Post by Indeo on Sept 12, 2007 17:55:38 GMT 8
extracted from UAA by Fallujah posted 02.21.07
AIRSOFT EXCLUDED FROM COMELEC GUN BAN - A MEMO OF LAW
RE: AIRSOFT GUNS INCLUDED IN COMELEC GUN BAN?
The power of the Comelec to regulate the carrying and transport of firearms is derived from Section 261, paragraph (q) of the Omnibus Election Code, which states:
“(q) Carrying of firearms outside of residence or place of business- Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the lection period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or aircraft shall not be considered as a residence or place of business or extension hereof”
By virtue of the foregoing provision of law, Comelec regularly issues during election period Resolutions imposing a nationwide gun ban on carrying firearms outside of residence or place of business. The current Comelec Resolution No. 7764 imposing a nationwide gun ban defines the term “firearm” as:
“Section 2 Prohibitions – During the election period from January 14, 2007 to June 13, 2007, it shall be unlawful for:
(a) Any person, including those possessing a permit to carry firearms outside of residence or place of business, to bear, carry or transport firearms or other deadly weapons in public places including any building, street, park, private vehicle, or public conveyance. For the purpose “firearm” includes airgun, while deadly weapons include hand grenades or other explosives, except pyrotechnics.” (Underscoring supplied)
It is a basic principle of administrative law that administrative agencies such as the Comelec may exercise only such powers as are expressly granted or delegated to them by law [Guerzon vs. Court of Appeals, 164 SCRA 182]. Clearly, the power of Comelec to regulate deadly weapon extends only to “firearms”, as stated in above-quote Section 261 of the Omnibus Election Code.
The law defines what a firearm is. Specifically, Section 877 of the Revised Administrative Code (dated 16 October 1916), defines “firearm” as follows:
"Firearms or arms as herein used, include rifles, muskets, carbines, shotguns, revolvers, pistols, and all other deadly weapons from which a bullet, ball, shot shell, or other missile may be discharged by means of gunpowder or other explosives. The term also includes air rifles except such as being of small caliber and limited range and use as toys. The barrel of any firearm shall be considered a complete firearm." (Emphasis supplied)
Airsoft guns are replica toy guns which shoot low velocity plastic balls by means of spring air. Clearly, being low powered and of limited range, as used in games, airsoft guns fall within the exception of “toys” as stated above by Section 877 of the Revised Administrative Code. In fact, airsoft players shoot each other in games with no injurious or harmful effects. It is similar to paintball, but without leaving a mark on the target.
The distinction between airguns as “firearms” as opposed to “toys” is likewise stated in Executive Order No. 712 dated 28 July 1981 which vests with the PNP the authority to determine whether or not an air rifle/pistol is considered as a toy and whether or not it is considered as a firearm. Pursuant to said EO 712 the PNP promulgated in 29 January 1992, its Rules and regulations Governing the Manufacture, Sale, Possession, and Carrying of Air Rifles/ Pistols, dated 29 January 1992, which provides a standard “power test” by which airguns could be either classified as firearms or toys:
“5. Testing of air rifles/ pistols
c. the air rifle/pistol shall be fired three (3) times at an ordinary plywood, one-fourth (1/4) inch thick, from a distance of ten (10) feet. If any of the fired pellets penetrated (passed through) the plywood, the air rifle/ pistol shall be classified as firearm; otherwise, the air rifle/pistol shall be classified as toy.” (Underscoring supplied)
Airsoft guns do not the foregoing test for the reason that plastic bb’s fired at low velocities are simply not powerful enough to penetrate plywood. As stated, airsoft guns are in fact even designed to shoot fellow players, with no lethal or injurious consequences.
One legal problem, however, with airsoft guns is that there exists a Letter of Instruction No. 1264 dated 31 July 1982, which directs the PNP to confiscate all toy and replica firearms which are replicas of true firearms. Although there is no penal offense for violation of LOI 1264, the sale, distribution, manufacture and display of such replica firearm toys is prohibited.
Thus, there was a legal dilemma in that airsoft guns being replica firearms are not true firearms and could not be subject to licensing of firearms, but nevertheless they were banned as toy replicas of genuine firearms.
In order to resolve the “quasi” nature of airsoft guns, PROGUN along with 63 airsoft teams nationwide, and a group of lonewolves filed a petition on 15 August 2005 with the PNP for formal classification and registration of airsoft guns as toy airguns. This was to legitimize and formalize the status of airsoft guns as toy airguns, which would exempt them from the coverage of LOI 1264.
In response to said petition, on 24 July 2006, PNP Chief Oscar Calderon signed the Amendments to the Implementing Rules and Regulations Governing the Manufacture, Sale, Possession and Carrying of air Rifles/ Pistols. This memo re-classified airsoft guns as “special airguns”, which are lower powered and limited range compared with “regular” airguns which shoot lead pellets.
Further on 13 September 2006, the Chief PNP Oscar Calderon issued PNP Circular No. 8 which laid out the implementing rules and regulations for airsoft guns. As defined in the implementing rules and regulations for airsoft (IRR), airsoft guns are defined as toys:
"IV. Definition of Airsoft Rifle/ Pistol:
Airsoft rifle/pistol herein used includes battery operated, spring and gas type powered rifles/ pistol which discharge plastic or rubber pellets only as bullets or ammunition.
Airsoft rifle/pistol as a toy shall refer to those manufacture purposely as replica of a real armament with all its specifications and corresponding intellectual property sign or logo." (Emphasis supplied)
PNP Circular No. 8 has been amended as of February 2007. In the amended Circular, Paragraph V defines and confirm that airsoft rifles/pistols are low powered "special type of airgun" which do not exceed 550 feet per second using .20 gram plastic bbs.
The classification of airsoft guns as toy airguns (“special type of airgun”) by the PNP expressly excluded these guns from the definition of “firearm” under the law. Moreover, as stated, Section 877 of the Revised Administrative Code (dated 16 October 1916), expressly excludes from the definition of firearms, air rifles such as being of small caliber and limited range and use as toys.
The Comelec Resolution on a nationwide Gun ban therefore which is issued pursuant to law, Section 261, paragraph (q) of the Omnibus Election Code, includes only firearms and those airguns which are so classified as firearms. In this regard, Comelec Resolution must be read within the confines of its legislatively delegated authority under the Omnibus Election Code to regulate only “firearms”. It elementary that Comelec as an administrative body may issue only such rules, issuances, and regulation which are consistent with the Constitution and its enabling statute [Conde v. Commission on Audit, 264 SCRA 19].
Inasmuch airsoft guns as toy airguns are expressly excluded from Comelec authority which is empowered only to regulate “firearms” under the Omnibus Election Code, airsoft guns are not subject to the election gun ban and are thereby excluded.
Note: The Amended PNP Circular No. 8 is being forwarded to Chief PNP Gen. Oscar Calderon for his signature. We expect the Circular to be signed within March 2007.
AIRSOFT EXCLUDED FROM COMELEC GUN BAN - A MEMO OF LAW
RE: AIRSOFT GUNS INCLUDED IN COMELEC GUN BAN?
The power of the Comelec to regulate the carrying and transport of firearms is derived from Section 261, paragraph (q) of the Omnibus Election Code, which states:
“(q) Carrying of firearms outside of residence or place of business- Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the lection period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or aircraft shall not be considered as a residence or place of business or extension hereof”
By virtue of the foregoing provision of law, Comelec regularly issues during election period Resolutions imposing a nationwide gun ban on carrying firearms outside of residence or place of business. The current Comelec Resolution No. 7764 imposing a nationwide gun ban defines the term “firearm” as:
“Section 2 Prohibitions – During the election period from January 14, 2007 to June 13, 2007, it shall be unlawful for:
(a) Any person, including those possessing a permit to carry firearms outside of residence or place of business, to bear, carry or transport firearms or other deadly weapons in public places including any building, street, park, private vehicle, or public conveyance. For the purpose “firearm” includes airgun, while deadly weapons include hand grenades or other explosives, except pyrotechnics.” (Underscoring supplied)
It is a basic principle of administrative law that administrative agencies such as the Comelec may exercise only such powers as are expressly granted or delegated to them by law [Guerzon vs. Court of Appeals, 164 SCRA 182]. Clearly, the power of Comelec to regulate deadly weapon extends only to “firearms”, as stated in above-quote Section 261 of the Omnibus Election Code.
The law defines what a firearm is. Specifically, Section 877 of the Revised Administrative Code (dated 16 October 1916), defines “firearm” as follows:
"Firearms or arms as herein used, include rifles, muskets, carbines, shotguns, revolvers, pistols, and all other deadly weapons from which a bullet, ball, shot shell, or other missile may be discharged by means of gunpowder or other explosives. The term also includes air rifles except such as being of small caliber and limited range and use as toys. The barrel of any firearm shall be considered a complete firearm." (Emphasis supplied)
Airsoft guns are replica toy guns which shoot low velocity plastic balls by means of spring air. Clearly, being low powered and of limited range, as used in games, airsoft guns fall within the exception of “toys” as stated above by Section 877 of the Revised Administrative Code. In fact, airsoft players shoot each other in games with no injurious or harmful effects. It is similar to paintball, but without leaving a mark on the target.
The distinction between airguns as “firearms” as opposed to “toys” is likewise stated in Executive Order No. 712 dated 28 July 1981 which vests with the PNP the authority to determine whether or not an air rifle/pistol is considered as a toy and whether or not it is considered as a firearm. Pursuant to said EO 712 the PNP promulgated in 29 January 1992, its Rules and regulations Governing the Manufacture, Sale, Possession, and Carrying of Air Rifles/ Pistols, dated 29 January 1992, which provides a standard “power test” by which airguns could be either classified as firearms or toys:
“5. Testing of air rifles/ pistols
c. the air rifle/pistol shall be fired three (3) times at an ordinary plywood, one-fourth (1/4) inch thick, from a distance of ten (10) feet. If any of the fired pellets penetrated (passed through) the plywood, the air rifle/ pistol shall be classified as firearm; otherwise, the air rifle/pistol shall be classified as toy.” (Underscoring supplied)
Airsoft guns do not the foregoing test for the reason that plastic bb’s fired at low velocities are simply not powerful enough to penetrate plywood. As stated, airsoft guns are in fact even designed to shoot fellow players, with no lethal or injurious consequences.
One legal problem, however, with airsoft guns is that there exists a Letter of Instruction No. 1264 dated 31 July 1982, which directs the PNP to confiscate all toy and replica firearms which are replicas of true firearms. Although there is no penal offense for violation of LOI 1264, the sale, distribution, manufacture and display of such replica firearm toys is prohibited.
Thus, there was a legal dilemma in that airsoft guns being replica firearms are not true firearms and could not be subject to licensing of firearms, but nevertheless they were banned as toy replicas of genuine firearms.
In order to resolve the “quasi” nature of airsoft guns, PROGUN along with 63 airsoft teams nationwide, and a group of lonewolves filed a petition on 15 August 2005 with the PNP for formal classification and registration of airsoft guns as toy airguns. This was to legitimize and formalize the status of airsoft guns as toy airguns, which would exempt them from the coverage of LOI 1264.
In response to said petition, on 24 July 2006, PNP Chief Oscar Calderon signed the Amendments to the Implementing Rules and Regulations Governing the Manufacture, Sale, Possession and Carrying of air Rifles/ Pistols. This memo re-classified airsoft guns as “special airguns”, which are lower powered and limited range compared with “regular” airguns which shoot lead pellets.
Further on 13 September 2006, the Chief PNP Oscar Calderon issued PNP Circular No. 8 which laid out the implementing rules and regulations for airsoft guns. As defined in the implementing rules and regulations for airsoft (IRR), airsoft guns are defined as toys:
"IV. Definition of Airsoft Rifle/ Pistol:
Airsoft rifle/pistol herein used includes battery operated, spring and gas type powered rifles/ pistol which discharge plastic or rubber pellets only as bullets or ammunition.
Airsoft rifle/pistol as a toy shall refer to those manufacture purposely as replica of a real armament with all its specifications and corresponding intellectual property sign or logo." (Emphasis supplied)
PNP Circular No. 8 has been amended as of February 2007. In the amended Circular, Paragraph V defines and confirm that airsoft rifles/pistols are low powered "special type of airgun" which do not exceed 550 feet per second using .20 gram plastic bbs.
The classification of airsoft guns as toy airguns (“special type of airgun”) by the PNP expressly excluded these guns from the definition of “firearm” under the law. Moreover, as stated, Section 877 of the Revised Administrative Code (dated 16 October 1916), expressly excludes from the definition of firearms, air rifles such as being of small caliber and limited range and use as toys.
The Comelec Resolution on a nationwide Gun ban therefore which is issued pursuant to law, Section 261, paragraph (q) of the Omnibus Election Code, includes only firearms and those airguns which are so classified as firearms. In this regard, Comelec Resolution must be read within the confines of its legislatively delegated authority under the Omnibus Election Code to regulate only “firearms”. It elementary that Comelec as an administrative body may issue only such rules, issuances, and regulation which are consistent with the Constitution and its enabling statute [Conde v. Commission on Audit, 264 SCRA 19].
Inasmuch airsoft guns as toy airguns are expressly excluded from Comelec authority which is empowered only to regulate “firearms” under the Omnibus Election Code, airsoft guns are not subject to the election gun ban and are thereby excluded.
Note: The Amended PNP Circular No. 8 is being forwarded to Chief PNP Gen. Oscar Calderon for his signature. We expect the Circular to be signed within March 2007.