BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session J
R
1
SJR 1 (Wolk)
As Introduced January 18, 2013
Hearing date: February 26, 2013
Uncodified
SM:dl
FEDERAL FIREARMS POLICY
HISTORY
Source: Author
Prior Legislation: AJR 45 (Feuer) - Res. Chapter 143, Statutes
of 2012
SJR 7 (Padilla) - Res. Chapter 63, Statutes of 2011
SJR 10 (DeLeon) - Res. Chapter 75, Statutes of 2012
AJR 56 (Frommer) - Res. Chapter 188, Statutes of
2004
SB 23 (Perata) - Chap. 129, Statutes of 1999
Roberti-Roos Assault Weapons Control Act of 1989 -
(Chapter 19, § 3, Stats. of 1989.)
Support: Brady Campaign to Prevent Gun Violence; Violence
Prevention Coalition of Orange County
Opposition:California Rifle and Pistol Association; National
Rifle Association
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KEY ISSUE
SHOULD A RESOLUTION BE ADOPTED URGING THE PRESIDENT AND THE
CONGRESS OF THE UNITED STATES TO PURSUE A COMPREHENSIVE FEDERAL
APPROACH TO REDUCING AND PREVENTING GUN VIOLENCE, AS SPECIFIED?
PURPOSE
The purpose of this bill is to adopt a resolution urging the
President and the Congress of the United States to pursue a
comprehensive federal approach to reducing and preventing gun
violence, as specified.
Current Federal Law
Current federal law - The federal assault weapons law (the
Violent Crime Control and Law Enforcement Act, H.R. 3355, Pub.L.
103-322,) became effective on September 13, 1994, and banned the
possession of "assault weapons" and "large capacity ammunition
feeding devices," defined as a magazine capable of holding more
than ten rounds of ammunition, manufactured after that date.
That law expired in 2004 and has not been reenacted.
Current California Law
Current California law regulates the manufacture, sale, and
possession of firearms and ammunition in the State of California
and requires that all transfers of firearms take place by or
through a licensed firearms dealer, except as specified. (Penal
Code § 16000, et seq.)
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.)
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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 an "assault weapon", as specified. (Penal
Code §§ 30510 and 30515.)
Current law defines a ".50 BMG rifle and cartridge", as
specified. (Penal Code §§ 30525 and 30530.)
Current law makes the manufacture, distribution, transportation,
importation, sale, gift or loan of an assault weapon or a .50
BMG rifle a criminal offense. (Penal Code § 30600.)
Current law makes the possession of assault weapons a criminal
offense, subject to certain exceptions. (Penal Code § 30605.)
Current law defines a "large-capacity magazine" as "any
ammunition feeding device with the capacity to accept more than
10 rounds, but shall not be construed to include any of the
following:
A feeding device that has been permanently altered so
that it cannot accommodate more than 10 rounds.
A .22 caliber tube ammunition feeding device.
A tubular magazine that is contained in a lever-action
firearm."
(Penal Code § 16740.)
Current law provides that, except as specified, commencing
January 1, 2000, any person in this state who manufactures or
causes to be manufactured, imports into the state, keeps for
sale, or offers or exposes for sale, or who gives, or lends, any
large-capacity magazine is punishable by imprisonment in a
county jail not exceeding one year or in the state prison for 16
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months, two or three years. (Penal Code § 32310.)
Current law provides that, upon a showing that good cause
exists, the Department of Justice may issue permits for the
possession, transportation, or sale between a licensed firearms
dealer and an out-of-state client, of large-capacity magazines.
(Penal Code § 32315.)
Current law provides that, except as specified, any
large-capacity magazine is a nuisance and is subject to an
injunction against its possession, manufacture or sale, and is
subject to confiscation and summary destruction. (Penal Code §
32390.)
This bill would make the following findings and declarations:
WHEREAS, The Sandy Hook Elementary School mass shooting in
Newtown, Connecticut, which resulted in the death of 20 children
and 6 adults, demonstrated the need for stronger laws to prevent
gun violence; and
WHEREAS, Numerous factors contribute to the occurrence of mass
shootings, including unregulated access to assault weapons and
assault magazines, insufficient background checks, and needed
improvements to our mental health system, among others; and
WHEREAS, Semiautomatic assault weapons designed with military
features allow for the rapid fire of potentially large numbers
of bullets, and are distinguishable from standard sporting
firearms by features such as the ability to accept a detachable
magazine, pistol grips, and folding or telescoping stocks; and
WHEREAS, Semiautomatic assault weapons are frequently used in
mass shootings, including the 1993 101 California Street
shooting in San Francisco that involved two TEC-9 semiautomatic
handguns, and the recent Aurora, Colorado, shooting that
involved an AR-15 style semiautomatic assault rifle with a
100-round ammunition drum; and
WHEREAS, The United States Supreme Court has affirmed once and
for all that Americans have a right to keep and bear arms.
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However, as conservative justice Antonin Scalia outlined, the
District of Columbia v. Heller decision does not prohibit laws
forbidding firearms in places such as schools or regulation of
unusually dangerous weapons, nor does it restrict laws
prohibiting felons and the mentally ill from carrying guns; and
WHEREAS, The National Firearms Act of 1934 regulates the
possession and transfer of fully automatic machine guns through
background checks, registration, and excise taxes, but
individual states are able to enact their own stronger gun
legislation and regulations which may or may not be similar to
other states; and
WHEREAS, Seven states, including California, have enacted laws
strictly regulating the possession, manufacture, and transfer of
assault weapons; and
WHEREAS, Because our borders are porous and only a small number
of states regulate assault weapons and high-capacity assault
magazines, states, like California, that take steps to protect
their communities from these weapons are vulnerable to criminals
who use those weapons without a comprehensive federal approach
to curb gun violence; and
WHEREAS, It is estimated that 40 percent of firearm transfers
are completed without a federal background check, including the
transfer of semiautomatic firearms from a private collection;
and
WHEREAS, California requires background checks for all firearms
sales and transfers through various means; and
WHEREAS, Nine categories of individuals are prohibited from
purchasing and possessing firearms, including the dangerously
mentally ill; and
WHEREAS, Mental health records are reported by the state and
imported into the National Instant Criminal Background Check
System, but currently many state and federal agencies are not
fully participating in this system; now, therefore, be it
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Resolved by the Senate and the Assembly of the State of
California, jointly, that a comprehensive federal approach to
reducing and preventing gun violence is needed to protect the
Second Amendment rights of law abiding citizens while ensuring
that our communities are safe from future mass shootings; and be
it further
Resolved, That the Legislature urges the President and the
Congress of the United States to promptly place under the scope
of the National Firearms Act generically defined assault
weapons, as now is the case with California, and high-capacity
assault magazines; and be it further
Resolved, That a universal background check through the National
Instant Criminal Background Check System should be required for
the transfer of all firearms; and be it further
Resolved, That the President of the United States should take
steps to ensure all states and applicable federal agencies are
reporting all necessary records to the National Instant Criminal
Background Check System; and be it further
Resolved, That the Secretary of the Senate transmit copies of
this resolution to the President and Vice President of the
United States, to the Speaker of the House of Representatives,
to the Majority Leader of the Senate, to each Senator and
Representative from California in the Congress of the United
States, and to the author for appropriate distribution.
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.
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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.
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
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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
1. Need for This Bill
According to the author:
Assault weapons are a class of semiautomatic firearms
designed with military features that allow those
weapons to spray large amounts of ammunition quickly
and accurately. These weapons are frequently used in
mass shootings, including the 1993 California Street
attack in San Francisco and the 2012 shooting in
Aurora Colorado. Furthermore, the recent tragedy at
Sandy Hook Elementary School in Newtown, Connecticut,
demonstrates the need for stricter controls on assault
weapons and high-capacity magazines.
Seven states, including California, have enacted laws
strictly regulating the making, possession, and
transfer of assault weapons. Without a comprehensive
federal law, states that take steps to protect their
communities from assault weapons remain vulnerable to
criminals who use those weapons. The National Firearms
Act provides a framework for Congress and the
President to pass new legislation regulating
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generically defined assault weapons and high capacity
magazines.
In addition, while California requires background
checks for all firearms sales and transfers it is
estimated that 40% of firearm transfers are completed
without a federal background check. The National
Instant Criminal Background Check System (NICS) which
compiles mental health records from states could be
more fully utilized by states and federal agencies
that are not currently participating and provide a
universal background check for all firearms transfers.
2. Current Federal Law Regarding Background Checks
The Brady Handgun Violence Prevention Act of 1993 (Pub. L. No.
103-159, 107 Stat.1536 (1993), codified as amended at 18 U.S.C.
§ 921 et seq.) requires a criminal history background check on
any person who attempts to purchase a firearm from a Federal
Firearms Licensee (FFL).
The Brady Act prohibits the transfer of a firearm to a person
who:
is under indictment for, or has been convicted of, a
crime punishable by imprisonment for more than 1 year
is a fugitive from justice
is an unlawful user of, or addicted to, a controlled
substance
has been adjudicated as a mental defective or committed
to a mental institution
is an illegal alien or has been admitted to the United
States under a nonimmigrant visa
was dishonorably discharged from the U.S. Armed Forces
has renounced U.S. citizenship
is subject to a court order restraining him or her from
harassing, stalking, or threatening an intimate partner or
child
has been convicted of a misdemeanor crime of domestic
violence
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is under age 18 for long guns or under age 21 for
handguns.
However, unlike under California law, there is no federal
requirement that all firearms transactions be conducted through
a licensed dealer. The result is that many firearms are sold in
the "secondary market" without any background check on the buyer
and no official record of the transaction.
The real numbers aren't known because the Bureau of
Alcohol, Tobacco, Firearms, and Explosives does not
track how many guns are sold online or how many of
them are used in crimes. But gun control advocates
suspect the market is large. Jon Lowy, director of the
legal action project of the Brady Center to Prevent
Gun Violence, says, "The last figure we have is 40
percent of gun sales take place without a background
check. That figure is probably low, because it dates
from before the advent of the thriving internet
market. Today the internet provides a mechanism to
facilitate countless private sales without a
background check, no questions asked."
(Mencimer, Want to Buy a Gun Without a Background Check?
Armslist Can Help, Mother Jones (February 1, 2013.)
3. Current Federal Law May Impede Firearms Trafficking
Prosecutions
Researchers studying the causes of gun violence and the most
effective ways to reduce it have found that deficiencies in
federal law make it more difficult to uncover and prosecute
illegal gun trafficking.
The existing federal legal framework on firearms
commerce actually impedes effective action. In
particular, prosecuting gun traffickers is remarkably
difficult. Since the telltale paperwork is not
available for unregulated transactions in the
secondary market, unlicensed dealers illegally engaged
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in the business of selling firearms can avoid
prosecution by claiming that they were selling only a
handful of firearms from their private collection.
Corrupt FFLs who illegally divert firearms face very
small penalties. The McClure-Volkmer Firearms Owners
Protection Act reduced most of these record-keeping
violations from felonies to misdemeanors in 1986.
Straw purchasers are also difficult to prosecute,
given various legal loopholes. As a result, US
attorneys typically prosecute gun traffickers on
charges unrelated to trafficking such as "felon in
possession" or drug trafficking.
The enforcement of laws against gun trafficking is
also hindered by the rather cumbersome procedure ATF
is forced to use to trace firearms. The limits of
current record-keeping procedures thwart routine
firearms tracing of secondhand firearms sold by
licensed dealers and prevent ATF from identifying
straw purchasers and scofflaw dealers who divert
secondhand firearms. Trace data also provide ATF
investigators with little support in examining the
robust trade in secondhand firearms on the secondary
market. Modest statutory changes in the system for
tracking firearm purchases and sales could make a big
difference in developing an effective supply-side
strategy. For example, a requirement for licensed
dealers to report serial numbers for all sales to ATF
would greatly facilitate the tracing process without
creating a central registry of gun owners.30 A
requirement that all secondary market transaction pass
through federally licensed dealers-with the same
screening and paperwork provisions as if the gun were
being sold by the dealer-would be useful in a variety
of ways, including in detecting gun traffickers.
However, both proposals would likely be vigorously
challenged as infringing on the rights of lawful gun
owners and as violating FOPA, which prohibits ATF from
establishing any national system of gun registration.
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(Pierce, Braga, Wintemute, Dolliver, New Approaches to
Understanding and Regulating Primary and Secondary Illegal
Firearms (January 2013) (Citations omitted.)
( https://www.ncjrs.gov/pdffiles1/nij/grants/241021.pdf )
4. The Federal Assault Weapons Ban Has Been Allowed to Expire
The Federal Assault Weapons Ban was passed as a portion of the
Violent Crime Control and Law Enforcement Act on September 13,
1994. The Act specified which weapons were classified as
assault weapons, which included nineteen separate models. The
Act defined features which classified specified semi-automatic
rifles, pistols, and shotguns as assault weapons. The Act was
limited to semi-automatic weapons only as fully automatic
weapons were addressed in earlier legislation passed in 1934 and
1986. The Act also banned large capacity ammunition feeding
devices, or high capacity magazines. The Act expired in 2004
and was not reenacted.
Like the assault weapons ban, whether citizens should be allowed
to own high-capacity magazines is one of the contested issues in
the debate over what constitutes reasonable gun regulation.
"Anyone who's thought seriously about armed
self-defense knows why honest Americans - private
citizens and police alike - choose magazines that hold
more than 10 rounds. Quite simply, they improve good
people's odds in defensive situations," Chris W. Cox,
the executive director of the National Rifle
Association's legislative institute wrote in a piece
posted online. He called the ban a "dismal failure."
The federal prohibition on high-capacity magazines and
assault weapons was spurred in part by the 1989 mass
killing in Stockton, Calif. Patrick Edward Purdy, a
mentally unbalanced drug addict, fired 110 rounds from
an AK-47 into a schoolyard, killing five children and
wounding 29 others and a teacher. Purdy used a
75-round drum magazine and a 35-round banana clip, one
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of four he carried.
(David S. Fallis, Data Indicate Drop in High-Capacity Magazines
During Federal Gun Ban, Washington Post, January 10, 2013,
http://www.washingtonpost.com/investigations/data-point-to-drop-i
n-high-capacity-magazines-during-federal-gun-ban/2013/01/10/d56d3
bb6-4b91-11e2-a6a6-aabac85e8036_story.html)
According the Washington Post, it conducted an analysis of data
taken from one jurisdiction, the State of Virginia, "During the
10-year federal ban on assault weapons, the percentage of
firearms equipped with high-capacity magazines seized by police
agencies in Virginia dropped, only to rise sharply once the
restrictions were lifted in 2004[.]"
* * * * * * * *
"I was skeptical that the ban would be effective, and
I was wrong," said Garen Wintemute, head of the
Violence Prevention Research Program at the University
of California at Davis School of Medicine. The
database analysis offers "about as clear an example as
we could ask for of evidence that the ban was
working."
(Fallis, supra)
5. Argument in Support
The Brady Campaign to Prevent Gun Violence states:
The California Chapters of the Brady Campaign to
Prevent Gun Violence is a grassroots organization
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working to reduce firearm violence. There are Brady
chapters throughout the state, many of whose members
have lost a loved one to gunfire. In furtherance of
our goal to reduce firearm crime, injury, and death in
our communities, the California Brady Campaign
Chapters strongly support SJR 1.
Senate Joint Resolution 1 urges the President and
Congress of the United States to develop a
comprehensive federal approach to reducing and
preventing gun violence, including requiring a
universal background check for the transfer of all
firearms. The measure would additionally urge the
President to take steps to ensure all states and
applicable federal agencies are reporting all
necessary records to the National Instant Criminal
Background Check System.
California has the strongest firearm laws in the
nation, including a background check for every gun
sale. The data shows that, between 1990 and 2010,
California reduced its firearm mortality rate by 52
percent - a 24 percentage point greater reduction that
the rest of the nation. Although California has made
real progress in reducing the rate of firearm injury
and death, in 2009, over 6,000 people were shot in
California and nearly 3,000 died. California is
impacted by weak federal gun laws and the illegal guns
coming into California from neighboring states.
Persons who cannot pass a background check in
California can purchase a gun through a private party
transfer in other states - with no questions asked.
The shooting of 20 first graders at Sandy Hook
Elementary School, the killing of seven people at a
Sikh temple in Wisconsin, and the shooting of seventy
people in a movie theatre in Colorado should be
unacceptable in a civilized society. The killing of
thirty-two people by gunfire every day in our country
demonstrates the need for strong national firearm
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laws.
The Brady Campaign to Prevent Gun Violence believes in
a comprehensive approach to reducing gun violence in
our nation, including both policy to keep guns out of
the hands of criminals and other dangerous people and
public health and safety programs. We support
universal background checks and bans on assault
weapons and large capacity magazines. Accordingly, we
support and appreciate your introduction of SJR 1.
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6. Argument in Opposition
The National Rifle Association states:
The National Rifle Association supported the
establishment of the National Criminal Instant
Background Check System (NICS) [1], and we support it
to this day. At its creation, we advocated that NICS
checks be accurate; fair; and truly instant. The
reason for this is that 99% of those who go through
NICS checks are law-abiding citizens, who are simply
trying to exercise their fundamental, individual Right
to Keep and Bear Arms.
Since 1986, those engaged in the business of selling
firearms for livelihood and profit have been required
to have a Federal Firearms License (FFL). All retail
sales of firearms currently require a NICS check, no
matter where they occur.
Regarding the issue of private firearms sales, it is
important to note that since 1968, it has been a
federal felony for any private person to sell, trade,
give, lend, rent or transfer a gun to a person he
either knows or reasonably should know is not legally
allowed to purchase or possess a firearm.
According to a recent General Accounting Office study,
as of 2011 23 states and the District of Columbia
submitted less than 100 mental health records to NICS;
17 states submitted less than ten mental health
records to NICS; and four states submitted no mental
health records to NICS.
A common misrepresentation is that criminals obtain
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firearms through sales at gun shows. A 1997 Bureau of
Justice Statistics survey of state prison inmates who
had used or possessed firearms in the course of their
crimes found that 79 percent acquired their firearms
from "street/illegal sources" or "friends or family."
Only 1.7 percent obtained firearms from anyone (dealer
or non-dealer) at a gun show or flea market.
In 2010, the FBI denied 72,659 NICS checks out of a
total of 14,409,616. But only 62 of these cases were
actually prosecuted, and only 13 resulted in a
conviction.
While the term "universal background checks" may sound
reasonable on its face, the details of what such a
system would entail reveal something quite different.
A mandate for truly "universal" background checks
would require every transfer, sale, purchase, trade,
gift, rental, or loan of a firearm between all private
individuals to be pre-approved by the federal
government. In other words, it would criminalize all
private firearms transfers, even between family
members or friends who have known each other all of
their lives.
According to a January 2013 report from the U.S.
Department of Justice's National Institute of Justice,
the effectiveness of "universal background checks"
depends on requiring gun registration. In other words,
the only way that the government could fully enforce
such a requirement would be to mandate the
registration of all firearms in private possession - a
requirement that has been prohibited by federal law
since 1986.
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