What are Black Powder Guns?
Introduced in the regimes of the earliest firearms, the most common distinction between black powder guns and their more modern descendants is the composition of the propellant charge. Propellants, of course, are materials that cause the projectile of a firearm to move. The propellant of black powder firearms, however, has a much lower energy output and thus is still capable of firing the projectile with enough force to kill an animal but is not sufficient to provide greater functionality such as a semi-automatic firing mode or acceptable noise levels. Black powder guns are often referred to as muzzleloaders and are a favorite of many gun users for their relatively lower price , collector’s value and historical interest. Black powder guns can be manufactured either as reproductions or as original firearms. In many ways, however, the technology behind such guns remains the same as it did centuries ago – thus causing even modern black powder guns to be classified as antique firearms under California gun laws.
Black Powder Guns as Described by California Law
California defines a "black powder gun" as "any device designed to be used as a weapon, the barrel of which is an integral part of the device, and all of the following conditions are met:" (1) the device was manufactured prior to January 1, 1899, (2) the device uses a propellant other than fixed ammunition, (3) all parts of the device, including the barrels, are in the same location they were in when the device was last assembled, and (4) the device is capable of being fired or discharged. (PC 31650.)
California Penal Code 31700 however holds that a "black powder gun" does not include a gun that is an antique firearm. An "antique firearm" is defined as "any firearm manufactured prior to January 1, 1899, any firearm using fixed ammunition manufactured prior to January 1, 1899, or any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a muzzle-loading shotgun with a matchlock, flintlock, percussion cap, or similar type of ignition system, or the type commonly known as a black powder cannon, or any firearm using fixed ammunition, or another type of firearm, that appears to be firearm as described above but is not designed to use a propellant other than fixed ammunition." (PC 16700.)
Black powder guns are illegal to sell in California (PC 31700) and California residents who possess a black powder gun purchased out of state are theoretically prohibited from bringing it into California unless it is an antique firearm. However, antique firearms are not black powder guns, they are legal to possess and transfer in California. On the other hand, it should be noted that California law imposes stiff penalties for possession of illegal weapons.
Purchasing and Ownership of Black Powder Guns
In California, the purchase and private ownership of black powder guns is a highly regulated activity. Permits or licenses are required to purchase long gun types, such as flintlock rifles or shotguns, and ammunition for such guns. Permits or licenses are not required to purchase round gun styles, such as cap and ball revolvers, and ammunition for such guns.
In addition to the general requirements for firearms transactions, anyone wishing to purchase black powder guns for a lawful purpose must provide proof of age. Under California Penal Code Section 31705(b), a person is not eligible to acquire black powder guns unless he or she is at least 18 years old. Even persons aged 18 to 20 may not purchase black powder guns unless they obtain a black powder-prohibited person permit from the Justice Department.
Before purchasing black powder guns or ammunition, the purchaser must also show identification proving he or she is eligible to obtain black powder guns. Under California Penal Code Section 31705(b), eligibility may be proven through one of the following methods: While an Application for Black Powder Handgun Permit (ABPHP) alone is not considered adequate proof of eligibility to acquire black powder guns, a local law enforcement official’s signature on such an application demonstrates that the applicant unquestionably meets all other eligibility requirements.
In addition to proving eligibility, each black powder guns transaction is subject to Department of Justice (DOJ) regulations. The dealer must submit the completed Application for Black Powder Handgun Permit to the Department on behalf of the purchaser. The Department then registers the gun, issues a permit to the dealer, and then notifies the purchaser that the registration is complete and the permit is available. The DOJ keeps a record of all black powder guns transactions that it oversees.
Privately made black powder guns or vintage black powder guns manufactured before 1899 that are transferred or sold between ordinary citizens will not be registered by the Department of Justice either on the initial sale or on subsequent sales. Generally, age of the firearm is the only consideration. If the seller or buyer wishes to have records of the transaction, the seller can apply for a gun identification number (PIN) from the Department. However, this is nowhere near as detailed a record as the pin number provided to a dealer in a regular firearms transaction.
In addition, as noted above, persons 18-20 years old are not eligible to acquire black powder guns without an ABPHP. A local law enforcement agency will issue a permit to the 18-20 year old if the agency determines that the applicant is not a prohibited person and that the permit is being sought for lawful purposes. The permit is valid for up to five years or until the applicant is no longer eligible to acquire black powder handguns, whichever occurs first.
Neither of these permits will allow the 18-20 year old to purchase firearms or ammunition. These permits only allow the 18-20 year old to purchase black powder guns and ammunition. Further, the permit will not authorize the transportation of any firearm other than a black powder firearm, despite the fact that black powder guns are treated like modern firearms for purposes of possession.
Some other notable laws pertaining to the private purchase of black powder guns include the following. First, all transfers of black powder guns must take place through a licensed dealer, unless exempted from the licensing requirement. If the black powder gun is a curio/relic and is not restricted under California Penal Code Section 32000, it will not be subject to the general prohibition on shipping, carrying, or transporting "assault weapons." Perhaps more importantly, under California Penal Code Section 17180, the private transfer of black powder guns from any person who is prohibited by statute from possessing firearms is prohibited. It is not clear if this includes black powder guns that are prohibited under unique provisions, such as Penal Code Section 29800(a) (persons convicted of certain drug crimes) and Penal Code Section 29805 (persons convicted of certain criminal offenses).
In addition, individuals in California may only possess or carry black powder gun in areas where such guns are allowed under applicable state and local laws. Where black powder guns and arms may be fired with small arms ammunition, all city, county, and public agency regulations that apply to black powder guns and private firearm ranges apply equally to such areas.
Usage and Carrying of Black Powder Guns
Each of the fifty-seven (57) counties in California has their own local ordinances concerning the use and carrying of all guns, including black powder guns. You must look to your own county ordinance to determine what is or is not allowed. A starting point to do this is to search the county website under ordinances. Unfortunately, many counties do not have the local ordinance available on their website. You may have to actually go to your city hall, county courthouse or sheriff’s office and ask to see ordinance. In some cases, the ordinance may not be available.
Remember that unless there is a state law putting a restriction on the use of a particular firearm, counties and municipalities cannot restrict the use of that weapon. But because there are no state laws restricting the use of any type of firearm, each county can restrict all they want. So, it is very important that you check to see whether you can legally use your gun for what ever purpose you want to use it for, prior to using it; even if you believe it doesn’t need to be checked because of no specific state law prohibiting its use.
Also, just because the county ordinance allows you to use a particular firearm that does not allow you to carry the firearm with you. Again, you must look to your own county’s laws to determine whether open or concealed carrying is allowed in your county and city.
Transporting Black Powder Guns Within California
Transporting black powder guns in California is subject to a variety of laws and regulations designed to ensure public safety and prevent illegal activity. Despite the fact that black power weapons fall under the jurisdiction of the State Department of Justice (DOJ), California law does not require the registration of black powder handguns, rifles and shotguns.
Due to this lack of registration requirement, the DOJ does not maintain a database or list of black powder gun owners. This lack of oversight, however, does not relieve responsible citizens of their legal duty under California law to transport firearms in a safe manner. This includes transporting black power weapons in a way that prevents negligent discharge and ensures that only individuals with permission to travel with the firearm are able to access it during transport.
Black powder weapons fall under the category of "antique firearms," as defined by California’s Penal Code Section 16170. The law also states that weapons manufactured prior to January 1, 1899 cannot be classified as "large caliber" handguns, rifles or shotguns. Based on this definition, these "antique firearms" can legally be transported within the state of California .
While we encourage everyone to follow the letter of the law, the exceptions to black powder firearm transportation laws may cause confusion. As of January 1, 2014, blank-firing guns that require special permits for usage in California may no longer be imported into the state. This law now covers blank-firing revolvers and semi-automatic pistols.
Another provision regarding the importation of black powder weapons states that anyone who intends to bring a black powder weapon into the state must first receive a letter of authorization from the DOJ. However, there are no specific guidelines on how this letter has to be obtained or the waiting period for being granted authorization.
In addition to following all state guidelines related to black powder weapon transportation, we also strongly encourage always following common sense safety practices to prevent a dangerous accident. In terms of transporting black powder weapons, this means transporting them unloaded, wrapped and in a secured, locked case. This will prevent any potential negligent discharge during transit, while ensuring that only persons who have permission to possess the firearm are able to access it while traveling.
Consequences of Violating Regulations
Failure to comply with California Gun Laws regarding black powder may result in a fine or imprisonment: both felonies, or a combination of the two. Further violations may result in additional fines and jail time, or even two felonies. The state has the authority to confiscate any black powder that is used for an offense as well.
In accordance with section 117007 of the California Health and Safety Code, the registration fee for acquiring a black powder gun is $50. This amount was effective beginning January 1, 2018. Section 12070 further explains that, "… any person who gives, sells, transfers, offers to sell, or transfers to a dealer a firearm in violation of this section is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or in a county jail for two years…,". California law recognizes a black powder gun as a firearm. However, the above does not refer specifically to black powder guns. The punishment would, therefore, still apply to black powder guns.
Exceptions and Other Special Circumstances
Certain exceptions and special circumstances apply when it comes to black powder gun laws in California. One such exception is for antique firearms. According to California Penal Code section 921(a) (16), antique firearms are classified as any weapon, including a frame or receiver, that was originally manufactured in or before 1898 or that was made up with matchlocks, wheel locks, flintlocks, percussion caps in or before that year. Additionally, any replica designed or redesigned to use rimfire or conventional centerfire ignition with a matchlock, wheel lock, flintlock, or percussion cap is also an antique firearm.
Antique firearms may not be illegal per se in California, but there are a number of restrictions that apply to their use, sale, or distribution. For example, all antique firearms must be kept unloaded and in a locked container while being transported. Any person who wants to carry an antique firearm on their person, or transfer it to another person, must have a license. Those licenses are necessary prior to an antique firearm being transferred and must have certain information in their possession if the person carrying the firearm has a permit.
Additional exceptions and special circumstances apply to the purchase of antiques for personal use. First, the firearm purchaser is going to have to appear in California in order to buy the firearm. Second, a background check, paid in full, must be completed. Third, proof of age must also be shown.
Another special circumstance concerns the purchase of black powder handguns from out of state firearm dealers. Federal law allows persons over 21 years of age to buy a black powder handgun from a dealer in another state, but California law does not. A Californian must still appear in the state where the handgun is located and then pay the fees and taxes that are appropriate. Fourth, the person must pass a background check. Fifth, the person must give verification that the item is going to be used for sporting or recreational purposes only and not in connection with a crime.
Update on Recent Legal Changes
While few issues surrounding gun rights and gun safety unite gun owners across political and philosophical lines, one of those rare exceptions is black powder firearms. Even legislators who do not support constitutional carry or open carry generally do not attempt to limit when, where, or how an individual can possess a black powder firearm.
Until Friday of last week.
In a surprise move just ahead of the summer recess, AB 1769, legislation drafted by anti-gun Assemblymember Reggie Jones-Sawyer (D-Los Angeles), was slipped into the State Assembly’s "suspense file" over Memorial Day weekend. The "suspense file" is where the Assembly Committee on Appropriations sends any bill with a negative fiscal impact on the state. Such a fiscal impact often correlates into a requirement for new spending for future implementation, often exceeding $50,000.20 So, AB 1769 was placed in the "suspense file," meaning while the government may expect to spend money on the program, it does not require a full fiscal analysis. In practical terms, this means that while there is no requirement to analyze or estimate the fiscal impact of the bill, it could still be passed without a vote or recorded opinion.21
The goal of AB 1769 is simple. It would require that, once signed into law, any historical curator or private collector wishing to acquire a black powder firearm would have to submit their name to the CADOJ. CADOJ would maintain a registry of these names in a manner similar to our firearm dealer system (Firearms Transaction Record System or FTRS)22. However, unlike the FTRS, the CADOJ does not have a physical database of all firearm purchasers and sellers , with which to compare this data. This means in order to use the registry, the CADOJ would need to create a physical database of all black powder collectors.
The only time such a database has been attempted was in the spring of 2014, when the BATF attempted to create a secure database of all AR-15 owners. This database required approximately 289,471 hours of training, 1,250,000 hours of database programming, 51,126,000 hours of file updating, 153,369,000 hours of database searching, and more than 160,000,000 hours of record keeping. This black powder registration scheme would require similar – if not greater – amounts of time and money.
With just 12 calendar days to go before the legislature’s summer recess, any bill that is to be moved from the "suspense file" must be moved to one of the fiscal committees for a vote. The last day for bills to be reported out of their house of origin is Friday, June 15. AB 1769 is currently scheduled for a vote in the Senate Appropriations Committee, but it could be moved to the Senate Public Safety Committee.
If either committee approves the bill and it is scheduled for a floor vote, AB 1769 could have a chance of being moved ahead of the summer recess. If AB 1769 makes it out of committee and the floor, it would go into the California Senate. If passed, it would go to the governor for his consideration. If approved by both houses and signed by the governor, AB 1769 will take effect on January 1, 2019.
Gun owners and advocates should act now. Contact the members of the Senate Public Safety Committee and urge them to vote NO on AB 1769.