BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          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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