JANUARY 2005

COLLATERAL DAMAGE:
HOW AB50 AFFECTS NATIONAL ADVERTISING OF .50 CALIBER BMG RIFLES
By Jason Davis

It goes without saying that California is a breeding ground for anti-gun legislation and litigation. But if you do not live there, what do you care? It doesn't affect you. Or does it?

In fact, what happens in California does affect you, as well as the rest of the nation. The frivolous laws and lawsuits in California spread across the nation like a virus, mutating along the way to cure any defects or objections that are necessary to promote their passage. But even when the law does not spread, even when the law stays in California, it can cause national and international firearms businesses to suffer irreparable damage by affecting the manufactures, distributors and dealers ability to promote their products. Such is the case now with .50 caliber BMG rifles.

As of January 1, 2005 California Assembly Bill 50 is in effect. The language of the bill makes it clear that .50 caliber BMG rifles are not to be sold or offered for sale to anyone in the State of California, unless the person is within a special privileged class that is exempt from the restrictions. Nor are these rifles to be possessed within the state unless the possessor had the firearm prior to 2005 and registers the firearm by April 30, 2006. But, AB50 did more than regulate the transfer and possession of .50 caliber BMG rifles within the state of California. It also regulated the First Amendment free speech rights of fifty caliber manufactures, distributors, dealers and magazine publishers throughout the world by prohibiting them from advertising on the internet or in nationally circulated magazines!

To many who have read AB50, this may be the first they have heard of this restriction on advertising. You can read AB50 until you are blue in the face and never see this prohibition. So how did the State ban fifty caliber advertisements from national publications? As discussed below, the answer is simple, slight of hand!

When the California legislature decided to ban the sale of .50 caliber BMG rifles, they could have done what they have always done by creating an entirely new section within the Penal Code as they did with "assault weapons," "destructive devices," "short barreled rifles/shotguns," and "machine guns." But AB50 did not create entirely new Penal Code sections for the restrictions the California legislature placed on .50 caliber BMG rifles. Instead, the legislature decided to insert the restrictive language within existing Penal Code sections.

Since AB50 chose to regulate a particular firearm based upon its purported and grossly exaggerated destructive capabilities and firepower the appropriate location for the restrictions would have been California's "destructive device" laws, which restrict the sales of firearms over .60 calibers in size due to their purported destructive capabilities.

But AB50 amended the State's current Penal Code sections that address firearms they deem to be "assault weapons," beginning with Penal Code section 12275. At first this may appear to be an odd choice of location for the .50 caliber BMG ban since the stated purpose for restricting firearms deemed to be "assault weapons" is their capability for a "high rate of fire," not their "destructive capabilities." Nevertheless, the placement of the AB-50 language within the "assault weapon" statutes was entirely intentional and well planned.

In general, Penal Code section 12275 and the sections that follow prohibit the manufacture, distribution, transportation, importation into California, keeping/offering/exposing for sale, giving or lending of any "assault weapon." As stated above, AB50 added .50 caliber BMG rifles to this section.

While the restrictions against keeping/offering/exposing for sale appear to preclude any advertising, Penal Code section 12280(e) states that these prohibitions do not apply to the sale to, purchase by, or possession of assault weapons by the Department of Justice, police departments, sheriffs' offices, marshals' offices, the Youth and Adult Corrections Agency, the Department of the California Highway Patrol, district attorneys' offices, Department of Fish and Game, Department of Parks and Recreation, or the military or naval forces of this state or of the United States, or any federal law enforcement agency for use in the discharge of their official duties. In fact, there are many more exceptions for the sale of .50 caliber BMG rifles to certain governmental entities and permittees throughout AB50. And a firearm cannot be sold unless it was kept, offered, and exposed for sale. Thus, one would assume that since AB50 provided exceptions for sales to various governmental entities that this necessarily means that offers for sale and advertisements would be allowed if aimed at those who may lawfully purchase .50 caliber BMG rifles pursuant to the exceptions within AB50. This, however, is not the case.

As was stated above, AB50 did not create a new section of the Penal Code for the regulation of .50 caliber BMG rifles, but amended the "assault weapon" laws. This was a strategic move by the anti-gun lobbyists to cause collateral damages against the fifty caliber industry without being expressly stated in the language of AB50. By amending the "assault weapon" laws to include .50 caliber BMG rifles, all other laws that previously refer to and applied to "assault weapons" now also apply to .50 caliber BMG rifles.

One Code in particular, Penal Code section 12020.5, changes the face of fifty caliber marketing and advertisements throughout the nation. Penal Code section 12020.5 provides that:

It shall be unlawful for any person [individual, partnership, corporation, limited liability company, association, or any other group or entity, regardless of how it was created], to advertise the sale of any weapon or device whose possession is prohibited by Section...12280 in any newspaper, magazine, circular, form letter, or open publication that is published, distributed, or circulated in this state, or on any billboard, card, label, or other advertising medium, or by means of advertising device.

Thus, it is a criminal offense to advertise .50 BMG rifles within "any advertising device" if the advertisement is circulated within the State of California. This language expressly prohibits any advertisements of .50 caliber BMG rifles in national and international publications that are circulated within the State. It also prohibits any form of internet advertising since it is impossible to absolutely prohibit any person from viewing any online advertisement from within California.

In addition to being a criminal offense, this ban on advertisements has been used in the past as a basis for California's very liberally applied unfair business practice laws, as was the case in People v. Arcadia Machine & Tool. In that lawsuit a civil lawsuit was filed against many firearm manufacturers, distributors, dealers and associations, including out of state firearm distributors, alleging that they advertised "assault weapons" in violation of Penal Code section 12020.5. Ultimately, two of the defendants that this law was used against settled, only after incurring tens of thousands of dollars in legal fees.

You may ask, how is this legal? The simple truth is that it is not. California Penal Code section 12020.5 violates .50 caliber BMG rifle and "assault weapon" manufacturer's, distributor's, dealer's and consumer's rights to free speech set forth in the First Amendment of the United States Constitution. Unfortunately, the California legislature has proven to have a great distain for firearm industry and the rights of its citizens. It is unlikely that this law will be repealed. Thus, this law will stand until challenged and proven unconstitutional in a court of law. The only question is how many people will be prosecuted? How many people will be civilly liable for advertising such firearms? And, who will stand up to the state of California to seek the repeal of this law?

The Fifty Caliber Institute is poised to challenge California on this law before it ruins the entire fifty caliber industry. With your help, we can make a difference and show the anti-gunners that while we may be a small minority, we too are constitutionally protected.

VISIT THE FIFTY CALIBER INSTITUTE AT BOOTH NUMBER 5699 TO LEARN HOW YOU CAN HELP PROTECT THE FIFTY CALIBER INDUSTRY FROM FRIVILOUS LAWSUITS AND LEGISLATION!