BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 4 7 SB 47 (Yee) As Amended March 20, 2013 Hearing date: April 16, 2013 Penal Code SM:mc ASSAULT WEAPONS HISTORY Source: Author Prior Legislation: SB 249 (Yee) - died in Assembly Appropriations, 2012 AB 2728 (Klehs) - Ch. 793, Statutes of 2006 SB 238 (Perata) - Ch. 499, Statutes of 2003 SB 626 (Perata) - Ch. 937, Statutes of 2001 SB 23 (Perata) - Ch. 129, Statutes of 1999 Roberti-Roos Assault Weapons Control Act - Ch. 19, § 3, Stats. 1989 Support: California Chapters of the Brady Campaign to Prevent Gun Violence; California Department of Justice; California Nurses Association; California Partnership to End Domestic Violence; Los Angeles Community College District; Law Center to Prevent Gun Violence; Violence Policy Center; Women Against Gun Violence; Youth Alive!; California Federation of Teachers; California State PTA; California Church Impact; Moms Demand Action for Gun Sense in America; CLUE California; PICO California; Doctors for America; Violence Prevention Coalition of Orange County; Laguna Woods Democratic Club; American Association of University Women; Coalition Against Gun (More) SB 47 (Yee) Page 2 Violence; California Chapter of the American College of Emergency Physicians; Office of the California Attorney General; City and County of San Francisco; Coalition to Stop Gun Violence; California State Conference of the NAACP; California Medical Association; Bend the Arc: Jewish Partnership for Justice; Courage Campaign; The Christy Lynn Wilson Foundation; several letters from private citizens Opposition:California Right to Carry; California Association of Firearms Retailers; California Sportsman's Lobby; Crossroads of the West; California Sportsman's Lobby, Inc.; National Shooting Sports Foundation, Inc.; Outdoor Sportmen's Coalition of California; Safari Club International; National Rifle Association of America; California Association of Federal Firearms Licensees; California Rifle and Pistol Association; several letters and phone calls from private citizens KEY ISSUES SHOULD THE DEFINITION OF ASSAULT WEAPON BE AMENDED TO REFER TO A FIREARM THAT HAS ONE OF SEVERAL SPECIFIED MILITARY-STYLE FEATURES AND DOES NOT HAVE A "FIXED MAGAZINE" RATHER THAN A FIREARM THAT HAS ONE OF THOSE FEATURES AND "HAS THE CAPACITY TO ACCEPT A DETACHABLE MAGAZINE? SHOULD "FIXED MAGAZINE" BE DEFINED AS "AN AMMUNITION FEEDING DEVICE CONTAINED IN, OR PERMANENTLY ATTACHED TO, A FIREARM IN SUCH A MANNER THAT THE DEVICE CANNOT BE REMOVED WITHOUT DISASSEMBLY OF THE FIREARM ACTION"? SHOULD ANY PERSON WHO, FROM JANUARY 1, 2001, TO DECEMBER 31, 2013, LAWFULLY POSSESSED AN ASSAULT WEAPON THAT DOES NOT HAVE A FIXED MAGAZINE, AS DEFINED, BE REQUIRED TO REGISTER THE FIREARM BEFORE JULY 1, 2014, WITH THE DEPARTMENT OF JUSTICE, AS SPECIFIED? (More) SB 47 (Yee) Page 3 PURPOSE The purpose of this bill is to (1) amend the definition of assault weapon to refer to a firearm that has one of several specified military-style features and does not have a "fixed magazine" rather than a firearm that has one of those features and "has the capacity to accept a detachable magazine;" (2) define "fixed magazine" as "an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action"; (3) provide that any person who was eligible to register an assault weapon and lawfully possessed such a weapon prior to January 1, 2014, would be exempt from these penalties until July 1, 2014; (4) require that any person who from January 1, 2001, to December 31, 2013, lawfully possessed an assault weapon that does not have a fixed magazine, as defined, register the firearm before July 1, 2014, with the Department of Justice (DOJ), as specified; (5) provide that this registration be submitted online, as specified; (6) authorize DOJ to charge a fee of up to $15 per person but not to exceed the reasonable processing costs of the department for this registration; and (7) require DOJ to establish procedures for the purpose of carrying out this registration requirement and to specify that these procedures shall be exempt from the Administrative Procedure Act. Current law contains legislative findings and declarations that the proliferation and use of assault and .50 BMG rifles poses a threat to the health, safety, and security of all citizens of California. (Penal Code § 30505.) Current law states legislative intent to place restrictions on the use of assault weapons and .50 BMG rifles and to establish a registration and permit procedure for their lawful sale and possession. (Penal Code § 30505.) Current law defines "assault weapon" as one of certain specified rifles and pistols (Penal Code § 30510) or as: a semiautomatic, centerfire rifle that has the capacity (More) SB 47 (Yee) Page 4 to accept a detachable magazine and has at least one of the following: o a pistol grip that protrudes conspicuously beneath the action of the weapon; o a thumbhole stock; o a vertical handgrip; o a folding or telescoping stock; o a grenade launcher or flare launcher; o a flash suppressor; or, o a forward handgrip. a semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds; a semiautomatic, centerfire rifle that has an overall length of less than 30 inches; A semiautomatic pistol that has the capacity to accept a detachable magazine and has at least one of the following: o a threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer; o a second handgrip; o a shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning his or her hand, excepting a slide that encloses the barrel; or, o the capacity to accept a detachable magazine at some location outside of the pistol grip. a semiautomatic pistol with a fixed magazine that has the capacity to accept more than 10 rounds; a semiautomatic shotgun that has both of the following: o a folding or telescoping stock; and, o a pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip. a semiautomatic shotgun that has the ability to accept a detachable magazine; and (More) SB 47 (Yee) Page 5 any shotgun that has a revolving cylinder. (Penal Code § 30515.) Current law defines a "detachable magazine" as any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool. Ammunition feeding device includes any belted or linked ammunition, but does not include clips, en bloc clips, or stripper clips that load cartridges into the magazine. (11 Cal. Code of Regs. § 5469.) Current law provides that unlawful possession of an assault weapon is an alternate felony-misdemeanor and shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 (16 months, two or three years). Notwithstanding the above, a first violation of these provisions is punishable by a fine not exceeding $500 if the person was found in possession of no more than two firearms and certain specified conditions are met. (Penal Code § 30605.) Current law provides that any person who within California manufactures, imports into California, offers for sale, or who gives or lends any assault weapon with specified exceptions is guilty of a felony punishable by imprisonment in state prison for four, six, or eight years. (Penal Code § 30600.) Current law defines a ".50 BMG rifle and cartridge," as specified. (Penal Code §§ 30525, 30530.) Current law exempts the DOJ, law enforcement agencies, military forces, and other specified agencies from the prohibition against sales to, purchase by, importation of, or possession of assault weapons or .50 BMG rifles. (Penal Code § 30625.) Current law requires that any person who lawfully possesses an assault weapon, as specified, must register the firearm with DOJ, as specified. (Penal Code § 30900 et. seq.) (More) SB 47 (Yee) Page 6 This bill would amend the definition of assault weapon to refer to a firearm that has one of several specified military-style features and does not have a "fixed magazine" rather than a firearm with one of those features and the "capacity to accept a detachable magazine." This bill would define "fixed magazine" as "an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action." This bill would provide that, notwithstanding the new definition of assault weapon contained in this bill, any person who possessed an assault weapon prior to January 1, 2014, is exempt from punishment pursuant to Section 30605 until July 1, 2014, if all of the following are applicable: During the person's possession, the person was eligible to register that assault weapon pursuant to subdivision (c) of Section 30900. The person lawfully possessed that assault weapon on January 1, 2014. This bill would provide that any person who, from January 1, 2001, to December 31, 2013, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined in Section 30515, including those weapons with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, shall register the firearm before July 1, 2014, with the department pursuant to those procedures that the department may establish. Registrations shall be submitted electronically via the Internet utilizing a public-facing application made available by the department. The registration shall contain a description of the firearm that identifies it uniquely, including all identification marks, the date the firearm was acquired, the name and address of the individual from whom, or business from which, the firearm was acquired, as well as (More) SB 47 (Yee) Page 7 the registrant's full name, address, telephone number, date of birth, sex, height, weight, eye color, hair color, and California driver's license number or California identification card number. The department may charge a fee of up to fifteen dollars ($15) per person but not to exceed the reasonable processing costs of the department. The fee shall be paid by debit or credit card at the time that the electronic registration is submitted to the department. The fee shall be deposited in the Dealers' Record of Sale Special Account. The department shall establish procedures for the purpose of carrying out this subdivision. These procedures shall be exempt from the Administrative Procedure Act. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. (More) SB 47 (Yee) Page 8 In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who oppose the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unsettled. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS (More) SB 47 (Yee) Page 9 1. Need for This Bill According to the author: The California Legislature's duty to ensure the public safety of all Californians led to the passage of the Roberti-Roos Assault Weapons Control Act of 1989. In the Act, the Legislature determined and declared that "the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of the state." (Penal Code 30505) Considering certain firearms have a high rate of fire and the capability to continually reload, the state has a compelling state interest in the regulation of these dangerous anti-personnel assault weapons, many of which have been designed for and used in the theater of war. California has prohibited, with certain exceptions, the sale, purchase, importation, possession or transfer of assault weapons for nearly twenty-four years. This prohibition withstood court challenges and has evolved to counteract a concerted effort to subvert the intent of the law. Senate Bill 23 (Perata, Alpert, Bowen, Ortiz, Villaraigosa, of 1999) enacted a single-feature test to identify centerfire rifles with "the capacity to accept a detachable magazine" as assault weapons. (PEN 30515) However, the term "detachable magazine" was not defined in statute but was later defined in regulation as "any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being used. A bullet or ammunition cartridge is considered a tool." (CCR 11 § 5469(a).) This imprecise language in both statute and regulation inadvertently exempted any featured centerfire semi-automatic rifle with the capacity to accept a detachable magazine from the assault weapon classification if a "tool" is used to (More) SB 47 (Yee) Page 10 disengage the ammunition feeding device. Gun manufacturers have exploited this imprecise language by creating devices called a "bullet button" and "magazine lock," which require a "tool," either the tip of a bullet or a small affixed magnet, to easily detach the magazine without triggering the detachable magazine classification. These firearms, as sold in their current configuration, clearly subvert the legislature's intent when enacting Senate Bill 23 (Perata, Alpert, Bowen, Ortiz, Villaraigosa, of 1999), and has led to the proliferation of featured "California compliant" AR and AK assault weapon variants within the state. Senate Bill 47 closes the "bullet button" loophole by redefining an assault weapon in statute as "a semiautomatic, centerfire rifle that does not have a fixed magazine but has any one" of several specified features. This bill clarifies the identification of assault weapons by defining "fixed magazine" in statute and provides the Department of Justice the authority to bring existing regulations into conformity with the original intent of California's Assault Weapon Ban. Absent this bill, the assault weapon ban is effectively subverted and severely weakened. The proliferation of these types of firearms on our streets and in our neighborhoods will undo the two decades of progress California has made to rid our communities of the most deadly anti-personnel firearms developed by man. 2. Background - The Genesis and Evolution of the Assault Weapons Ban in California The origin of and subsequent modifications to the assault weapons ban in California are described by the federal Court of Appeal in the following extended excerpt from Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (as amend. Jan. 27, 2003). (More) SB 47 (Yee) Page 11 In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature passed the Roberti-Roos Assault Weapons Control Act ("the AWCA") in 1989. The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, California. An individual armed with an AK-47 semi-automatic weapon opened fire on the schoolyard, where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed, and one teacher and 29 children were wounded. The California Assembly met soon thereafter in an extraordinary session called for the purpose of enacting a response to the Stockton shooting. The legislation that followed, the AWCA, was the first legislative restriction on assault weapons in the nation, and was the model for a similar federal statute enacted in 1994. The AWCA renders it a felony offense to manufacture in California any of the semi-automatic weapons specified in the statute, or to possess, sell, transfer, or import into the state such weapons without a permit.1 The statute contains a grandfather clause that permits the ownership of assault weapons by individuals who lawfully purchased them before the statute's enactment, so long as the owners register the weapons with the state Department of Justice.2 The grandfather clause, however, imposes significant restrictions on the use of weapons that are registered pursuant to its provisions.3 Approximately forty models of firearms are listed in the statute as subject to its restrictions. The specified weapons include "civilian" models of military weapons that feature slightly less firepower than the military-issue versions, such as the Uzi, an Israeli-made military rifle; the AR-15, a semi-automatic version of the United States military's standard-issue machine gun, the M-16; and the AK-47, a Russian-designed and Chinese-produced military rifle. (More) SB 47 (Yee) Page 12 The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration in certain California Superior Courts that weapons identical to the listed firearms are also subject to the statutory restrictions.4 FOOTNOTES n1 Semiautomatic weapons differ from fully automatic machine guns in the following respects: Automatic weapons feed ammunition into the gun's chamber immediately after the firing of each bullet, so that the weapon will continue to reload and fire continuously so long as the trigger is depressed. Purchase and ownership of automatic weapons has been restricted by the federal government since the days of Al Capone and the machine gun violence associated with the Prohibition Era. In contrast to automatic weapons, only one bullet is fired when the user of a semi-automatic weapon depresses the trigger, but another is automatically reloaded into the gun's chamber. Thus, by squeezing the trigger repeatedly and rapidly, the user can release many rounds of ammunition in a brief period of time -- certainly many more than the user of a standard, manually-loaded weapon. Moreover, the semi-automatic weapons known as assault weapons contain large-capacity magazines, which require the user of the weapon to cease firing to reload relatively infrequently because the magazines contain so much ammunition. Consequently, users of such weapons can "spray-fire" multiple rounds of ammunition, with potentially devastating effects. n2 An individual who lawfully obtained an assault weapon prior to the enactment of the AWCA may avoid the requirement of registering it with the state if he renders the weapon permanently inoperable, (More) SB 47 (Yee) Page 13 relinquishes it to a state law enforcement agency, sells it to a licensed California firearms dealer, or removes it from the State of California. n3 A person who has registered an assault weapon may possess the weapon only at his own residence, his place of business, certain private and public clubs organized for the purpose of target shooting, certain fire-arms exhibitions approved by law enforcement agencies, or on specified public lands. Additionally, an assault weapon owner may transport his registered weapon to any of the above locations only so long as he complies with the methods of transportation prescribed in the statute. n4 Unless otherwise noted, citations to statutory provisions in this opinion refer to the sections of the AWCA as codified in the California Penal Code. The AWCA includes a provision that codifies the legislative findings and expresses the legislature's reasons for passing the law: The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in [the statute] based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports (More) SB 47 (Yee) Page 14 or recreational activities. In 1999, the legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semiautomatic weapons. The amended AWCA retains both the original list of models of restricted weapons, and the judicial declaration procedure by which models may be added to the list. The 1999 amendments to the AWCA statute add a third method of defining the class of restricted weapons: The amendments provide that a weapon constitutes a restricted assault weapon if it possesses certain generic characteristics listed in the statute.5 Examples of the types of weapons restricted by the revised AWCA include a "semiautomatic, center-fire rifle that has a fixed magazine with the capacity to accept more than 10 rounds," and a semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and also features a flash suppressor, a grenade launcher, or a flare launcher. The amended AWCA also restricts assault weapons equipped with "barrel shrouds," which protect the user's hands from the intense heat created by the rapid firing of the weapon, as well as semiautomatic weapons equipped with silencers. FOOTNOTES n5 The reason that the legislature defined the restricted assault weapons generically, by feature, is that after the enactment of the AWCA, gun manufacturers began to produce "copycat" weapons in order to evade the statute's restrictions. These weapons varied only slightly from the models listed in the act, but were different enough from those models that they evaded the law's restrictions. (Silveira v. Lockyer, 312 F.3d 1052, 1057-1059 (9th Cir. Cal. 2002) (citations omitted).) (More) SB 47 (Yee) Page 15 3. How This Bill Would Change the Existing Assault Weapons Ban As the Court of Appeal explained, in 1999, the Assault Weapons ban was amended to expand the definition of an assault weapon to include a definition by the generic characteristics, specifically, to include a "semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine" in addition to one of several specified characteristics, such as a grenade launcher or flash suppressor. (SB 23 (Perata) Stats. 1999, Ch. 129, § 7 et seq.) SB 23 was enacted in response to the marketing of so-called "copycat" weapons, firearms that were substantially similar to weapons on the prohibited list but differed in some insignificant way, perhaps only the name of the weapon, thereby defeating the intent of the ban. "SB 23 takes weapons that are made, then modified, named and re-named off the market. It fixes the loophole in current law that bans guns by name, not by capability, by providing a generic definition of the weapons." (Committee analysis of SB 23 (Perata), Assembly Public Safety Committee.) SB 23's generic definition of an assault weapon was intended to close the loophole in the law created by its definition of assault weapons as only those specified by make and model. This bill intends to address a new controversy that has developed around the definition of an assault weapon. This issue involves what constitutes a "detachable magazine." Regulations promulgated after the enactment of SB 23 define a detachable magazine as "any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool." (11 CFR § 5469(a).) In response to this definition, a new feature has been developed by firearms manufacturers to make military-style, high-powered, semi-automatic rifles "California compliant," the bullet button. Last year researchers at the nonprofit Violence Policy Center in Washington, D.C. released a paper describing the phenomenon of the bullet button and its effect on California's assault weapons ban: (More) SB 47 (Yee) Page 16 The "Bullet Button"-Assault Weapon Manufacturers' Gateway to the California Market Catalogs and websites from America's leading assault rifle manufacturers are full of newly designed "California compliant" assault weapons. Number one and two assault weapon manufacturers Bushmaster and DPMS, joined by ArmaLite, Colt, Sig Sauer, Smith & Wesson, and others are all introducing new rifles designed to circumvent California's assault weapons ban and are actively targeting the state in an effort to lift now-sagging sales of this class of weapon. They are accomplishing this with the addition of a minor design change to their military-style weapons made possible by a definitional loophole: the "bullet button." [Please see the Appendix beginning on page six for 2012 catalog copy featuring "California compliant" assault rifles utilizing a "bullet button" from leading assault weapon manufacturers.] California law bans semiautomatic rifles with the capacity to accept a detachable ammunition magazine and any one of six enumerated additional assault weapon characteristics (e.g., folding stock, flash suppressor, pistol grip, or other military-style features). High-capacity detachable ammunition magazines allow shooters to expel large amounts of ammunition quickly and have no sporting purpose.1 However, in California an ammunition magazine is not viewed as detachable if a "tool" is required to remove it from the weapon. The "bullet button" is a release button for the ammunition magazine that can be activated with the tip of a bullet. With the tip of the bullet replacing the use of a finger in activating the release, the button can be pushed and the detachable ammunition magazine removed and replaced in seconds. Compared to the release process for a standard (More) SB 47 (Yee) Page 17 detachable ammunition magazine it is a distinction without a difference. 1 Department of the Treasury Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles, April 1998. (Bullet Buttons, The Gun Industry's Attack on California's Assault Weapons Ban, Violence Policy Center, Washington D.C., May 2012. ) This bill would amend the definition of assault weapon to a firearm that has one of several specified military-style features and does not have a "fixed magazine," rather than a firearm that has one of those features and "has the capacity to accept a detachable magazine." It would also define, "fixed magazine" as "an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action." So, a semiautomatic rifle could have a detachable magazine, as long as it didn't also have any of the military-style features or it could have the military-style features as long as it had a fixed magazine. The purpose of this change is to clarify that equipping a weapon with a "bullet button" magazine release does not take that weapon outside the definition of an assault weapon. This bill would also require any person who, from January 1, 2001, to December 31, 2013, lawfully possessed an assault weapon that does not have a fixed magazine, as defined, including those weapons with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, in other words, those weapons with a "bullet button" magazine release, to register the firearm before July 1, 2014, with the department pursuant to those procedures that the department may establish. Because the bill would clarify that these are assault weapons, this provision is consistent with the existing law that requires assault weapons, lawfully possessed, to be registered with DOJ. 4. Constitutional Questions The constitutionality of California's assault weapons ban has (More) SB 47 (Yee) Page 18 been upheld by both the California Supreme Court (Kasler v. Lockyer, 23 Cal. 4th 472 (2000)), and the federal Court of Appeal. (Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (as amend. Jan. 27, 2003).) While the California Supreme Court rejected allegations that the law violated equal protection guarantees, the separation of powers, and failed to provide adequate notice of what was prohibited under the law, the Ninth Circuit Court of Appeal decision in Silveira was based largely on its interpretation of the Second Amendment right to keep and bear arms. The Second Amendment to the Constitution states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (United States Const. Amend. 2.) The Silveira Court based its ruling on the widely-held interpretation of the Second Amendment known as the "collective rights" view, that the right secured by the Second Amendment relates to firearm ownership only in the context of a "well regulated militia." (Silveira v. Lockyer, 312 F.3d 1052, 1086 (9th Cir. Cal. 2002).) The Silveira Court's interpretation of the meaning of the Second Amendment has since been squarely rejected by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Whether the Heller and McDonald cases mean that California's assault weapons ban violates the Second Amendment, and is therefore unconstitutional, is a different matter. In Heller, the Supreme Court rejected the "collective rights" view of the Second Amendment, and, instead endorsed the "individual rights" interpretation, that the Second Amendment protects the right of each citizen to firearm ownership. After adopting this reading of the Second Amendment, the Supreme Court held that federal law may not prevent citizens from owning a handgun in their home. (District of Columbia v. Heller, 554 U.S. 570, 683-684.) In the McDonald case, the Supreme Court extended this ruling to apply to laws passed by the 50 states. (McDonald v. City of Chicago, 130 S. Ct. 3020, 3050.) In deciding that the Second Amendment guaranteed the right to (More) SB 47 (Yee) Page 19 own a handgun in the home for self-defense, the Supreme Court stated that this ruling has its limitations: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26 FOOTNOTES n26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." It may be objected that if weapons that are most useful in military service--M-16 rifles and the (More) SB 47 (Yee) Page 20 like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. (District of Columbia v. Heller, 554 U.S. 570, 626-628 (U.S. 2008).) While the Supreme Court has held it is unconstitutional to prohibit citizens from owning a handgun in the home for self-defense, it has also stated that the right secured by the Second Amendment does not prohibited laws banning certain types of weapons for civilian use, specifically, "M-16 rifles and the like." Whether the specific prohibitions contained in California's existing assault weapons ban, or those proposed in this bill, are consistent with the right guaranteed under the Second Amendment was not specifically resolved by the decisions in Heller and McDonald. 5. Argument in Support The California Chapters of the Brady Campaign to Prevent Gun Violence states: California's assault weapons law prohibits semi-automatic centerfire rifles that have the capacity to accept a detachable magazine and are equipped with any one of the following features: a pistol grip, a thumbhole stock, a folding or telescoping stock, a grenade or flare launcher, a (More) SB 47 (Yee) Page 21 flash suppressor, or a forward pistol grip. These features are not found on sporting guns and are designed specifically to facilitate the killing of human beings in battle. The California Brady Campaign Chapters support banning military-style semi-automatic assault weapons. The rapid and accurate spray of bullets associated with assault weapons is a threat to police officers, families, and communities. As was shown by the tragedy at Sandy Hook School, an assault weapon escalates the lethality and number of victims in a rampage shooting incident. Unfortunately, firearm manufactures have found ways to enable the dangerous quick reloading that the California's assault weapons law sought to ban. For example, the "bullet button" is a feature that enables the firearm owner to use a bullet or other pointed object to quickly detach and replace the weapon's ammunition magazine. Because the use of a bullet or other "tool" is required to remove the magazine, the sale of bullet button-equipped guns has been allowed, even though the California assault weapons law prohibits weapons that have "the capacity to accept a detachable magazine." The California Brady Campaign Chapters support clarifying and strengthening California's assault weapons law as proposed by SB 47. The bill would revise the provisions to mean a weapon that "does not have a fixed magazine" but has any one of the features would be unlawful. The bill defines "fixed magazine" as an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action. SB 47 would also require any person who lawfully (More) SB 47 (Yee) Page 22 possessed before December 31, 2013, an assault weapon that does not have a fixed magazine to register the firearm before July 1, 2014, with the Department of Justice. This record would enable the Department of Justice to disarm the person through the Armed Prohibited Persons System program were the person to become prohibited from possessing firearms. (More) The gun industry has taken advantage of an imprecise definition to evade the intent of the law. This loophole must be closed and accordingly, the California Brady Campaign Chapters are in strong support of SB 47. 6. Argument in Opposition The California Association of Firearms Retailers states: Though recent shootings in other states have been alleged as demonstrating a need for SB 47, none of them would have been prevented or even curtailed by the provisions of this bill. The concerns expressed as the basis for SB 47 are theoretical and are not based on any proven impact that the proposed changes would have relative to preventing criminal and mentally unbalanced individuals from improperly using firearms. It would have no preventative impact on these persons and would not change their behavior. It is their behavior that is the real problem. The existing body of California law dealing with "assault weapons" is very comprehensive and deals adequately with its intended purpose. SB 47 addresses an alleged "problem" that in reality is very small, if it is a problem, and is not sufficient to warrant the proposed legislation. California is faced with a great many truly serious issues, such as its deteriorating business climate and the challenges created by AB 109 (realignment). The member businesses of CAFR provide substantial benefits to the state by generating jobs, commerce, tax revenues, and making many other important contributions. They strongly believe that the legislature should focus on the state's real problems, not minor or largely theoretical issues such as the (More) SB 47 (Yee) Page 24 subject matter of SB 47. 7. Sentencing Considerations Under current law, unlawful possession of an assault weapon is a wobbler; the felony sentence is punishable as a jail felony if the offender is otherwise eligible. Current law also provides that it is a felony to import, manufacture, sell, give or loan this kind of weapon in California. This bill would narrow the scope of these kinds of firearms that are legal in California, and in that way would expand the scope of these crimes. The bill provides a mechanism for persons who have these firearms now to continue to own them legally (registration), but future purchases and possession would be illegal and subject to this alternate misdemeanor-felony; and future sales and related procurement of these weapons would be a felony. Committee staff is unaware of any estimates of how the provisions of this bill would increase the number of prosecutions and convictions under this provision, or how it might affect the prison population. By way of reference, there currently are 17 inmates in prison for these crimes. ***************