Schwartzenegger signing statement

The Calguns Foundation will be challenging AB962 in Federal court. We've known of this issue for some time but did not want the legislation 'fixed'. The challenge is *not* RKBA based, and the Supreme Court case upon which our challenge will be based was (1) unanimous, (2) involved a closely parallel shipping situation involving a similarly 'ugly' product, cigarretts.

The regulation of internet delivery of ammunition as drafted in AB962 is preeempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAAA '94) as it regulates the routes & services of common carriers.

AB962 creates a misdemeanor in proposed Penal Code §12318 for not following the appropriate steps for “delivery . . . of handgun ammunition”. The bill goes on to state that deliveries may “only occur in a face-to-face transaction with the deliverer . . . being provided bona fide evidence of identity from the purchaser or other transferee.” However, the bill exempts law enforcement agencies, sworn police officers, ammunition manufacturer/importers, “handgun ammunition vendors” as defined in the statute, and certain firearms collectors. As such, common carriers will now have to make modifications to their rates and services in an attempt to ascertain whether delivering a package marked ORM-D to any given address is allowed, or is punishable as a crime.

This requirement on a common carrier’s service is particularly difficult for carriers where a retail establishment meets the definition of a “handgun ammunition vendor” under the act, but is not otherwise a Federal Firearms Licensee. These retailers are exempted from the non-delivery requirement but there is no documentation proving that such a recipient is exempt. Many “big box” retailers in California sell ammunition but do not sell firearms.

Even if an alternate narrower statutory construction were to be followed, on the face of the proposed law, common carriers would have to attempt to obtain evidence of identity to comply with proposed Penal Code §12318(a), which is clearly a state law that has a substantial impact on a carrier’s service.

Federal preemption of the routes, rates, or services of common motor carriers is found in 49 USC §14501(c)(1), and additional Federal preemption for common carriers was enacted in FAAAA '94 and was codified in 49 USC §41713.

The US Supreme Court has unanimously ruled that laws which regulate delivery by "common carriers" are preempted.

In 2008, the Supreme Court ruled 9-0 that a Maine statute that placed limitations on the delivery of cigarettes was preempted by the FAAAA. That statute is very similar to the restrictions on delivery found in AB962 .

In Rowe v. New Hampshire Motor Transport Association (128 S. Ct. 989, 2008) the Court found that a requirement for shippers to choose a special shipment method and that a carrier would be deemed to have knowledge that shipment had prohibited tobacco products in it, were both preempted by Federal Law. Maine attempted to defend the regulation by claiming that there was a public health exception to the FAAAA.

We have already done initial planning regarding plaintiffs and counsel for this case. And we do have time - as the law does not take effect until February 2011.

Additionally, the NRA has announced it's working on legislation to repeal the provisions of AB962.
(AB962 passed by only one vote.) Legislation coordinated with parallel litigation can, in CA, sometimes be happily self-reinforcing.

Bill Wiese
The Calguns Foundation
San Jose CA

How about internet sellers simply refuse to deliver to California addresses? Problem solved.

That would include, of course, California law enforcement, National Guard, etc.

That may ease shortages elsewhere; I'd be glad to buy a bit more to take up the slack. Let the Left Coast rot.

Note that there are no penalties for the buyer here ... heh.

Kinda hard to get around 5th amendment protections if you punished the buyer for not self incriminating.

A tale of two posts: one is informative, hopeful and useful, laying out a concrete plan of action in the face of a new strategy by the anti's to go after ammunition instead of guns themselves.

The other is just deeply, deeply stupid. Crawl back into your bottle of cranky, sir. Shoo.

I hope the good folks at Calguns will slip in a paragraph or two about the dormant commerce clause issues raised by the California scheme. As hard as it was to learn and teach, it has always appealed to me as a way to approach the California problem.

LittleCoach,

We'd prefer a winning strategy. Commerce clause attacks may well result in negative outcomes or way more handwaving and time up the appeals chain. Why not go direct with a clean parallel case?

GMC70,

Your post was unhelpful - nor indicative of a knowledge of the firearms biz. Even if every ammo and mfgr stopped selling to CA - individuals or agencies - there'd still be intermediary distriubtion businesses that would sell guns/ammo to CA LE. Your simpleton proposal would never occur. Ronnie Barrett was able to stop servicing LAPD 50BMG rifles because he had a unique product and got a small "progun PR moment" - but I'm sure LAPD can fix their Barrett rifles just fine, one of their armorers just has a buddy somewhere else order the part.

Bill Wiese
San Jose, CA
The Calguns Foundation

I like that it's justified because it's no more intrusive than laws regulating the sale of cold medicine. See because if it's a law, then it's automatically a good, unintrusive law. Politicians would never stand for bad, intrusive laws. Geez.

Just a question, since I don't know ..
If ammunition buyers are to be fingerprinted, do they also fingerprint you when you buy a gun?

Hi Paul,

Yes. See "How to buy firearms in California" (http://www.wikihow.com/Buy-Firearms-in-California) for a pretty good explanation. In that explanation, they say the ATF DROS requires a thumbprint.

California gun laws are a mess. I do not believe that California has a separate requirement for a thumbprint. That section of the penal code is a hideous read and should be used in law schools as an example of how badly a dysfunctional, imperial, fearful government will tie the law in knots to fix a problem that doesn't exist so they can implement greater tyranny later.

But I digress....

I live in Pennsylvania where we don't have any movie stars to elect (thank God). Lets keep the guns out of the hands of the law abiding, so the criminals don't get hurt on the job. sorry about the smart remarks, The more I read and hear about California, the more I apprieciate Pennsylvania. When will these people get it through thier heads that they are doing by passing such laws, is helping the criminal element out. I wish all of you in California good luck and the freedom of an American.

BOB:

As a California resident I can assure you that most people and most politicians in this state simply hate guns and believe that life in California would be much improved if all guns were confiscated, and that guns were illegal to own, and if self defense was outlawed as it is in the U.K.

The above is not intended a satire or hyperbole, but is just the simple truth as I see it.

You see, there is not idea to get "through thier heads" because their minds are already made up.

Agreed. You can't use reason to get a fool out of a position that he didn't use reason to get into.

Calgun's legal strategies, and federal pro-gun law intervention may be that state's only hope. The majority there prefer treating their neighbors like sheep ( while wanting exemptions for themselves only ).

If wheat that is never sold can fall under CC then surely ammunition that funds federal wildlife plans through taxes can.

You throw away your rifle when you have a pistol Bill?

Never limit your options, because the antis aren't. This "law" runs afoul of so many others it, and the asses who passes it, should all be thrown out.