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  ****