People vs Clark

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I am not a lawyer so bear with me. Is there a way to ask, inquire, challenge, ask for clarification, whatever is the proper word, the court what it meant about the "loaded gun"?

Example: loaded magazine in a magwell but no ammo chambered.

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It would help greatly if you posted a link to the case decision, or whatever it is that has the phrase "loaded gun" that you are inquiring about.

I don't mind reading court decisions & trying to explain them in layman's terms but I am not going to do your basic searches for you too.

stay safe.

skidmark

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skidmark wrote:

It would help greatly if you posted a link to the case decision, or whatever it is that has the phrase "loaded gun" that you are inquiring about.

I don't mind reading court decisions & trying to explain them in layman's terms but I am not going to do your basic searches for you too.

stay safe.

skidmark

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Skidmark, I think this is the case KS is referring to:

http://www.hoffmang.com/firearms/People-v-Clark-(1996).pdf

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I thought this was interesting, so I looked it up a bit further. The penal code definition of loaded is still standing (with the law page updated last on jan. 12th 2009), so I'd say that the definition of loaded still stands. If a bullet is attached to a gun in any manner, it's loaded. It gets a bit odd when it comes to muzzle loaders, but in general don't touch a bullet to a gun or it's loaded.

I'll be back, I'm going totape a bullet to the butt of my pistol and see if it can fire said bullet. Perhaps my definition of loaded is different from the court. Anybody else think that common sense doesn't apply to the laws anymore?

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No, the penal code definition of loaded has been slightly modified by People v. Clark. In People v. Clark an unloaded shotgun with live rounds attached to the buttstock in what I believe is called a sidesaddle. The court ruled that while the rounds were attached to the gun, and thus meeting the definition of loaded according to the penal code, that the gun wasn't actually loaded.

So because of People v. Clark you can have a round taped to your gun and you cannot be found guilty of having a loaded firearm. You cannot have a round which is in a place which it can be fired. This includes having a round in the chamber (obviously) or a round in a magazine which is in the firearm.

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Hm, that's interesting. Well, they didn't update the text in the website anyhow: http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=2345203240+0+0+0&WAISaction=retrieve

"(g) A firearm shall be deemed to be loaded for the purposes of
this section when there is an unexpended cartridge or shell,
consisting of a case that holds a charge of powder and a bullet or
shot, in, or attached in any manner to, the firearm, including, but
not limited to, in the firing chamber, magazine, or clip thereof
attached to the firearm; except that a muzzle-loader firearm shall be
deemed to be loaded when it is capped or primed and has a powder
charge and ball or shot in the barrel or cylinder."

That'sfrom the CA site. Sorry for the misinformation, and thanks for the correction, Bigtoe. I wonder who to contact to get them to update their site to the correct writing of the law? I'll be happy to send an email to them, if anyone can point me in the right direction.

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Case law does not change the text of the penal code. The text of the penal code can only be changed by the legislature. But case law is law, regardless. That's how our system works.

And here is all the info on what is or is not loaded: http://www.calguns.net/calgunforum/showthread.php?t=103660

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MudCamper wrote:

Case law does not change the text of the penal code. The text of the penal code can only be changed by the legislature. But case law is law, regardless. That's how our system works.

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100% correct there. I think it's rather ridiculous that the law in San Francisco where everybody has to lock up their guns is still on the books despite the fact that it was ruled unconstitutional, but it's there nonetheless.

One good thing that this system lets us see is the stubbornness of the political leaders. The obvious downside is that the average citizen needs to know more than he/she should in order to comply with the law, which is truly unfortunate.

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bigtoe416 wrote:

No, the penal code definition of loaded has been slightly modified by People v. Clark. In People v. Clark an unloaded shotgun with live rounds attached to the buttstock in what I believe is called a sidesaddle. The court ruled that while the rounds were attached to the gun, and thus meeting the definition of loaded according to the penal code, that the gun wasn't actually loaded.

So because of People v. Clark you can have a round taped to your gun and you cannot be found guilty of having a loaded firearm. You cannot have a round which is in a place which it can be fired. This includes having a round in the chamber (obviously) or a round in a magazine which is in the firearm.

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Now that we have incorporation of the 2A...it seems it might be beneficial for us to challenge this. To me a position from which it can be fired, is in the chamber itself. A bullet can be fired from the chamber of a firearm, it cannot be fired from the magazine/clip of said firearm. It can only be either unloaded from said magazine/clip, or loaded into said firearm from the magazine/clip.

I don't want to be the test case but I don't see why we cant carry with a loaded magazine and empty chamber. In that condition it meets the requirements of an unloaded firearm via CA Fish and Game code.

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camsoup wrote:

Now that we have incorporation of the 2A...it seems it might be beneficial for us to challenge this. To me a position from which it can be fired, is in the chamber itself. A bullet can be fired from the chamber of a firearm, it cannot be fired from the magazine/clip of said firearm. It can only be either unloaded from said magazine/clip, or loaded into said firearm from the magazine/clip.

I don't want to be the test case but I don't see why we cant carry with a loaded magazine and empty chamber. In that condition it meets the requirements of an unloaded firearm via CA Fish and Game code.

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I don't see how incorporation affects the definition of loaded. Keep in mind that the current case law clarifies BOTH the "loaded" and "attached in any manner" to include was that are able to load the firearm in the conventional sense. The case did NOT strike down the "attached in any way" part; it simply clarified that "in any way" was meant to encompass unconventional means of loading a firearm (jury rigged feeding devices).

So, challenging the statutory definition of loaded is fruitless, as the legislature clearly intended to prohibit a "loaded" magazine being inserted in a way that allows loading of the firearm.

However, fear not, as we have Heller.

In the Heller decision, SCOTUS addressed the issue of DC requiring firearms to be locked up or disassembled. The court stated that such requirements are violations of the 2nd Amendment, as it thwarts the intended use of the firearms. In the same way, I think the courts will agree that keeping a firearm unloaded is a similar thwarting of the purpose of self defense.

Hopefully we'll see this challenged soon. I encourage everybody to donate to CalGuns Foundation and Madison Society. Include your sentiments that we want them to go to work on the loaded weapons and school zones prohibitions.