The California Department of Justice has submitted its most recent slate of draft regulations that ostensibly implement the state’s new “assault weapon” registration process and its ban on “bullet buttons.”
Gun rights advocates have also noted, however, that the regulations redefine, among other terms, “flash suppressor,” “pistol grip,” “threaded barrel,” and “shotgun,” redefinitions that require the participation of the public according to California’s Administrative Procedures Act (APA).
“If the Legislature intended to allow DOJ free reign to amend every single existing definition possibly relating to ‘assault weapons,’ …it would have clearly said so. It did not,” said representatives of the National Rifle Association and the California Rifle & Pistol Association.
The California DOJ claims that its entire set of new firearm regulations is exempt from the standard rulemaking procedure that, under a 1945 law called the Administrative Procedures Act, allows the public time to comment on the new rules.
The Department is granted an exemption from the APA under Penal Code section 30900, subdivision (b)(5). That section, however, only provides the DOJ a limited exemption from the APA rulemaking process for regulations relating solely to the registration of newly defined “assault weapons.”
In other words, the DOJ can create new regulations without public comment, but only those that pertain to the “assault weapon” registration process and bullet buttons.
The DOJ’s new rules go far beyond both of those categories.
“Some [regulations] seek to create or amend a whole host of definitions for ‘assault weapon’ features and other terms,” the NRA’s representatives point out in a letter to the state. The new rules also seek to “regulate activities after the registration process,” which should also be subject to public comment.
The rule change, for example, unilaterally includes shotguns within the definition of “assault weapon.” Despite the fact that the legislature has never included shotguns in its “assault weapon” policies, the DOJ clarifies that the “[a]bility to accept a detachable magazine’ means with respect to a semiautomatic shotgun, [that] it does not have a fixed magazine.”
“Shotguns with ‘bullet buttons’ are now ‘assault weapons’ not by legislative change, but by DOJ’s action alone,” the NRA’s lawyers note.
Of the regulations that do pertain to the new registration process, the most onerous requires firearms owners to submit pictures of each firearm being registered:
One photo shall depict the bullet button style magazine release installed on the firearm. One photo shall depict the firearm from the end of the barrel to the end of the stock if it is a long gun or the point furthest from the end of the barrel if it is a pistol. The other two photos shall show the left side of the receiver/frame and right side of the receiver/frame.
The website for the registration system notes, “At this time, the regulations are still pending, however they should be effective in the very near future.”
California legislators placed a deadline to register assault weapons with DOJ by the end of the year, but the proposed regulations allow applications to be received by June 30, 2018.