Firearms Myth 1: CA Roster vs. Existing Ownership

I hear this myth often, including recently when I was at a local gun shop (a popular chain), purchasing some...stuff. The myth is that you can't own a firearm in California that's not on the roster, or that firearms not on the roster are "illegal."

There's a similar myth, which is related, in which people believe one person can give or sell a firearm to another person (private party transfer) without going through the normal firearms sale process. For those of us in CA, we know that sales process includes unconstitutional background checks & other limitations. In fact, many in the media and many Democrat politicians claim these private party transfers are "loopholes" and often refer to them as "gun show loopholes," implying anyone can go to a gun show and purchase any firearm without invoking the standard laws that govern firearm purchasing in the state. Through this failed logic (and blatant lying), anti-gunners claim anyone can purchase any firearm if they do so through a private party transfer.

So, two points to cover: 1) can you own a firearm that isn't on the CA roster 2) can you sell or transfer a firearm not on the roster.

Or put in another way: 1) are committing a crime if you own a firearm that's not on the CA roster 2) can you use private party transfers to obtain firearms that aren't on the CA roster?

Let's start with the roster & ownership confusion.

Here's a quote from the California Department of Justice website (http://certguns.doj.ca.gov/) that describes the roster:

"Effective January 1, 2001, no handgun may be manufactured within California, imported into California for sale, lent, given, kept for sale, or offered/exposed for sale unless that handgun model has passed firing, safety, and drop tests and is certified for sale in California by the Department of Justice. Private party transfers, curio/relic handguns, certain single-action revolvers, and pawn/consignment returns are exempt from this requirement."

Firearms that have been certified are documented by the roster. To know if the firearm in question is "certified for sale in California," you can search by manufacturer on that same website. Now, this quote from DOJ does add to the confusion. CA gun laws have become so complicated, it can be difficult to discern whether or not you are committing a crime or not. In this case, the CA DOJ says "private party transfers...are exempt from this requirement." That's sort of true. Well...it's a partial truth. There are some exemptions with regard to private party transfers, but they are very specific circumstances (i.e. transfers to immediate family members or domestic partners, plus some exemptions for antiques).

But the general ownership question seems pretty straight-forward right? Can't sell it or buy it if CA hasn't approved it. That means dealers can't import for sale, and private parties can't purchase, from anyone. Sales of firearms in CA are governed by laws that require the transaction be managed by an FFL. The firearms transfer process by the FFL then invokes the same requirements from a sales perspective, and the FFL can't sell you a firearm that's not approved by the state. But if you already own it, that action precedes the law because you aren't purchasing it.

In other words, if it was legal to purchase the firearm when you did (i.e. before the roster or while it was on the roster), then it is still legal to own it. You see the roster (unconstitutionally) limits what can or can't be sold. That by nature (unconstitutionally) restricts future ownership, but does not affect current ownership.

Ok, now let's focus on transfers. CA Penal Code 27545 requires any transfer of a firearm between one party and another (with some exceptions for immediate family members), must be managed by an FFL, thus invoking normal firearm transfer requirements - including the invocation of the CA roster of certified firearms. In fact, Penal Code 27545 defines private party transfers a crime unless one party is an FFL:

"Where neither party to the transaction holds a dealer’s license issued pursuant to Sections 26700 to 26915, inclusive, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer pursuant to Chapter 5 (commencing with Section 28050)"

Ok, so if you don't have a license, you have to use a dealer. Well, can't the dealer just witness the transfer? Nope. Invoking the dealer, invokes the Dealer Record Of Sale process or DROS which means the sale will be fully documented, you have to provide proof of identity and residency. You'll be subjected to a background check, and the normal (unconstitutional) 10 day waiting period. When the dealer enters the DROS information, they also have to enter the firearm make and model information - which invokes the (unconstitutional) CA roster. The process can only move forward if all the legal requirements are met.

See here: https://oag.ca.gov/firearms/pubfaqs#3

So myth 1 busted: there is no law banning you from owning a firearm not on the CA roster, unless the firearm is banned by another law (i.e. the unconstitutional assault weapons ban). You can't purchase one that's not on the CA roster, but you can own it. So, how would you own one that you can't purchase? Simple; you purchased it before it was banned or your parent, spouse, or child did and they transferred it to you.

Now myth 2 busted: you can't transfer a firearm that isn't on the roster...unless the recipient is an immediate family member defined as husband or wife or child or parent.

Alright, now that we know the law, it's story time. Sadly though, this is a true story.

Here's how the perpetuation of these myths played out recently right in front of me. I was in the process of completing a transaction at a local sporting goods store (and a CA chain), when the store clerk paused our engagement to answer the phone. After a few words were exchanged, they called for a store manager, and when he arrived, the clerk explained the nature of the call.

She said, "the caller has some questions about FFL transfers and fees."

The manager picked up the phone and briefly confirmed that they do perform FFL transfers for a fee, then asked about the firearm the caller wanted to transfer. The store manager made a "pfft" sound and with a annoyed look on his face said into the phone, "uh, those aren't on the roster, which means they are illegal." After a few more grunts, he ended the call saying, "if it's not on the roster, it's illegal to own, so I can't help you transfer it." He stood there shaking his head, still clearly annoyed.

This all went down right in front of me, maybe two feet away, so I asked, "what were they trying to transfer?" According to the law we just reviewed, the only thing you can't own are banned firearms (which have little to do with the roster). Not on the roster, does not make it illegal to own remember?

The manager said, "oh an old Colt that isn't legal anymore." He didn't clarify. Having recently read that Colt 1911s had been dropped from the CA roster, I assumed that maybe what the caller was referring to was a private party transfer of a non-roster pistol. So I said, "oh, I read that 1911s were being dropped from the roster." The manager corrected me. He said, "oh no, not a 1911, the guy was trying to transfer a Colt Python, but they aren't on the roster. We can't transfer illegal guns." Then he walked away making some other remark under his breath, further expressing his annoyance.

I was stunned. Now, there is a nuance here. As we outlined above, it is illegal to purchase or transfer a firearm that isn't on the California roster of approved firearms, and since this caller was trying to transfer it, that invokes the CA roster and the recipient of the transfer has to go through the normal purchase process. However, there's a difference between selling and owning and I clearly remember the store manager saying "it's not legal to own" and "illegal gun(s)." As long as the firearm isn't on a banned list, even if it's on the roster and can't be purchased today, it's perfectly legal to own it.

Now, part of what he told the caller is true - he can't help him transfer a firearm that's not on the roster. But by declaring the firearm "illegal" and by saying you can't own it, he's perpetuating a myth.

I was shocked this store manager said what he did in the way that he did. He may have erred in what he said, but the message he conveyed to the caller and repeated to me was "if it's not on the roster, you can't own it." That is not true at all.

I was also shocked by the way he treated the caller and how annoyed he was. Now, in his defense, I wasn't on the call so I don't know what the caller said. However, if I'm a store manager of a shop that sells lots and lots and lots of firearms, I'm going to take the time to be very intentional in my word selection, and I'm going to use every opportunity to help educate the public including my potential customers.

I guess this is a story about poor service at a local gun shop, but it serves to illustrate the confusion and how it's being perpetuated - even by allegedly pro-gun people.

Learn the law. It's your responsibility.