BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1407|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: SB 1407
Author: De León (D), et al.
Amended: 5/11/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/19/16
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SUBJECT: Firearms: identifying information
SOURCE: Author
DIGEST: This bill requires (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.
ANALYSIS:
Existing law:
1) Requires licensed importers and licensed manufacturers to
SB 1407
Page 2
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).)
2) Makes it illegal, under the United States Undetectable
Firearms Act of 1988, 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 ounces 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).)
3) 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.)
4) 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 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.)
5) Allows the DOJ, 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
SB 1407
Page 3
obliterated. (Penal Code § 23910.)
6) 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.)
7) 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 Dealers' Record of
Sale (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.)
8) 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.)
9) 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.)
10)Requires firearms to be centrally registered at the time of
transfer or sale by way of transfer forms centrally compiled
by the DOJ. The DOJ is required to keep a registry from data
sent to DOJ indicating who owns what firearm by make, model,
SB 1407
Page 4
and serial number and the date thereof. (Penal Code §
11106(a) and (c).)
11)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.)
12)Allows the DOJ 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.)
13)Allows the DOJ to charge a fee sufficient to reimburse it
for each of the following but 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:
a) 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.
b) For the actual processing costs associated with the
submission of a DROS to the department.
SB 1407
Page 5
c) 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.
d) For the actual costs associated with the electronic or
telephonic transfer of information pursuant to Section
28215. (Penal Code § 28230.)
14)Requires the Attorney General to 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:
1) 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."
2) Requires, commencing July 1, 2018, any person who
manufactures or assembles a firearm to:
a) Apply to the DOJ for a unique serial number or other
mark of identification, as specified;
b) Engrave or permanently affix the unique serial number
or other mark to that firearm, as specified, within 10
days of manufacturing or assembling the firearm; and
SB 1407
Page 6
c) Notify the DOJ once the serial number or other mark is
affixed to the firearm, as specified.
3) 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:
a) Apply to the DOJ for a unique serial number or other
mark of identification, as specified;
b) Engrave or permanently affix the unique serial number
or other mark to that firearm, as specified, within 10
days of manufacturing or assembling the firearm; and,
c) Notify the DOJ once the serial number or other mark is
affixed to the firearm, as specified.
4) Specifies, prior to the DOJ providing the person with a
unique serial number or other mark, the person must:
a) Present proof the applicant is not prohibited by state
or federal law.
b) 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.
c) Provide a description of the firearm that he or she
owns or intends to manufacture or assemble, in a manner
prescribed by the department.
SB 1407
Page 7
d) Have a valid firearm safety certificate or handgun
safety certificate.
5) Prohibits the sale or transfer of ownership of a firearm
manufactured or assembled pursuant to the provisions of this
bill, but allows for the transfer, surrender, or sale of a
firearm to a law enforcement agency, as specified.
6) Exempts the following from the provisions of this bill:
a) A firearm that has a serial number assigned, as
specified.
b) A firearm made or assembled prior to December 16,
1968, that is not a handgun.
c) 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
registry.
d) An antique firearm and curio and relic, as specified.
7) 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 $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 $1,000, or by both that fine and imprisonment. Each
SB 1407
Page 8
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.
8) 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.
9) Requires DOJ to maintain and make available upon request
information concerning both of the following:
a) The number of serial numbers issued, as specified.
b) The number of arrests for violations of Section 29180.
10)Allows the DOJ to charge a fee for applications to
administer the costs of electronic tracking and would
authorize the DOJ to use the DROS account to cover actual
costs associated with this bill.
Comments
This bill requires 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:
Obtain a unique serial number or other mark from the DOJ prior
to making or assembling a firearm;
SB 1407
Page 9
Engrave or permanently affix the unique serial number or other
mark to the firearm within 10 days of making or assembling the
firearm; and,
Notify the DOJ 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 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, this bill
will help to close this loophole.
SB 1407
Page 10
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
One-time costs of $75,000 (Special Fund*) for the DOJ to
promulgate regulations.
One-time costs to the DOJ in the range of $2 million (Special
Fund*) for enhancements to various automation systems. Costs
include staffing, overtime, external consultants, and software
development. Ongoing costs for storage, updates and
maintenance are estimated to be in the hundreds of thousands
of dollars annually.
Start-up costs to the DOJ of $365,000 (Special Fund*) to
process and verify an estimated 15,000 applications to
register 30,000 firearms. Annual costs in the range of
$100,000 (Special Fund*) for ongoing administration of the
program to process an estimated 1,000 applications to register
2,000 firearms, verify required information, assign serial
numbers, and input data. The $25 fee per application would
cover start-up costs but would not sustain the ongoing costs
of the program (1,000 applications would only generate $25,000
in fee revenue).
Non-reimbursable local enforcement costs (Local Funds) offset
to a degree by fine revenue to the extent violations of the
new registration requirements occur.
Potential court-related costs (General Fund**) for new
misdemeanor filings.
SB 1407
Page 11
While the impact of this bill independently on local jails is
likely to be minor, the cumulative effect of expanded
misdemeanors could create General Fund cost pressure on
capital outlay, staffing, programming, the courts, and other
resources in the context of criminal justice realignment.
* DROS Account - Appropriations staff noted that the DROS
Account is structurally imbalanced, with an estimated year-end
fund balance of less than $1 million in FY 2016-17. As a
result, an appropriation from another fund source, potentially
the General Fund, would be required to support the activities
required by this bill.
** Trial Court Trust Fund
SUPPORT: (Verified 5/17/16)
California Academy of Family Physicians
California Police Chiefs Association
OPPOSITION: (Verified 5/17/16)
California Rifle and Pistol Association
Gun Owners of California
Firearms Policy Coalition
National Rifle Association of America
ARGUMENTS 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
SB 1407
Page 12
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 shootings involving
untraceable firearms will become a much heavier burden on law
enforcement, and the victims of gun violence, in the future.
ARGUMENTS 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.
SB 1407
Page 13
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 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,
SB 1407
Page 14
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 manufactured. 27 C.F.R. § 478.92. 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
SB 1407
Page 15
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.
Prepared by:Jessica Devencenzi / PUB. S. /
5/18/16 16:28:08
**** END ****