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
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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?
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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
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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
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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.)
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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
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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.
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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
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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
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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).
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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.
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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,
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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
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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).)
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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:
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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