typically, when a rule is proposed, the public needs to be given an ample opportunity to participate in the rule-making process and be able to make public comments.  “File and Print” is reserved for benign administrative stuff that does not meet the requirement of public comment.


Here, DOJ attempted to fundamentally alter what is considered an “assault weapon”… and arguably constructed a brand new form of weapon called a “bullet button assault weapon.” 


This clearly went beyond what the Legislature was capable of developing under their political constraints, yet the unelected bureaucrats at DOJ decided to carry the water of the Legislature and do it for them.


The NRA, CRPA, Firearms Policy Coalition, as well as a host of other civil rights organizations, went operational.


One of the big issues was that DOJ attempted to clarify that the regulations were both for purposes of registration and enforcement.  


That enforcement provision clearly went beyond the scope of the legislation, as well as fell outside the parameters of “file and print.”


Last week, DOJ pulled its regs from the Office of Administrative Law. 


Essentially it is preparing for a “do over.”


This does not mean that SB 880 is no longer the law.  It is still in force, and since the registration period for registering rifles as assault weapons has passed, I am not entirely sure I know the bigger picture for the vast majority of gun owners in California.


Clearly, DOJ has attempted to strong arm the gun owning public (again) in California, and it has been rebuffed.  It has also established defenses for those who potentially run afoul of the registration law.


This is just one more “issue” with DOJ, and it is, sadly, a fight that is not over.


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