BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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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;
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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
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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:
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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
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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.
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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
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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
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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
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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.
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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
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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
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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,
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sells it to a licensed California firearms dealer, or
removes it from the State of California.
n3 A person who has registered an assault weapon may
possess the weapon only at his own residence, his
place of business, certain private and public clubs
organized for the purpose of target shooting, certain
fire-arms exhibitions approved by law enforcement
agencies, or on specified public lands. Additionally,
an assault weapon owner may transport his registered
weapon to any of the above locations only so long as
he complies with the methods of transportation
prescribed in the statute.
n4 Unless otherwise noted, citations to statutory
provisions in this opinion refer to the sections of
the AWCA as codified in the California Penal Code.
The AWCA includes a provision that codifies the
legislative findings and expresses the legislature's
reasons for passing the law: The Legislature hereby
finds and declares that the proliferation and use of
assault weapons poses a threat to the health, safety,
and security of all citizens of this state. The
Legislature has restricted the assault weapons
specified in [the statute] based upon finding that
each firearm has such a high rate of fire and capacity
for firepower that its function as a legitimate sports
or recreational firearm is substantially outweighed by
the danger that it can be used to kill and injure
human beings. It is the intent of the Legislature in
enacting this chapter to place restrictions on the use
of assault weapons and to establish a registration and
permit procedure for their lawful sale and possession.
It is not, however, the intent of the Legislature by
this chapter to place restrictions on the use of those
weapons which are primarily designed and intended for
hunting, target practice, or other legitimate sports
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or recreational activities.
In 1999, the legislature amended the AWCA in order to
broaden its coverage and to render it more flexible in
response to technological developments in the
manufacture of semiautomatic weapons. The amended AWCA
retains both the original list of models of restricted
weapons, and the judicial declaration procedure by
which models may be added to the list. The 1999
amendments to the AWCA statute add a third method of
defining the class of restricted weapons: The
amendments provide that a weapon constitutes a
restricted assault weapon if it possesses certain
generic characteristics listed in the statute.5
Examples of the types of weapons restricted by the
revised AWCA include a "semiautomatic, center-fire
rifle that has a fixed magazine with the capacity to
accept more than 10 rounds," and a semiautomatic,
centerfire rifle that has the capacity to accept a
detachable magazine and also features a flash
suppressor, a grenade launcher, or a flare launcher.
The amended AWCA also restricts assault weapons
equipped with "barrel shrouds," which protect the
user's hands from the intense heat created by the
rapid firing of the weapon, as well as semiautomatic
weapons equipped with silencers.
FOOTNOTES
n5 The reason that the legislature defined the
restricted assault weapons generically, by feature, is
that after the enactment of the AWCA, gun
manufacturers began to produce "copycat" weapons in
order to evade the statute's restrictions. These
weapons varied only slightly from the models listed in
the act, but were different enough from those models
that they evaded the law's restrictions.
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(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.
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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
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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
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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
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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
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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
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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
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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.
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. . .
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
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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
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possession would be illegal and subject to this alternate
misdemeanor-felony; and future sales and related procurement of
these weapons would be a felony. Committee staff is unaware of
any estimates of how the provisions of this bill would increase
the number of prosecutions and convictions under this provision,
or how it might affect the prison population. By way of
reference, there currently are 17 inmates in prison for these
crimes.
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