BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1407 Hearing Date: April 19, 2016
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|Author: |De León |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Firearms: Identifying Information
HISTORY
Source: Author
Prior Legislation:SB 808 (De León) - 2013, vetoed
AB 809 (Feuer) - Chap. 745, Stats. of 2011
AB 302 (Beall) - Chap. 344, Stats. of 2010
AB 1810 (Feuer) - 2010, failed passage
on the Senate floor
AB 161 (Steinberg) - Chap. 754, Stats.
of 2003
AB 950 (Brulte) - Chap. 944, Stats. of
2001
AB 2188 (Scott) - Chap. 398, Stats. of
1998
Support: California Academy of Family Physicians; California
Police Chiefs Association
Opposition:California Rifle and Pistol Association; Gun Owners
of California; National Rifle Association of America
PURPOSE
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The purpose of this legislation is to require: (1) a person,
commencing July 1, 2018, to apply to and obtain from the
Department of Justice (DOJ) a unique serial number or other mark
of identification prior to manufacturing or assembling a
firearm, as specified; and (2) by January 1, 2019, any person
who, as of July 1, 2018, owns a firearm that does not bear a
serial number assigned to it to obtain a unique serial number or
other mark of identification prior to manufacturing or
assembling a firearm, as specified.
Existing federal law requires licensed importers and licensed
manufacturers to identify each firearm imported or manufactured
by using the serial number engraved or cast on the receiver or
frame of the weapon, in such manner as prescribed by the
Attorney General. (18 U.S.C. § 923(i).)
Under existing federal law, the United States Undetectable
Firearms Act of 1988 makes it illegal to manufacture, import,
sell, ship, deliver, possess, transfer, or receive any firearm
that is not as detectable by walk-through metal detection as a
security exemplar containing 3.7 oz of steel, or any firearm
with major components that do not generate an accurate image
before standard airport imaging technology. (18 U.S.C. §
922(p).)
Existing law prohibits a person, firm, or corporation licensed
to manufacture firearms pursuant to Chapter 44 (commencing with
Section 921) of Title 18 of the United States Code from
manufacturing firearms in California, unless the person, firm or
corporation is also licensed under California law. This
prohibition does not apply to a person licensed under federal
law, who manufactures less than 100 firearms a calendar year.
(Penal Code § 29010.)
Existing law makes it illegal to change, alter, remove, or
obliterate the name of the maker, model, manufacturer's number,
or other mark of identification on any pistol, revolver, or any
other firearm, without first having secured written permission
from the Department of Justice (DOJ) to make that change,
alteration, or removal. Anyone who is found to have violated
this section shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170. (Penal Code § 23900.)
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Existing law allows the Department of Justice, upon request, to
assign a distinguishing number or mark of identification to any
firearm whenever the firearm lacks a manufacturer's number or
other mark of identification, or whenever the manufacturer's
number or other mark of identification, or a distinguishing
number or mark assigned by the department has been destroyed or
obliterated. (Penal Code § 23910.)
Existing law makes it misdemeanor, with limited enumerated
exceptions, for any person to buy, receive, dispose of, sell,
offer to sell or have possession any pistol, revolver, or other
firearm that has had the name of the maker or model, or the
manufacturer's number or other mark of identification changed,
altered, removed, or obliterated. (Penal Code §§ 23920 and
23925.)
Existing law requires a person be at least 18 years of age to
purchase a rifle or shotgun. To purchase a handgun, a person
must be at least 21 years of age. As part of the Dealer Record
of Sales (DROS) process, the purchaser must present "clear
evidence of identity and age" which is defined as a valid,
non-expired California Driver's License or Identification Card
issued by the Department of Motor Vehicles. (Penal Code §§
27510 and 16400.)
Existing law requires purchasers to present a handgun safety
certificate prior to the submission of DROS information for a
handgun or provide the dealer with proof of exemption pursuant
to California Penal Code Section 31700. Beginning on January 1,
2015, this requirement was extended to all firearms. (Penal
Code § 26840.)
Existing law requires that firearms dealers obtain certain
identifying information from firearms purchasers and forward
that information, via electronic transfer to DOJ to perform a
background check on the purchaser to determine whether he or
she is prohibited from possessing a firearm. (Penal Code §§
28160-28220.)
Existing law requires firearms to be centrally registered at the
time of transfer or sale by way of transfer forms centrally
compiled by the Department of Justice. The Department of
Justice is required to keep a registry from data sent to DOJ
indicating who owns what firearm by make, model, and serial
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number and the date thereof. (Penal Code § 11106(a) and (c).)
Existing law requires that, upon receipt of the purchaser's
information, DOJ shall examine its records, as well as those
records that it is authorized to request from the State
Department of Mental Health pursuant to Section 8104 of the
Welfare and Institutions Code, in order to determine if the
purchaser is prohibited from purchasing a firearm because of a
prior felony conviction or because they had previously purchased
a handgun within the last 30 days, or because they had received
inpatient treatment for a mental health disorder, as specified.
(Penal Code § 28220.)
Existing law allows the Department of Justice to require the
dealer to charge each firearm purchaser a fee not to exceed $14,
except that the fee may be increased at a rate not to exceed any
increase in the California Consumer Price Index as compiled and
reported by the Department of Industrial Relations. This fee,
known as the DROS fee, shall be no more than is necessary to
fund specific codified costs. (Penal Code § 28225.)
Under existing law, the Department of Justice may charge a fee
sufficient to reimburse it for each of the following but not to
exceed fourteen dollars ($14), except that the fee may be
increased at a rate not to exceed any increase in the California
Consumer Price Index as compiled and reported by the Department
of Industrial Relations:
For the actual costs associated with the preparation,
sale, processing, and filing of forms or reports required
or utilized pursuant to any provision listed in subdivision
(a) of Section 16585.
For the actual processing costs associated with the
submission of a Dealers' Record of Sale to the department.
For the actual costs associated with the preparation,
sale, processing, and filing of reports utilized pursuant
to Sections 26905, 27565, or 28000, or paragraph (1) of
subdivision (a) of Section 27560.
For the actual costs associated with the electronic or
telephonic transfer of information pursuant to Section
28215.
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Any costs incurred by the Department of Justice to
implement this section shall be reimbursed from fees
collected and charged pursuant to this section. No fees
shall be charged to the dealer pursuant to Section 28225
for implementing this section. (Penal Code § 28230.)
Under existing law, the Attorney General shall establish and
maintain an online database to be known as the Prohibited Armed
Persons File. The purpose of the file is to cross-reference
persons who have ownership or possession of a firearm on or
after January 1, 1991, as indicated by a record in the
Consolidated Firearms Information System, and who, subsequent to
the date of that ownership or possession of a firearm, fall
within a class of persons who are prohibited from owning or
possessing a firearm. (Penal Code § 30000.)
This bill defines "manufacturing" or "assembling" a firearm as
"to fabricate or construct a firearm, or to fit together the
component parts of a firearm to construct a firearm."
This bill, commencing July 1, 2018, requires any person who
manufactures or assembles a firearm to:
Apply to the Department of Justice for a unique serial
number or other mark of identification, as specified;
Within ten days of manufacturing or assembling the
firearm, to engrave or permanently affix the unique serial
number or other mark to that firearm, as specified; and,
Notify the DOJ once the serial number or other mark is
affixed to the firearm, as specified.
This bill states that by January 1, 2019, any person who, as of
July 1, 2018, owns a firearm that does not bear a serial number,
as specified, must:
Apply to the Department of Justice for a unique serial
number or other mark of identification, as specified.
Within ten days of manufacturing or assembling the
firearm, to engrave or permanently affix the unique serial
number or other mark to that firearm, as specified; and,
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Notify the DOJ once the serial number or other mark is
affixed to the firearm, as specified.
This bill specifies, prior to the DOJ providing the person with
a unique serial number or other mark, the person must:
Present proof the applicant is not prohibited by state
or federal law.
Present proof of age and identity. The applicant must
be 18 years of age or older to obtain a unique serial
number or mark of identification for a firearm that is not
a handgun, and must be 21 years of age or older to obtain a
unique serial number or mark of identification for a
handgun.
Provide a description of the firearm that he or she owns
or intends to manufacture or assemble, in a manner
prescribed by the department.
Have a valid firearm safety certificate or handgun
safety certificate.
This bill prohibits the sale or transfer of ownership of a
firearm manufactured or assembled pursuant to the provisions of
this legislation, but allows for the transfer, surrender, or
sale of a firearm to a law enforcement agency, as specified.
This bill exempts the following from the provisions of this
legislation:
A firearm that has a serial number assigned, as
specified.
A firearm made or assembled prior to December 16, 1968,
that is not a handgun.
A firearm which was entered into the centralized
registry, as specified, prior to July 1, 2018, as being
owned by a specific individual or entity if that firearm
has assigned to it a distinguishing number or mark of
identification to that firearm by virtue of the department
accepting entry of that firearm into the centralized
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registry.
An antique firearm, as specified.
This bill provides if the firearm is a handgun, a violation of
this section is punishable by imprisonment in a county jail not
to exceed one year, or by a fine not to exceed one thousand
dollars ($1,000), or by both that fine and imprisonment. For
all other firearms, a violation of this section is punishable by
imprisonment in a county jail not to exceed six months, or by a
fine not to exceed one thousand dollars ($1,000), or by both
that fine and imprisonment. Each firearm found to be in
violation of this section constitutes a distinct and separate
offense. This section does not preclude prosecution under any
other law providing for a greater penalty.
This bill requires the DOJ to maintain electronic records of all
persons that receive a unique serial number or other mark, and
notify the DOJ that it has been engraved or affixed to the
firearm.
This bill requires DOJ to maintain and make available upon
request information concerning both of the following:
The number of serial numbers issued, as specified.
The number of arrests for violations of Section 29180.
This bill allows the DOJ to charge a fee for applications to
administer the costs of electronic tracking and would authorize
the DOJ to use the Dealer Record of Sales (DROS) account to
cover actual costs associated with this legislation.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
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overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
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dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Under the Gun Control Act of 1968, it is illegal for
an unlicensed person to make a firearm for sale or
distribution. However a loophole in the law allows
for the construction of firearms by unlicensed
individuals so long as the firearms are made for
personal use and not sold or transferred. These
homemade guns are assembled through the purchase of
unfinished receivers, or 80 percent completed lower
receivers. Unfinished receivers, the engine of a
firearm, are not technically considered firearms
because of their incomplete stage and thus do not
require a serial number or background check for
purchase. With an unfinished receiver, a firearm
parts kit, and basic drilling machinery, an individual
can assemble a fully functional firearm without being
subject to the requirements placed on all other
firearms transactions-no serialization or background
check on the owner.
This loophole poses an increasingly daunting challenge
for law enforcement. As reported in the Sac Bee
(December 19, 2015) "California black market surges
for 'ghost guns'," there is an emerging black market
for these homemade guns, or ghost guns, because they
allow criminals and other dangerous individuals to
circumvent background checks and other California
firearms laws, including the state's assault weapons
ban. Because these firearms are assembled privately
and do not produce a sales record, no one knows they
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exist until a crime is committed. Federal and state
officials have seized hundreds of these weapons in a
series of ongoing undercover operations.
Another telling example is the June 2013 shooting in
Santa Monica by John Zawahri, who killed five people
using a gun assembled at home. Although Zawahri was
denied a firearms purchase by the Department of
Justice because of mental illness concerns, he was
able to skirt the law by purchasing a lower receiver
online, which he modified to craft the AR-15 style
rifle that was used in the shooting. Similarly, just
law year, ghost guns were used in a murder-suicide in
Walnut Creek.
The development of technologies that make the
manufacture of weapons accessible to the general
public raises questions about whether homemade guns
are being made by gang members, felons, and other
prohibited individuals. Without specific measures that
address the dangers posed by these self-made guns,
criminals will exploit the technologies at the expense
of public safety-as is proving to be the case
throughout the state.
2.Recent Events
According to a July 15, 2013, briefing prepared by the Minority
Staff of the Committee on Energy and Commerce, United States
House of Representatives:
On June 7, 2013, John Zawahri, 23, killed five people and
injured several more during a shooting rampage that lasted
approximately 13 minutes in Santa Monica, California. He
first shot and killed his father, Samir Zawahri, and
brother, Christopher, at their home. He then pulled over
and carjacked Laurie Sisk, forcing her to drive at gunpoint
to Santa Monica College. Zawahri shot at numerous cars,
pedestrians, and a bus en route, killing the college's
groundskeeper, Carlos Franco, and his daughter, Marcela.
Upon arriving at the campus, he then fatally shot another
woman, Margarita Gomez. He then entered the school
library, where he attempted to kill several library patrons
who were hiding in a safe room. Police, who had been
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alerted to the shooting and to Zawahri's location by
numerous 911 calls, exchanged gunfire in the library with
the shooter and pronounced him dead at the scene.
According to authorities, Zawahri fired approximately 100
rounds in total.
Zawahri had a history of mental illness. In 2006, a
teacher at his high school discovered Zawahri researching
assault weapons online. School officials contacted the
police and he was subsequently admitted to the psychiatric
ward at the University of California, Los Angeles Medical
Center. Zawahri attempted to buy a weapon in 2011, but a
background check conducted by the California Department of
Justice found him ineligible and denied the purchase. The
reasons for this denial have not been publicly released.
Zawahri used a modified AR-15 rifle in the shooting and
also carried a .44-caliber handgun. He possessed more
than 1,300 rounds of ammunition. The AR-15 rifle is the
same type of gun used in the mass shootings that occurred
in Aurora, Colorado, and Newtown, Connecticut. The AR-15
firearm held 30 rounds. California state law bans the
sale of AR-15 rifles with a magazine capacity greater than
ten rounds. Authorities believe that Zawahri assembled
his AR-15 rifle using parts he bought in pieces from a
number of different sources, including an 80% completed
lower receiver. Police found a drill press at Zawahri's
home, a tool that can make holes in the lower receiver to
complete the weapon. (Citations Omitted.)
The manufacturing and selling of illegal guns continues to
be an issue in California:
Manufacturing and selling illegal guns -- including
so-called "ghost guns" -- is the most common type of
investigation the Sacramento Bureau of Alcohol Tobacco
and Firearms deals with.
"Ghost guns" are missing a serial number and have been
manufactured with parts likely bought online.
"In this office we find quite a few of them and we have
made a number of cases over the last few years of people
that are selling these firearms for profit, and I would
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expect that we continue to make those types of cases," said
ATF spokesman Graham Barlowe.
Last October, two brothers were indicted for illegally
manufacturing and selling guns in Sacramento. Agents seized
345 guns as part of that investigation.
Daniel Crowninshield, who is also known as "Dr. Death," was
also indicted last year for manufacturing unlicensed
firearms, using computer-controlled machines at a North
Sacramento metal shop.
In Elk Grove, machinist Richard Gray usually restores cars
at his shop, but said he has had people bring in parts
claiming they need a broken gun fixed.
"But (I) then started realizing that wasn't exactly what
they were doing. What they were really doing was trying to
create a gun that didn't have any serial numbers on it,"
Gray said.
Now, Gray said he won't accept any type of firearm.
"We just tell them straight up that we're not in that kind
of business."
He's a supporter for stricter legislation on assembling
guns, but thinks it'll make illegal gun manufacturers more
desperate.
"They're gonna go someplace else. They're gonna get the
parts and bring them in here by hook or crook," he said.
There are several websites dedicated to selling parts to
build any firearm.
"We do have cases ongoing at this time, and as I said, I
would expect that we'll have cases, we'll be opening cases
in the months and year following until, really until
there's a change in the way that we see this problem,"
Barlowe said.
(Dana Griffin, ATF: 'Ghost guns' a growing trend in Sacramento
area, August 6, 2015,
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http://www.kcra.com/news/atf-ghost-guns-a-growing-trend-in-sacram
ento-area/34586452.)
In 2016, the federal grand jury returned an indictment against
Craig Mason, of Auburn, charging him with unlawful dealing and
manufacturing firearms:
According to court documents, Mason and others
involved in the scheme sold the parts necessary to
assemble a firearm. Mason operated a workshop on his
property that he used to manufacture firearms by
converting AR-15-style blanks into lower receivers.
A "blank" is a metal casting that is not considered a
firearm by ATF. It is converted into a "lower
receiver" by using a drill press or automated machine
to create the precise shape and space necessary for
the lower receiver to accept the parts that will allow
the firing of a projectile. These parts (e.g., the
hammer, bolt or breechlock, and firing mechanism) are
the internal mechanical parts that combine with a
trigger, firing pin, and other parts to form a
functioning firearm. Once the blank is converted to a
lower receiver, it is considered firearm by statute,
even if there is no barrel, handle, or trigger, etc.,
and it is subject to regulation.
On April 23, 2013, Mason manufactured two AR-15-style
lower receivers for an ATF confidential informant.
Despite being told that the confidential informant had
been to prison and therefore prohibited from
possessing a firearm, Mason created the firearms and
sold his services to the confidential informant.
(https://www.atf.gov/news/pr/auburn-man-indicted-illegally-m
anufacturing-firearms.)
3. Effect of This Legislation
SB 1407 would require any person who manufactures or assembles a
firearm to first obtain a serial number from the DOJ and
demonstrate that he or she is not prohibited from owning
firearms. Specifically, any person who manufactures or
assembles a firearm will be required to:
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Obtain a unique serial number or other mark from the
Department of Justice
prior to making or assembling a firearm;
Within ten days of making or assembling to engrave or
permanently affix the unique serial number or other mark to
the firearm; and,
Notify the Department of Justice once the serial number
or other mark is affixed to the firearm.
Prior to the DOJ providing the person with a unique serial
number or other mark, the person must:
Present proof the applicant is not prohibited by state
or federal law.
Present proof of age and identity. The applicant must
be 18 years of age or older to obtain a unique serial
number or mark of identification for a firearm that is not
a handgun, and must be 21 years of age or older to obtain a
unique serial number or mark of identification for a
handgun.
Provide a description of the firearm that he or she owns
or intends to manufacture or assemble, in a manner
prescribed by the department.
Have a valid firearm safety certificate or handgun
safety certificate.
There are no provisions in existing law that prevent a person
from buying an 80% lower receiver<1> and then making it into a
fully functional firearm. Because 80% lower receivers are not
considered firearms, a person purchasing them does not have to
go through a federal firearms dealer, and does not have to
undergo a background check. According to the author, SB 1407
will help to close this loophole.
4. Senate Bill 808 Veto Message
In 2014, the Governor vetoed a virtually identical piece of
legislation, SB 808 (De León), stating:
---------------------------
<1> According to Tactical Machining, "An 80% Receiver is a
partially completed piece of material that requires special
tooling and skills to be completed and considered a firearm."
(http://www.tacticalmachining.com/80-lower-receiver.html.)
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I am returning Senate Bill 808 without my signature.
SB 808 would require individuals who build guns at home to
first obtain a serial number and register the weapon with
the Department of Justice.
I appreciate the author's concerns about gun violence, but
I can't see how adding a serial number to a homemade gun
would significantly advance public safety.
5. Argument in Support
According to the California Police Chiefs Association:
The California Police Chiefs Association supports Senate
Bill 1407, which would require a person who manufactures or
assembles a firearm, or owns a firearm that does not bear a
serial number, to apply to the Department of Justice for a
unique serial number or other identifying mark.
There are no provisions in existing law that prevent a
person from manufacturing or buying an 80% lower
receiver-the basis of a firearm-and then making it into a
fully functional firearm. Furthermore, the accessibility
of these parts have become increasingly easier to acquire
with the invention of 3D printers. Because 80% lower
receivers are not considered firearms, a person purchasing
them does not have to go through a federal firearms dealer,
and does not have to undergo a background check. This has
created a loophole that allows prohibited felons, gang
members, and mentally ill individuals to obtain firearms
against the intent of our laws.
California has some of the strictest firearm regulations in
the nation. The laws are meant to keep our neighborhoods
safer and aid law enforcements fight against gun violence,
while still protecting the rights of responsible gun
owners. Essential to each, in the ability to track and
verify the ownership of each firearm in the state. It is
detrimental to public safety and law enforcement's ability
to solve crimes if there are innumerable firearms in
circulation without serialization or registration. If we
do not begin to address this problem now, the number of
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shootings involving untraceable firearms will become a much
heavier burden on law enforcement, and the victims of gun
violence, in the future.
6. Argument in Opposition
According to the National Rifle Association:
SB 1407 would make it a crime under California law for an
individual to manufacture a firearm without first obtaining
California Department of Justice (DOJ) approval to do so
and subsequently engraving a DOJ-provided serial number on
the firearm. This legislation should be opposed because it
will effectively nullify the long-standing and
constitutionally protected activity of building one's own
firearms. Additionally, SB 1407 will promote the
destruction and devaluation of existing firearms without
any tangible public safety benefit.
First, precluding an individual from manufacturing a
firearm without first obtaining government approval
infringes on the longstanding American tradition of
manufacturing a personal firearm. From prior to the
Revolution to the Civil War most Americans were intimately
involved in constructing and designing their own firearms.
(See Peter Jensen-Haxel,3D Printers, Obsolete Firearm
Supply Controls, and the Right to Build Self-Defense
Weapons Under Heller, 42 Golden Gate U. L. Rev. 447, 477-78
(2012).) Even though this involvement faded somewhat in
other parts of the country with the rise of
nineteenth-century industrialization, it remained a
fundamental part of Californian identity well into the
twentieth-century, as many in the unpopulated frontier of
the American West continued to manufacture their own
firearms. (Lawrence P. Shelton, California Gunsmiths
1846-1900, 5 (1977).) This tradition continues to this
day, with many Californians manufacturing their own
firearms without seeking government permission to do so.
As the U.S. Supreme Court has made clear, the Second
Amendment protects the "ancient" and "natural" right to
keep and bear arms. (District of Columbia v. Heller, 554
U.S. 570, 599 (2008).) The Court went to great lengths to
explain that the scope of that right is defined by the
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public's understanding of the Second Amendment at the time
of the founding. (Id. at 605.) Accordingly, given this
unobstructed and long-standing tradition of personally
manufacturing firearms stretching from the Revolutionary
War to the present, SB 1407's requirement that individuals
receive government approval to manufacture their personal
firearms violates the Second Amendment.
Moreover, the restrictions imposed by this legislation are
wholly unwarranted. State and federal laws already
prohibit people from possessing dangerous firearms. For
example, it is already illegal for any member of the
general public to make or possess an assault weapon. (See
Cal. Penal Code §§ 30600 and 30605.) Similarly, the
manufacture and possession of machineguns, short-barreled
shotguns and short-barreled rifles are highly regulated
under state and federal and law. (26 U.S.C. § 5861; Cal.
Penal Code §§ 32625, 33210.) And potentially dangerous
people convicted of felony offenses, subject to a
restraining order, or adjudicated mentally defective,
already may not possess firearms. (18 U.S.C. § 922(g); Cal.
Penal Code §§ 29800, 29825; Cal. Welf. & Inst. Code §
8103.) Because it is already a crime for people to possess
these dangerous firearms, and for potentially dangerous
people to possess any firearms, it is highly unlikely that
SB 1407 will do anything of use to keep potentially
dangerous weapons out of the hands of those who shouldn't
have them. Thus, SB 1407 will only serve to waste scarce
law enforcement resources by creating additional red-tape
to regulate the activities of responsible firearm owners.
Make no mistake, SB 1407 will effectively end the practice
of personally manufacturing firearms in California. Section
5 of this bill requires that each person, within one day of
manufacturing or assembling a firearm, affix a unique
serial number provided by DOJ, and that the number be
engraved in a manner that meets or exceeds the requirements
imposed on federally licensed firearms manufactures. The
problem is the federal requirements, designed for companies
that are in the business of manufacturing firearms for
national distribution, are extensive. A manufacture must
stamp, at a minimum depth of .003 inch, the firearm's
serial number, model, and caliber, as well as the name of
the manufacturer, and the city and state where
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manufactured. 27 C.F.R. § 478.92.[1] Needless to say,
precisely engraving all this information requires highly
sophisticated equipment that most Californian manufacturing
hobbyists do not have and cannot afford. Thus, SB 1407
will without a doubt price most Californians out of
personal firearms manufacturing.
Additionally, this legislation would cause firearm owners
to damage and/or significantly diminish the value of their
firearms. This bill etches out minor exceptions to its
requirements. One being the fact that it does not require
the markings for a "firearm made or assembled prior to
December 16, 1968, that is not a handgun." The year 1968
is significant because that is the year the federal Gun
Control Act was enacted. The Gun Control Act significantly
enhanced the 1958 Treasury Department regulations
promulgated under the Federal Firearms Act, which required
that firearms be stamped with a specific serial number.
Gun Control Act of 1968 § 923(i). While this law creates
an exception for non-handguns, it requires handguns made
prior to 1968 to be defaced by adding a serial number. Any
make defacing a firearm of that age will result in a
diminution of that firearm's value.
Finally, SB 1407 creates significant confusion over when
manufacturers must have their firearms engraved.
Specifically, this bill defines "firearm" to include the
unfinished frame or receiver of a weapon that can be
"readily converted" to the functional condition of a
finished frame or receiver. Accordingly, personal firearm
manufactures are required to obtain and affix a DOJ serial
number, at some undefined point in the middle of the
manufacturing process when the raw materials for a firearm
are "readily convertible" into a firearm. And to make
matters worse, SB 1407 never defines the term "readily
convertible," leaving it up to personal manufactures to
guess if they are far enough in the manufacturing process
to obtain a serial number and affix it to an unfinished
frame and receiver. If the manufacturer guesses wrong, he
or she is guilty of a crime.
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