BILL ANALYSIS                                                                                                                                                                                                    







                      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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