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 (More) SJR 1 (Wolk) Page 2 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.) (More) SJR 1 (Wolk) Page 3 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 (More) SJR 1 (Wolk) Page 4 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. (More) SJR 1 (Wolk) Page 5 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 (More) SJR 1 (Wolk) Page 6 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. (More) SJR 1 (Wolk) Page 7 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 (More) SJR 1 (Wolk) Page 8 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 (More) SJR 1 (Wolk) Page 9 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 (More) SJR 1 (Wolk) Page 10 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 (More) SJR 1 (Wolk) Page 11 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. (More) SJR 1 (Wolk) Page 12 (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 (More) SJR 1 (Wolk) Page 13 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 (More) SJR 1 (Wolk) Page 14 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 (More) SJR 1 (Wolk) Page 15 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. (More) 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 (More) SJR 1 (Wolk) Page 17 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. ***************