Burden of proof on Pre-Ban items

[crin63]

If a person owned something that was later banned and there was no mention of discarding, destroying, registering or turning in the items already owned.

If that person was later cited or arrested for having in their possession that banned item. Who would the burden of proof be on as to prove when ownership occurred? Or would that not necessarily be the issue?

[Yurt]

i can't speak for all jurisdictions, but the general rule in criminal matters is the initial burden of proof always rest with the prosecutor/government.

you might want to look into the intent required to be convicted of violating whatever statute you are referring to. that might help you answer your second question.

[crin63]

I realize your position so I tried to keep it as general as possible. I will give further details and let you decide if you want to answer further.

If someone has been collecting gun gear, in particular magazine clips. Lets say for 25 years. Standard clips were 15, 20 and 30 round capacity up until the 10 round maximum law went into effect. The law went into effect in 2000. If someone has older pre-ban ban high capacity clips as many people do who would have the burden of proof as to when they were acquired.

I'm actually going to call the DOJ and ask about that but I'm curious what your thoughts are on it.

[Yurt]

thanks for understanding.

if the law turns on "when" you purchased the equipment, sounds like a grandfather clause, the law might be written to say that "when" it is purchased is an affirmative defense, if so, the burden is on you.

pm me

[Mr. P]

I realize your position so I tried to keep it as general as possible. I will give further details and let you decide if you want to answer further.

If someone has been collecting gun gear, in particular magazine clips. Lets say for 25 years. Standard clips were 15, 20 and 30 round capacity up until the 10 round maximum law went into effect. The law went into effect in 2000. If someone has older pre-ban ban high capacity clips as many people do who would have the burden of proof as to when they were acquired.

I'm actually going to call the DOJ and ask about that but I'm curious what your thoughts are on it.

If an item is "banned" I'm not sure that when said item was acquired would necessarily even be an issue. Now, if banned but grandfathered..the burden would be on the owner to prove the date they acquired said banned item.

Just my opinion.

EDIT: LOL Yurt just said it..sorry.

[Yurt]

great minds think alike :cool:

[5stringJeff]

I realize your position so I tried to keep it as general as possible. I will give further details and let you decide if you want to answer further.

If someone has been collecting gun gear, in particular magazine clips. Lets say for 25 years. Standard clips were 15, 20 and 30 round capacity up until the 10 round maximum law went into effect. The law went into effect in 2000. If someone has older pre-ban ban high capacity clips as many people do who would have the burden of proof as to when they were acquired.

I'm actually going to call the DOJ and ask about that but I'm curious what your thoughts are on it.


thanks for understanding.

if the law turns on "when" you purchased the equipment, sounds like a grandfather clause, the law might be written to say that "when" it is purchased is an affirmative defense, if so, the burden is on you.

pm me

I'm pretty sure Yurt is right. Magazines with a higher capacity were still legal to own during the Clinton years because they had been grandfathered in.

[crin63]

I'm pretty sure Yurt is right. Magazines with a higher capacity were still legal to own during the Clinton years because they had been grandfathered in.

Here in California they banned any clip over 10 rounds back in 2000.

It seems like we face monthly attacks on gun rights here in California by the legislature. People keep saying to leave California but someone has to stay and fight. Most liberal insanity starts here or takes root and grows here.

[The ClayTaurus]

Can I ask an honest non-gun-owner question that I promise has no hidden meanings?

What does a 30 round clip provide you that a 10 round clip doesn't? Besides 20 more rounds?

[darin]

First off - the aren't CLIPS...they are magazines. :)

Secondly - it only increases the cost to the consumer; having to buy MORE. The government regluation of the capacity is stupid - it's simply an invasion of privacy, IMO, into the lives of law-abiding citizens.

:)

[The ClayTaurus]

First off - the aren't CLIPS...they are magazines. :)Thanks for the friendly correction.
Secondly - it only increases the cost to the consumer; having to buy MORE. The government regluation of the capacity is stupid - it's simply an invasion of privacy, IMO, into the lives of law-abiding citizens.

:)Any other reason aside from cost per round?

[hjmick]

The government regluation of the capacity is stupid

Considering the amount of time required to replace an empty magazine with a full one, it is indeed stupid. You can't by a 30 round magazine, but you can by as mant 10 round magazines as your heart desires. Preloaded and within reach, we're talking seconds to reload.

[Yurt]

another friendly question:

say we have another virginia tech, and instead of a 30 round clip, it was 10, could that reloading time, verses just shooting non-stop, added precious seconds that might be used to stop such a person?

[hjmick]

another friendly question:

say we have another virginia tech, and instead of a 30 round clip, it was 10, could that reloading time, verses just shooting non-stop, added precious seconds that might be used to stop such a person?

That depends on how many preloaded magazines the shooter has. With my 1911 it takes less than 5 seconds to dump the empty and insert a fresh magazine. Just push a button and the empty drops out while the other hand drives in a new one.

[Mr. P]

Can I ask an honest non-gun-owner question that I promise has no hidden meanings?

What does a 30 round clip provide you that a 10 round clip doesn't? Besides 20 more rounds?

For me it would be a simple matter of convenience. 30 rds last longer than 10 if yer on the range. Ever load a magazine? The less ya need to do it the better.

Now as far as capacity goes for personal defense..10 would be fine..But, I like the 15 rd mags I have..cus I could send 5 rds out fast and maybe scare the hell outta an intruder (not my intention BTW..just saying) if not I still have 10 rds left. If that's not effective, I have two more 15 rd mags loaded and ready.

[The ClayTaurus]

For me it would be a simple matter of convenience. 30 rds last longer than 10 if yer on the range. Ever load a magazine? The less ya need to do it the better.Only guns I've ever handled were completely unloaded. I can understand the convenience issue.
Now as far as capacity goes for personal defense..10 would be fine..But, I like the 15 rd mags I have..cus I could send 5 rds out fast and maybe scare the hell outta an intruder (not my intention BTW..just saying) if not I still have 10 rds left. If that's not effective, I have two more 15 rd mags loaded and ready.Makes sense.

[Mr. P]

Only guns I've ever handled were completely unloaded. I can understand the convenience issue.Makes sense.

ALL guns are loaded! NEVER FORGET THAT! OK?

[The ClayTaurus]

ALL guns are loaded! NEVER FORGET THAT! OK?Yes yes, the gun owner was quite adamant about that as well. My point was, not only have I not reloaded a weapon, but I've never held a weapon with ammunition inside it.

[5stringJeff]

Yes yes, the gun owner was quite adamant about that as well. My point was, not only have I not reloaded a weapon, but I've never held a weapon with ammunition inside it.

A virgin, eh? :D

[The ClayTaurus]

A virgin, eh? :DYes indeed. Be gentle.

[crin63]

Heres an opinion by someone familiar with California gun laws. These are opinions only, not legal advice or counsel.


Your large-capacity magazine question comes out in your favor, though. The large-capacity magazine ban reads as follows, in pertinent part:

California Penal Code
Section 12020
(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison:
...
(2) Commencing January 1, 2000, manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, or lends, any large-capacity magazine.
...

Later in Section 12020, large-capacity magazines are defined as magazines that can hold more than 10 rounds. There is no ban on mere possession of large-capacity magazines. The law only prohibits manufacturing, importing into California, offering for sale, selling, giving, and lending these magazines. Furthermore, all such activities that occurred before January 1, 2000 are exempt from the law.

So if you possessed your large-cap magazines before 1/1/2000, you are not committing a crime. But, for example, if you attended a gun show in Arizona after 1/1/2000 and bought 30-round magazines, bringing them into California would violate this law. Also, for example, if you bought a 20 round magazine from your friend after 1/1/2000, you could conceivably be charged in an accomplice, accessory, or conspiracy capacity to your friend's violation of the law.

As far as burden of proof, in any criminal prosecution, the state must prove beyond a reasonable doubt that you committed the crime that's charged. But let's say that the magazines in your possession had markings that indicated they were manufactured after 1/1/2000. The state would still have the burden of proving that you acquired the magazines after they become illegal to sell or import, but those markings might be enough for a jury to decide that you violated the law.

Personally, I have large-capacity magazines in my possession that I acquired before 1/1/2000. Even if I lost the purchase receipts for these magazines, I would not worry too much about prosecution or conviction. Something can always happen -- a D.A. can decide to add a charge if he or she suspects illegal activity -- but the burden of proof is still on the state. Typically, large-capacity magazine charges are brought when people are caught selling them, or when other illegal activity is discovered and the magazine charges are added if there's evidence of a violation of the large-capacity magazine law.