While attention has been focused on the United State Congress while it grapples with federal law pertaining to firearms, most laws concerning control of firearms stem from State and local authorities. Due to the Second Amendment of the United States Constitution protecting the right to bear arms (however it is interpreted by Congress) outright bans on all firearms cannot be passed by either the Federal government or any State or local government. Nevertheless, they can pass what are considered “reasonable” restrictions on the types of guns that can be in the possession of persons in various places.
Thus, fully automatic (machine) guns and explosive ammunition (dum-dum bullets) are routinely banned and concealed weapons are often prohibited in urban areas unless the carrier has obtained a license. This is not true for all states and in some locales concealed weapons are not only allowed but encouraged on the theory that criminals will hesitate long and hard before attacking civilians who may have weapons concealed on their persons.
This article shall briefly discuss the laws that exist concerning firearms and the penalties possible if the laws are violated in California. Local laws should also be determined by the reader and our article on Criminal Law also reviewed.
POSSESSON AND MOVEMENT OF FIREARMS
All states allow person to have rifles, shotguns and other similar weapons which are not concealed weapons and to move about with those weapons freely as long as they are not loaded while carried in some locales. In some states, the “long guns” may even be loaded while transported.
Many states impose restrictions on the right to carry certain firearms due to the inherent danger of the weapons, coupled with the high probability of criminals using the firearms against the victims. However, some state laws provide that licenses (permits) shall allow law-abiding citizens to carry concealed firearms to protect themselves when traveling. Some States have “shall issue” laws which provide permits to qualified individuals with little discretion.
A number of studies indicate that in states which adopted “shall issue” laws, the rate of injury and murder dropped to a considerable extent. Some studies have shown that laws permitting concealed weapons have resulted in a reduction of murder and other violent crime by about 10 percent. For instance, Vermont, where a citizen has the right to carry a firearm without permits, has a very low rate of violent crime.
Constitutionally, the United States Constitution second and fourteenth amendments provide for the right to keep and carry arms. Right-to-carry laws require law enforcement agencies to issue permits to all qualified applicants. Qualifications often include criteria such as age, a clean criminal record, and proficiency in handling firearms, which is ensured through successful completion of a firearm safety course.
In 1986, only nine states had right-to-carry laws, whereas more recently most states have right-to-carry laws permitting citizens to carry firearms to a limited extent. Right to carry firearms is generally granted after thorough scrutiny of the person’s criminal record and, physical and mental competency. Carrying firearms is normally prohibited in certain locations including buildings owned or leased by the federal, state or local government, educational institutions and financial organizations. Law enforcement officials are also permitted to use firearms in the course of official duty.
Some local jurisdictions, such as New York City, are extremely restrictive in granting such permits as opposed to locales in Texas where such permits are routinely granted.
Federal law does provide some protection for gun owners who seek to transport their firearms over state lines. However, gun owners shall follow the guidelines prescribed by law. Federal Law discusses Interstate transportation of firearms in 18 USCS § 926A.
According to § 926A, any person who is not otherwise prohibited by 18 USCS §§ 921 from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he/she may lawfully possess it. Such person can carry such firearm to any other place where s/he may lawfully possess and carry such firearm.
However, during such transportation the firearm shall be unloaded, and the firearm or any ammunition being transported not readily accessible or directly accessible from the passenger compartment of such transporting vehicle. In the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
CALIFORNIA LAW ON CARRYING CONCEALED FIREARMS
Absent the exceptions described below, carrying concealed firearm in California is a misdemeanor or felony offense. Cal Pen Code § 12025. A person is guilty of carrying a concealed firearm if s/he carries or causes to be carried concealed upon his or her person or within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. Firearms carried openly in belt holsters are not concealed within the meaning of this section.
”Lawful possession of the firearm” means that “the person who has possession or custody of the firearm either lawfully owns the firearm or has the permission of the lawful owner or a person who otherwise has apparent authority to possess or have custody of the firearm.” Cal Pen Code § 12025. However, a person who takes a firearm without the permission of the lawful owner or custodian of the firearm does not have lawful possession of the firearm. Note, however, that violation of this provision is justifiable when a person who possesses a firearm reasonably believes that he or she is in grave danger. Cal Pen Code § 12025.5. This section may not apply when the circumstances involve a mutual restraining order issued pursuant to Division 10 of the Family Code absent a factual finding of a specific threat to the person’s life or safety.
California law permits people to carry firearms either openly or concealed without licenseat place of residence, business, or lawfully possessed private property. Cal Pen Code § 12026. As such, no permit is required for any United States citizen or legal resident over the age of 18 years who resides or is temporarily within the state of California, and who is not a convicted felon or other convict who carries, either openly or concealed, anywhere within the citizen’s or legal resident’s place of residence, place of business, or on private property any pistol, revolver, or other firearm capable of being concealed upon the person.
This exception applies only to carrying firearms in one’s private property and a person is guilty of the crime of carrying a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. Cal Pen Code § 12031
As for permits for concealed weapons, Police Chiefs and County Sheriffs are the issuing authority for license to carry firearms. A license to carry concealed firearm will be issued upon proof of good moral character and good cause. The applicant must be a resident of the county or city to which they are applying or the applicant’s place of employment is within the city or county. The applicant must also complete a course of training (16-24 hours) prior to applying for a permit.
As part of the right to carry firearms on the basis of reciprocity and recognition, a permit issued by the state of California is recognized by Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington and West Virginia. California recognizes permits issued by Alabama, Alaska, Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and West Virginia.
PURCHASE OF FIREARMS
Gun law in the United States is defined by a number of state and federal statutes. In almost all the states of the United States, a manufacturer, seller or purchaser of firearms is required to be licensed under the federal gun control act of 1968 to be a lawful seller. The law relating to firearms in the United States varies from state to state and is independent of the existing federal firearms laws. Sometimes, the state law regulating firearms are broader and sometimes more limited in scope than the federal law.
Almost all the state constitutions recognize that, a person has the right to keep and bear arms for the defense of self, family, home, and state, and for lawful hunting and recreational use. However, a person who intends to purchase a firearm often is required to undergo a criminal history background check. Apart from this, generally, firearm dealers are required to keep a record on the retail sale, rental, or exchange of firearms. The record shall include the name of the person to whom firearm is transferred, his or her age, occupation, and residence, and the make, caliber, finish and serial number of the firearm, and the date of the transfer and name of employee making the transfer.
The records are often poorly maintained by the various state governments and efforts are being made to create a nationwide data base. Whether this succeeds or additional records are required is a matter before Congress on a regular basis.
The state laws specify that firearm license-holders are subject to the firearm laws of the state they are in, not the state in which the permit was issued. There also exists the concept of reciprocity between states licenses, such as concealed carry permits. These are recognized on a state-by-state basis. For example, Arizona recognizes a Nevada permit, but Nevada does not recognize an Arizona permit. Some states do not recognize out of state permits to carry a firearm at all. It is therefore important to understand the laws of each state when purchasing and carrying a firearm.
The State of California does not require a permit to purchase rifles, shotguns and handguns. All purchase of guns should be done from a California licensed gun dealer. When purchasing a gun, the purchaser should make an application to the licensed dealer. The application should contain a brief description of the purchaser and the purchaser’s right thumb impression. The application should also present a valid California identification card or driver’s license. If purchasing a handgun, additional proof of California residence is often required.
On receiving the application the dealer will send the copy of application to the California Department of Justice and the local police chief or sheriff. The Department of Justice will conduct a background check of the purchaser. A fee of $25 is charged for the background check. If the purchaser is found eligible to purchase the firearm, s/he can take possession of the firearm after a 10 day waiting period. However, if the purchaser does not take possession within 30 days, s/he will have to repeat the purchase process once again, along with the fees.
The purchaser should be 18 years to buy a rifle or shotgun, and 21 years in age to buy a handgun. The laws governing firearms are stated under California Penal Code Sections 12071 et seq.
The main government office that deal with issues relating to firearms is:
California Attorney General
Attn: Department of Justice
P.O. Box 944255
Sacramento, California 94244-2550
Phone: (916) 445-9555
SALE OF FIREARMS
As with the purchase of firearms, the law relating to sale of firearms in the United States varies from state to state and is independent of the existing federal firearms laws. Sometimes, the state law regulating firearms are broader and sometimes more limited in scope than the federal law. Some states have also created the assault weapon bans. These state level bans vary significantly in their form, content, and level of restriction.
§ 12082 of the California Penal Code details the procedure for completing sale, loan, or transfer through dealer; adoption of regulations; and violations by dealer. Cal Pen Code § 12082
As per § 12082, a person shall complete any sale, loan, or transfer of a firearm only through a person licensed pursuant to Section 12071. The seller of the firearm shall deliver the firearm to the dealer who shall retain possession of that firearm. The dealer shall then deliver the firearm to the purchaser if it is not prohibited, in accordance with subdivision (c) of Section 12072. Cal Pen Code § 12082 (a)
In case the dealer cannot legally deliver the firearm to the purchaser, the dealer shall return the firearm to the transferor or seller or the person loaning the firearm immediately. However, in cases where such return of the firearm to the seller or transferor or the person loaning the firearm will constitute a violation of subdivision (a) of Section 12072, the dealer shall not return the firearm.
If the dealer cannot legally return the firearm to the transferor or seller or the person loaning the firearm, then the dealer shall forthwith deliver the firearm to the sheriff of the county or the chief of police or other head of a municipal police department of any city or city and county who shall then dispose of the firearm.
The purchaser or transferee or person being loaned the firearm may be required by the dealer to pay a fee not to exceed ten dollars ($10) per firearm. However, no other fee may be charged by the dealer for a sale, loan, or transfer of a firearm conducted pursuant to this section. The dealer may however charge a smaller fee if he/she so desires. The dealer may not charge any additional fees.
The Attorney General shall adopt regulations under this section to do all of the following:
(1) Allow the seller or transferor or the person loaning the firearm, and the purchaser or transferee or the person being loaned the firearm, to complete a sale, loan, or transfer through a dealer, and to allow those persons and the dealer to comply with the requirements of this section and other relevant sections and to preserve the confidentiality of those records. Cal Pen Code § 12082 (b) (1)
(2) Where a personal handgun importer is selling or transferring a pistol or revolver, to allow a personal handgun importer’s ownership of the pistol, revolver, or other firearm capable of being concealed upon the person being sold or transferred to be recorded in a manner that if the firearm is returned to that personal handgun importer because the sale or transfer cannot be completed, the Department of Justice will have sufficient information about that personal handgun importer so that a record of his or her ownership can be maintained in the registry. Cal Pen Code § 12082 (b) (2)
(3) Ensure that the register or record of electronic transfer shall state the name and address of the seller or transferor of the firearm or the person loaning the firearm and whether or not the person is a personal handgun importer in addition to any other information required.[v] Cal Pen Code § 12082 (b) (3)
A dealer who does not sell, transfer, or keep an inventory of handguns is not required to process private party transfers of handguns. Cal Pen Code § 12082 (c).
PENALTIES FOR VIOLATING THE LAW
In addition to federal gun laws, most states and some local jurisdictions have additionally imposed their own firearms restrictions. Gun laws of states exhibit marked diversity, ranging fromno statutory mention, to significant provisions that are more restrictive than those of the Federal Gun Control Act, includingthe absence of any mechanism for terminating the prohibition.
Under California state law, anyone who has, buys, or tries to buy a gun while under a protective order is guilty of a public offense and can be punished by a fine of up to $1,000, jail/ prison time for up to 1 year, or both. The abuser might also be violating federal firearm laws, which carries separate penalties. At the time of this writing, the Federal law is likely to be altered so be sure to obtain accurate and up to date information to be fully informed.
Ownership and sale of firearms, and what are reasonable restrictions on such actions, is a matter hotly debated in the United States and a subject likely to raise intense emotions. Certain facts are important to note. First, most crimes are committed by weapons that are illegally owned or obtained. Additional licensing requirements are unlikely to drastically effect the persons using these weapons. Secondly, almost half of the persons who die from firearms are suicides. Whether more restricted access to firearms would alter the ease of suicide is unclear. Lastly, it is universally illegal to hunt with assault rifles that have not been altered to eliminate automatic firing, so their only logical legal purpose is to defend the home from third parties or for collectors.
The number of homicides from automatic and semiautomatic weapons is a small percentage of the actual homicides with firearms. Almost all such homicides are with handguns and almost all those handguns illegally obtained.
As for accidents, the key is trigger locks and safeguarding the weapons, not necessarily outright bans. Requiring such safeguards always makes good sense.
That said, the debate is likely to continue with contending forces engaging in discussions that are based more on ideology or emotion than clear analysis. For the individual wishing to own or purchase a firearm, it is vital to keep up to date on the law, learn its safe usage, and avoid concealing or transporting same without up to date review of the applicable statutes.