BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 3 7 4 SB 374 (Steinberg) Hearing date: April 16, 2013 Penal Code SM:dl ASSAULT WEAPONS HISTORY Source: Author Prior Legislation: AB 2728 (Klehs) - Chapter 793, Statutes of 2006 SB 238 (Perata) - Chapter 499, Statutes of 2003 SB 626 (Perata) - Chapter 937, Statutes of 2001 SB 23 (Perata) - Chapter. 129, Statutes of 1999 Roberti-Roos Assault Weapons Control Act of 1989 - Chapter 19, § 3, Stats. of 1989 Support: California Chapters of the Brady Campaign to Prevent Gun Violence; (Individual Chapters of the Brady Campaign from the following Counties and regions: Contra Costa County, Long Beach, Los Angeles, Marin, Oakland/Alameda, Orange, Pomona, Sacramento Valley, San Diego, San Fernando Valley, San Francisco, San Mateo, Santa Barbara, and Santa Clara; California Church Impact; California Federation of Teachers; City of Oakland; Clue California; Coalition Against Gun Violence; Friends Committee on Legislation; Moms Demand Action for Gun Sense in America; Women Against Gun Violence; Youth Alive!; Laguna Woods Democratic Club; National Council of Jewish Women; Violence Prevention Coalition; Neighbors United to Protect Our Communities; (More) SB 374 (Steinberg) Page 2 Doctors for America; Law Center to Prevent Gun Violence; Moms Demand Action for Gun Sense in America; Bend the Arc: Jewish Partnership for Justice; Courage Campaign; Christy Lynn Wilson Foundation; several individual letters Opposition:California Right to Carry; California Association of Firearms Retailers; California Sportsman's Lobby, Inc.; Crossroads of the West; National Rifle Association; National Shooting Sports Foundation; Outdoor Sportsmen's Coalition of California; Safari Club International; Shasta County Sheriff; California Federation of Federal Firearms Licensees; California Rifle and Pistol Association; letters and phone calls from several individuals KEY ISSUE SHOULD CALIFORNIA'S REGULATIONS CONCERNING "ASSAULT WEAPONS" BE TIGHTENED, AS SPECIFIED? PURPOSE The purpose of this bill is to tighten California's regulation of "assault weapons," as follows: (1) amend the definition of what rifles would be considered an assault weapon to specify "a semiautomatic, rimfire or centerfire rifle that does not have a fixed magazine with the capacity to accept 10 rounds or fewer, or a semiautomatic, centerfire rifle that has an overall length of less than 30 inches;" (2) define a "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) define a "detachable magazine" as "an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action;"(4) require that a person who, between January 1, 2001, and prior to January 1, 2014, lawfully possessed an (More) SB 374 (Steinberg) Page 3 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, register the firearm by July 1, 2014, with the Department of Justice as specified; and (5) enact provisions concerning requirements for a Firearm Ownership Record, as specified. 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 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: (More) SB 374 (Steinberg) Page 4 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 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 (More) SB 374 (Steinberg) Page 5 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 and 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.) This bill would require that on and after July 1, 2014, a Firearm Ownership Record shall be submitted by prepaid mail or delivered in person to the Department of Justice for every firearm an individual owns or possesses. The following firearms would be exempt from this requirement: Handguns purchased from a licensed firearms dealer and documented by a Dealers' Record of Sale (DROS) transaction on and after January 1, 1991. Rifles without detachable magazines and shotguns purchased prior to January 1, 2014. Assault weapons registered with the department, as specified. Firearms for which a Firearm Ownership Record has been previously filed by the current owner. (More) SB 374 (Steinberg) Page 6 This bill authorizes DOJ to charge a fee in an amount sufficient to reimburse the department for the reasonable costs of maintaining the Firearm Ownership Record program, but in no case more than $19 per transaction to process the Firearm Ownership Record. After the department establishes the fee amount, the department may adjust the fee amount annually as necessary to cover the reasonable costs of administering the program. The fees shall be deposited into the Dealers' Record of Sale Special Account. This bill amends the definition of an assault weapon as it pertains to rifles only. The new definition would be that a rifle is an assault weapon if it is a: A semiautomatic, rimfire or centerfire rifle that does not have a fixed magazine with the capacity to accept 10 rounds or fewer, or A semiautomatic, centerfire rifle that has an overall length of less than 30 inches. This bill defines a "detachable magazine" as "an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action." This bill defines a "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 provides that a person who, between January 1, 2001, and prior to January 1, 2014, lawfully possessed an assault weapon that does not have a fixed magazine, as defined, and 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 by July 1, 2014, with the department pursuant to procedures determined by the department. This bill provides that the department may charge a fee for (More) SB 374 (Steinberg) Page 7 registration of up to $20 per person but not to exceed the actual processing costs of the department. After the department establishes fees sufficient to reimburse the department for processing costs, fees charged shall increase at a rate not to exceed the department's actual processing costs. The fees shall be deposited into the Dealers' Record of Sale Special Account. 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. 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 (More) SB 374 (Steinberg) Page 8 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 1. Need for This Bill According to the author: The Sandy Hook Elementary School shooting is only one (More) SB 374 (Steinberg) Page 9 of many tragedies depicting the devastating lethality of military-style, rapid-rate-of-fire weapons. In July of 2012, twelve people were killed and 58 others were injured within a few minutes of an assailant entering a movie theater in Aurora, Colorado. That shooter was armed with multiple assault rifles and high capacity magazines able to hold up to 100 rounds. In July of 2011, a shooter armed with a Ruger Mini-14 and a Glock 34 pistol shot, killed 69 people and wounded 110 others at a children's summer camp in Norway. Both of the weapons used in Norway currently are legal in California. The list of these shootings goes on and on and the common characteristic of the firearms used in these mass shootings is the ability to detach a magazine and rapidly reload. That is why I introduced SB 374 which will prohibit the future sale, purchase, manufacture, importation, or transfer in California of semi-automatic rifles that can accept detachable magazines. Rifles with detachable magazines have a virtually unlimited capacity to kill. It is this specific feature that this bill targets: the ability to shoot unchecked semiautomatic gunfire. By focusing on the function of these weapons and not just their form this bill is aimed at the commercialization of mass killing machines, not the rights of sporting gun and hunting enthusiasts. Specifically, SB 374 will amend the current definition of illegal "assault weapon" to include a semiautomatic, rimfire, or centerfire rifle that does not have a fixed magazine with the capacity to accept ten or fewer rounds. In addition, SB 374 requires current gun owners to submit a Firearm Ownership Record for handguns purchased prior to 1991 and rifles with a detachable magazine purchased prior to January 1, 2014. (More) SB 374 (Steinberg) Page 10 California has been a leader in regulating firearms and banning military style weapons since 1989. But, even these laws have loopholes and gaps that the gun manufacturers have exploited. SB 374 and the other seven bills in the LIFE Act (Life-saving Intelligent Firearms Enforcement) Act - are merely updating California's statutes to stop the work-arounds that manufacturers have figured out. In 1989, California passed the first statewide law in the nation designed to ban assault weapons. Soon after its passage, however, the firearms industry made minor cosmetic changes to many banned assault weapons evading the intent of the law and allowing their continued sale. In 1999, California moved to update the law to address the industry's actions again. And now manufactures have done it again. They have figured out how to make a long gun into a rapid reload, military-style weapon by just the push of a button. Well, I say enough. We can't trust manufacturers to follow the intent of the law so we will change the law to require fixed magazines on all long guns so manufacturers cannot create a work around that guts the intent of California's laws. 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). In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature (More) SB 374 (Steinberg) Page 11 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. The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration in certain (More) SB 374 (Steinberg) Page 12 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, relinquishes it to a state law enforcement agency, (More) SB 374 (Steinberg) Page 13 sells it to a licensed California firearms dealer, or removes it from the State of California. n3 A person who has registered an assault weapon may possess the weapon only at his own residence, his place of business, certain private and public clubs organized for the purpose of target shooting, certain fire-arms exhibitions approved by law enforcement agencies, or on specified public lands. Additionally, an assault weapon owner may transport his registered weapon to any of the above locations only so long as he complies with the methods of transportation prescribed in the statute. n4 Unless otherwise noted, citations to statutory provisions in this opinion refer to the sections of the AWCA as codified in the California Penal Code. The AWCA includes a provision that codifies the legislative findings and expresses the legislature's reasons for passing the law: The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in [the statute] based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports (More) SB 374 (Steinberg) Page 14 or recreational activities. In 1999, the legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semiautomatic weapons. The amended AWCA retains both the original list of models of restricted weapons, and the judicial declaration procedure by which models may be added to the list. The 1999 amendments to the AWCA statute add a third method of defining the class of restricted weapons: The amendments provide that a weapon constitutes a restricted assault weapon if it possesses certain generic characteristics listed in the statute.5 Examples of the types of weapons restricted by the revised AWCA include a "semiautomatic, center-fire rifle that has a fixed magazine with the capacity to accept more than 10 rounds," and a semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and also features a flash suppressor, a grenade launcher, or a flare launcher. The amended AWCA also restricts assault weapons equipped with "barrel shrouds," which protect the user's hands from the intense heat created by the rapid firing of the weapon, as well as semiautomatic weapons equipped with silencers. FOOTNOTES n5 The reason that the legislature defined the restricted assault weapons generically, by feature, is that after the enactment of the AWCA, gun manufacturers began to produce "copycat" weapons in order to evade the statute's restrictions. These weapons varied only slightly from the models listed in the act, but were different enough from those models that they evaded the law's restrictions. (More) SB 374 (Steinberg) Page 15 (Silveira v. Lockyer, 312 F.3d 1052, 1057-1059 (9th Cir. Cal. 2002) (citations omitted).) 3. How This Bill Would Change the Existing Assault Weapons Ban As the Court 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. 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. (More) SB 374 (Steinberg) Page 16 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: 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 (More) SB 374 (Steinberg) Page 17 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 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. ) One approach to this issue, that taken by SB 249 (Yee) last year and again in SB 47 (Yee) this year, would amend the statute to replace the language regarding detachable magazines to instead prohibit "A semiautomatic, centerfire rifle that does not have a fixed magazine but has any one of the existing six prohibited characteristics. SB 47 also 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." In other words, a semiautomatic rifle could have a detachable magazine, as long as it didn't also have any of the six prohibited features or it could have the prohibited features as long as it had a fixed magazine. This bill takes a different approach. This bill does away altogether with the six prohibited features in current law. The rationale for this is that a rifle outfitted with the features that make a gun look like a military-style weapon, e.g., pistol grip, flash suppressor, collapsible stock, etcetera, may be more dangerous than one that lacks these features, but these features may not pose the greatest public safety concern. Conversely, the lack of these features does not make a rifle less lethal than one that has them. Proponents argue the feature that makes one semi-automatic rifle capable of killing or wounding more (More) SB 374 (Steinberg) Page 18 people in a shorter amount of time than another is the capacity to rapidly reload large amounts of ammunition. For example, they point to when, in 2011, a man opened fire on teenagers at a summer youth camp in Norway, killing 69 and wounding another 110, using a high powered semi-automatic rifle, the .223 caliber Ruger Mini-14. That rifle had none of the features listed in California's definition of an assault weapon and it is a perfectly legal weapon in California; supporters of this measure submit that what made that weapon such an effective tool of mass murder is the fact that the killer was able to rapidly reload one magazine after another of ammunition. Under this bill, even a "featureless" semiautomatic rifle, like the Mini-14, would be required to have a fixed magazine, holding no more than 10 rounds of ammunition. This bill would not prohibit the possession of any firearm that is currently legally owned. This bill would require that owners of existing firearms, with several notable exceptions, file a Firearm Ownership Record with the Department of Justice by July 1, 2014. Exempted from that requirement would be: Handguns purchased from a licensed firearms dealer and documented by a Dealers' Record of Sale (DROS) transaction on and after January 1, 1991. Rifles without detachable magazines and shotguns purchased prior to January 1, 2014. Assault weapons registered with the department pursuant to Section 30900. Firearms for which a Firearm Ownership Record has been previously filed by the current owner. 4. Constitutional Questions The Constitutionality of California's assault weapons ban has 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 (More) SB 374 (Steinberg) Page 19 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 of 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 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 (More) SB 374 (Steinberg) Page 20 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 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 (More) SB 374 (Steinberg) Page 21 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).) Thus, while the Supreme Court has held it is unconstitutional to prohibit citizens from owning a handgun in the home for self-defense, it also has 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 resolved by the decisions in Heller and McDonald. 5. Argument in Support The California Chapters of the Brady Campaign to Prevent Gun Violence states: The California Legislature has struggled with an assault weapons ban since the Stockton school yard shootings in 1989. The Roberti-Roos Act was passed that year, but minor changes to the named assault weapons allowed the firearm industry to easily evade the intent of the law. The assault weapon law was expanded in 1991 and in 1999, the Legislature updated the law by banning weapons with detachable magazines and one or more military style features. However, once again the industry has been able to exploit a (More) SB 374 (Steinberg) Page 22 loophole in the regulations that allows for the continued sale and possession of fully functional assault weapons. Senate Bill 374 seeks to definitively close the loopholes in a manner that will prevent the firearm industry from continuing to market these lethal military style weapons in California. (More) . . . Mass shootings perpetrated by unbalanced individuals using assault weapons are reported all too often in the news. As was tragically demonstrated at Sandy Hook School, the ability to rapidly reload added enormously to the carnage. An exchangeable magazine can be reloaded in one second and is the key feature that enables the rapid rate of continuous fire that can kill many people very quickly. Requiring a fixed magazine on future sales or transfers of long guns would, over time, decrease the lethality in future mass shootings. . . . SB 374 will finally control this situation with a clear, simplified, and strengthened assault weapons law. Current owners of long guns with detachable magazines will be able to keep their weapons and law abiding hunters and sport shooters will be minimally impacted. Senate Bill 374 also requires the submission of a Firearm Ownership Record to the Department of Justice for rifles with a detachable magazine purchased before January 1, 2014 and handguns purchased prior to 1991. These records will significantly increase the data in the Armed Prohibited Persons System program and enhance public safety. The records would enable the Department of Justice to disarm potentially dangerous persons if they were to become prohibited from possessing firearms. Additionally, the records will assist law enforcement efforts to trace firearms and solve gun crime. . . . 6. Argument in Opposition Crossroads of the West Gun Shows states: By defining any semiautomatic rifle that can accept a detachable magazine, or that has a fixed magazine with (More) SB 374 (Steinberg) Page 24 a capacity to accept more than 10 rounds, to be an assault rifle, SB 374 would ban the future sale of many popular makes and models of both rimfire and centerfire rifles commonly used for hunting, target practice, competition, recreational shooting, firearms training, and other lawful purposes. These civilian firearms are rarely used in the commission of a crime. There is no justifiable reason to ban them. The bill would result in the loss of revenue for firearms dealers at the shows, a decline in the size of the shows, fewer lawful business transactions conducted by non-dealer vendors, and thus less sales tax income for the state of California. The real focus of the Legislature should be on the people who actually do commit crimes involving use or possession of firearms such as criminals, the mentally ill, and users of mind altering drugs and other substances. Unfortunately, such people will always be able to obtain the firearms SB 374 would ban, if they want them, in the underground market or from outside of California's borders. 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, but future purchases and SB 374 (Steinberg) Page 25 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. ***************