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Librarian
01-24-2008, 5:13 PM
Brief History of California Assault Weapon Law
or
“How the heck did we get here?”


This article is merely descriptive; it in no way means to suggest that the California Assault Weapon laws make sense, have been effective tools against crime, or should be continued. Reporting on what IS is not approval.

Part One of Three (due to posting length limitations)

While similar bills had been proposed in earlier sessions, one incident provided impetus to an ‘assault weapon’ bill: the Jan 17,1989 Patrick Purdy incident (http://en.wikipedia.org/wiki/Stockton_massacre) in Stockton, California.

ETA formerTexan found this (http://www.saf.org/LawReviews/KobayashiAndOlson.htm) law review article with much more detail - see "A. PASSAGE OF THE AWCA: A TIMELINE".

The legislature passed the Roberti-Roos Assault Weapons Control Act 1989, effective 1990. (aka “AWCA”)
12275. This chapter shall be known as the Roberti-Roos Assault Weapons Control Act of 1989.

12275.5. (a) 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 Section 12276 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 or recreational activities.
(Fascinating background here (http://www.hoboes.com/pub/Politics/United%20States/Trust%20the%20Government/Insight%20into%20Anti-Legislation) – e.g As finally comprised, the list had become an odd collection of firearms which range from the long out of production, to exorbitantly expensive, to the "evil" AK 47. As no specifically defined problem drove our efforts, such an odd collection should not be surprising.

More background here (http://sonic.net/sentinel/usa2.html) - Thanks to TKM, 3/9/08

The law created a list of firearms by name, called them ‘assault weapons’, and broadly required (1) that owners of these rifles register them and (2) none of them could be transferred in-state to private individuals. That list of weapons also included two significant ‘groups’ of rifles: “All AK series” and “Colt AR-15 series”. Those will appear again. See also Kasler reference, below.

The first big challenge to the law was FRESNO RIFLE AND PISTOL CLUB, INC. v. VAN DE KAMP, 965 F.2d 723 (http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/fresno_club_v_vandecamp.txt) (9th Cir. 1992).

The Ninth Circuit rejected the Second Amendment arguments and the AW law withstood the suit.
The plaintiffs also challenge the AWCA as a violation of the Second Amendment to the United States Constitution. They argue that the Fourteenth Amendment incorporates the Second such that it limits the actions of states in addition to those of Congress, and that the right to bear arms exists to protect the individual as well as to assist in the common defense through the use of a well- regulated militia.

The Supreme Court, however, has held that the Second Amendment constrains only the actions of Congress, not the states. See United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876) ("The second amendment declares that [the right to bear arms] shall not be infringed; but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government. . . . "); Presser v. Illinois, 116 U.S. 252, 264-65, 6 S.Ct. 580, 583-84, 29 L.Ed. 615 (1886) (same). We are therefore foreclosed from considering these arguments.

In 1999, Senate Bill 23 (SB-23 (http://www.leginfo.ca.gov/pub/99-00/bill/sen/sb_0001-0050/sb_23_bill_19990719_chaptered.html) ) added the ‘feature test’ language; again, the net was that (1) that owners of these newly-described rifles were required register them and (2) none of them could be transferred in-state to private individuals.

The next challenge was Kasler v. Lockyer (http://209.85.173.104/search?q=cache:1oHhY3-EVBsJ:caselaw.lp.findlaw.com/data2/californiastatecases/s069522.pdf+Kasler+v.+Lockyer,+2+P.3d+581+(Cal.+20 00)&hl=en&ct=clnk&cd=1&gl=us&lr=lang_en.), 2 P.3d 581 (Cal. 2000)
In the decision, the California Supreme Court wrote
The Court of Appeal reversed. It held the AWCA unconstitutional on the following grounds: (1) the section 12276 list of assault weapons violates principles of equal protection because it is irrationally underinclusive; (2) the add-on provision of section 12276.5 violates the separation of powers doctrine by delegating legislative power to the courts; and (3) the AWCA violates due process because it is unduly vague and fails to give advance warning of the conduct prohibited by it. We conclude the AWCA does not violate the equal protection or separation of powers doctrines and that the due process claim fails as a facial challenge to the AWCA. Accordingly, we reverse the judgment of the Court of Appeal.

(Also contains an interesting account of the California State Assembly meeting as a Committee of the Whole on February 13, 1989, well worth reading.)


Silveira v. Lockyer (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf?openelement), 312 F.3d 1052 (9th Cir. 2002), cert. denied, 124 S. Ct. 803 (2003) was another Second Amendment challenge, this time to the SB-23 amendments. Ninth Circuit wrote
In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state’s restrictions on the possession, use, and transfer of the semiautomatic weapons popularly known as “assault weapons.” Plaintiffs, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. The district court dismissed all of the plaintiffs’ claims. Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision. As to the Equal Protection claims, we conclude that there is no constitutional infirmity in the statute’s provisions regarding active peace officers. We find, however, no rational basis for the establishment of a statutory exception with respect to retired peace officers, and hold that the retired officers’ exception fails even the most deferential level of scrutiny under the Equal Protection Clause. Finally, we conclude that each of the three additional constitutional claims asserted by plaintiffs on appeal is without merit.

Continued in Part Two …

Librarian
01-24-2008, 5:19 PM
Brief History of California Assault Weapon Law
or
“How the heck did we get here?”


Part Two

Harrot v. County of Kings (http://209.85.173.104/search?q=cache:m-sBCe-7ubAJ:www.rkba.org/judicial/harrott-kings-county-casupct.pdf+Harrot+v.+County+of+Kings+(2001)+25+Ca l.4th&hl=en&ct=clnk&cd=3&gl=us&lr=lang_en) (2001) 25 Cal.4th 1138, 1163 looked like a kind of side issue

The question presented by this case, therefore, is whether the superior court had the authority to declare Mr. Harrott’s rifle an AK series assault weapon under section 12276, subdivisions (a)(1)(A) and (e) when it had not been identified as such in the Identification Guide published by the Attorney General pursuant to section 12276.5, subdivision (g), and had not been included in the list of assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h).

We conclude the answer to this question is no, for reasons well stated by the Court of Appeal in reversing the judgment of the trial court. “The legislative history of the amendments to the [AWCA] reveal strong concern that law enforcement personnel be clearly advised which firearms are ‘assault weapons’ within the meaning of the [AWCA] so as to prevent erroneous confiscation of legal weapons. The Legislature’s concern that such a list be current and completely inclusive …

Our decision today—upholding the Attorney General’s authority to identify series assault weapons pursuant to section 12276, subdivision (e), but holding that a trial court may not find a semiautomatic firearm a series assault weapon under section 12276, subdivision (e), unless the firearm has first been included in the list of series assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h) …

An AP article (http://www.freerepublic.com/forum/a3b3e08e840dc.htm) offered this summary
Supreme Court decision cripples assault weapons ban
By David Kravets
Associated Press Writer

SAN FRANCISCO (AP) -- The California Supreme Court has ruled that judges cannot declare firearms illegal under the state's assault-weapons ban law in a decision the dissenting chief justice said created a "loophole" in the 1989 act.

In a 4-2 vote Thursday that featured a blistering dissent by Chief Justice Ronald M. George, the high court ruled that a semiautomatic rifle is legal if it is not explicitly designated illegal under 1991 amendments to the act.

Justice Janice Rogers Brown, agreeing with arguments made in the case by the National Rifle Association, wrote that the 1991 provisions -- enacted to ban the proliferation of generic versions of outlawed weapons -- was too vague for gun owners to know which of the so-called copycat weapons of the Russian-made "AK series" were illegal.

Without explicitly listing each weapon, Brown wrote, "Ordinary law-abiding citizens could suddenly find themselves ... subject to prosecution."

The immediate fallout of Thursday's decision is that an untold number of copycat weapons to the AK series are now legal in California.

2006 brought us AB2728 (http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_2701-2750/ab_2728_bill_20060929_chaptered.html) .
AB 2728, Klehs Firearms.
Existing law provides a judicial procedure for declaring a firearm an assault weapon, as specified. This bill would repeal those provisions.

Existing law authorizes the Attorney General to declare a firearm an assault weapon. This bill would provide that authorization ends January 1, 2007.

Harrot tells us ‘series’ weapons MUST be added to the list maintained by the Attorney General. AB2728 says the AG is no longer able to add weapons to the list – it’s frozen at December 31, 2006. Those two events combined to open the door for “off list lowers”, as well as some other opportunities. For example, if an AR-type lower receiver (the actual serialized firearm) is not explicitly on the AG’s list, it is legal to buy and own in California – and to very carefully build a rifle that will not be a California ‘assault weapon’. See Bill Wiese’s Calguns AW FAQ (http://www.calguns.net/a_california_arak.htm)

See also this .pdf letter (http://www.hoffmang.com/firearms/Lockyer%20Letter%20-%20AB%202728.pdf) from Lockyer. (Thanks, Gene! 6/18/08)

Continued in Part Three …

Librarian
01-24-2008, 5:29 PM
Brief History of California Assault Weapon Law
or
“How the heck did we get here?”


Part Three

California Politics

It’s often the case that forum members from outside of California suggest it’s our own darn fault that we have the laws we do, and want to know why we don’t do anything about it.

From the cases in Parts One and Two, one can see that sometimes things are tried, and mostly fail in the courts.

So why do we elect these people who vote to enact the laws we have? Here’s some political data about California.

By far the majority of Democrats in California are, if not anti-gun, at least not pro-gun. Conversely, many/most Republicans are pro-gun or neutral.

The California Secretary of State has voter registration data here (http://www.sos.ca.gov/elections/sov/2006_general/reg.pdf)
including party affiliation, eligibles vs registered, and election turnout. It’s a grim picture, and deteriorating.

http://img85.imageshack.us/img85/3315/cavoterregbypartyfn1.jpg (http://imageshack.us)


http://img143.imageshack.us/img143/2382/cavoterturnoutzr7.jpg (http://imageshack.us)


Governors
George Deukmejian (R) 1983 – 1991
Pete Wilson (R) 1991 – 1999
Gray Davis (D) 1999 – 2003
Arnold Schwarzenegger (R?) 2003 –

Legislature: Party representation


Year Assembly Senate
Dem Rep Dem Rep
1961 47 33 29 11
1976 55 25 24 16
1980 48 32 23 17
1988 48 32 24 16
2006 48 31 25 15

With registered Democrats outnumbering registered Republicans, usually by about 8-10% of the registered voters, it’s no surprise that we get Democrat-dominated legislative houses.

Republicans can often hold off bad tax or budget bills, because those need 2/3 majority votes. Things like gun control bills need a simple majority, and usually pass on party lines. Occasionally a Republican Governor will veto a bad bill, but the Governors generally have not been very interested in gun control except as how it may help or hinder him from working with the Legislature to accomplish his political agenda.

Combine registration and voting data with the anti-gun stance of the three largest newspapers – the San Francisco Chronicle, the San Jose Mercury News and the Los Angeles Times – and all of the Bay Area and Los Angeles area television stations, and you should expect that pro-gun, or even merely accurate reporting, is uncommon. These media outlets regularly decline pro-gun advertising.

Piper
01-24-2008, 5:39 PM
Okay, so what your saying is resistance is futile. If you don't like it, leave California. Works for me.

Ford8N
01-24-2008, 6:08 PM
Interesting, thanks.

“The legislative history of the amendments to the [AWCA] reveal strong concern that law enforcement personnel be clearly advised which firearms are ‘assault weapons’ within the meaning of the [AWCA] so as to prevent erroneous confiscation of legal weapons. The Legislature’s concern that such a list be current and completely inclusive …"


So, in 2001 the courts wanted the LEO's out there to know what is an AW and what isn't an AW. WHEN IS THAT GOING TO HAPPEN???? I hear nothing but silence from the DOJ about OLL and lawful owners of OLL being falsely imprisoned and put thru hell.

yellowfin
01-24-2008, 6:50 PM
Exactly why aren't the offending legislators and judges removed from office and kicked out of the state?

DrjonesUSA
01-24-2008, 7:05 PM
Exactly why aren't the offending legislators and judges removed from office and kicked out of the state?


You! The logical one!

Out of this state!

chris
01-24-2008, 7:37 PM
Okay, so what your saying is resistance is futile. If you don't like it, leave California. Works for me.

that about sums it up. looks like socialism and control are the future of this state. it also looks like no matter how many letters, phone calls, e-mails and faxes i do. it's all in futility. they won't listen because their minds are allready made up for the future on this state and that is socialism.:mad:

boogak
01-24-2008, 8:04 PM
can we say, communism?

SemiAutoSam
01-24-2008, 8:08 PM
Not to be repetitive but as I have stated in the past.

How do you like Communism ? Getting everything out of it that you expected ?

IT looks like they didn't have a RINO icon to put next to Arnold's name.

can we say, communism?

Piper as it stands today yes pretty much those in power have the Matrix locked up.
resistance is futile
http://www.startrek.com/imageuploads/200509/ds9-401-locutus-at-wolf359-02/320x240.jpg

mblat
01-24-2008, 8:08 PM
We have 3.5 millions "other" than democrat or republicans? Who the hell are they?

EDIT: never mind. 7 + 5 + 3.5 = 15.5 that is probably entire eligible to vote state population. So we have over 3 millions independents.

Steyr_223
01-24-2008, 9:05 PM
Please note not all California Democrats, Anarchists or Communists are anti gun. I know many minority, gay, hippy, atheist and Green gun owners..

Gun owners should unite to retake our rights back in this state regardless of political party..The GOP in Cali takes the gun owners for granted just as the Dems take the Black/Latino vote for granted.

Times need to change.

MrTuffPaws
01-24-2008, 9:06 PM
Arnold Schwarzenegger (R?) 2003 –


You got that right.

MrTuffPaws
01-24-2008, 9:07 PM
We have 3.5 millions "other" than democrat or republicans? Who the hell are they?

The smart ones.

Librarian
01-24-2008, 9:25 PM
We have 3.5 millions "other" than democrat or republicans? Who the hell are they?

EDIT: never mind. 7 + 5 + 3.5 = 15.5 that is probably entire eligible to vote state population. So we have over 3 millions independents.
I thought the graphs were prettier, but the actual numbers of registered voters are

Democratic Republican Other Total
2000 7,134,601 5,485,492 3,087,214 15,707,307
2002 6,825,400 5,388,895 3,089,174 15,303,469
2003 6,718,111 5,429,256 3,236,059 15,383,526
2004 7,120,425 5,745,518 3,691,330 16,557,273
2005 6,785,188 5,524,609 3,581,685 15,891,482
2006 6,727,908 5,436,314 3,672,886 15,837,108

"Other" includes "Decline to State". Who knows what those folks are thinking?

Librarian
01-24-2008, 9:38 PM
Exactly why aren't the offending legislators and judges removed from office and kicked out of the state?Because the majority of voters like things the way they are, and cannot learn that something better is possible.

Example: if you watch TV, you may have noticed the ads for and against the Indian gaming propositions. I seem to be seeing about 10 an hour (haven't actually counted). The supporters and opponents understand that, to get even a tiny swing, they basically have to grind viewers' brains to mush.

Even if pro-gun supporters could afford to do that kind of advertising, generally the media won't accept those ad buys, and their on-air or in-print editorial stances and slanting of 'news' stories acts exactly as if they were donating time/space to antis.

Without the ability to persuade lots of people, we can't change enough votes to get different people elected.

mblat
01-24-2008, 9:43 PM
can we say, communism?

Dude. CA is VERY VERY VERY far from communism. Take it from the person who grew up in Soviet Union.

Because the majority of voters like things the way they are, and cannot learn that something better is possible.

Example: if you watch TV, you may have noticed the ads for and against the Indian gaming propositions. I seem to be seeing about 10 an hour (haven't actually counted). The supporters and opponents understand that, to get even a tiny swing, they basically have to grind viewers' brains to mush.

Even if pro-gun supporters could afford to do that kind of advertising, generally the media won't accept those ad buys, and their on-air or in-print editorial stances and slanting of 'news' stories acts exactly as if they were donating time/space to antis.

Without the ability to persuade lots of people, we can't change enough votes to get different people elected.

I think the problem is that most people simply don't care. Gun issues not high on anybody priorities. There are some people on THIS BOARD for Christ sake who are saying that they can vote anti-gun democrat "because guns are not the only issue I care about".

Now, I think most people are the same way - if we could get election based on gun rights along we would probably sweep the entire state. But that isn't happening. And until Republicans in this state will continue with this "right to life" candidates - they will continue to be permanent minority.

Librarian
01-24-2008, 11:17 PM
I think the problem is that most people simply don't care. Gun issues not high on anybody priorities.
Spot on, I think. People generally vote pocketbook issues. Not very many of California's 15 million or so registered voters think guns are an issue that puts food on or removes food from the table.

Noisy issues such as guns get 'appear to do something' attention; a few zealots get something introduced and are opposed by a few different zealots. While those (2%? I have no idea) people enjoy their argument, the rest of the people keep on keeping on.

1911su16b870
01-24-2008, 11:18 PM
Thanks Librarian for that post! Maybe this should be made a sticky?

DrjonesUSA
01-24-2008, 11:19 PM
Please note not all California Democrats, Anarchists or Communists are anti gun.


Oh, absolutely not!

In fact, they are very pro-gun.

The left loves guns so much, they want to have them all to themselves - they even want your guns for themselves.

Plus, the only way they can enforce their failed, morally bankrupt, unConstitutional policies and confiscatory taxation is at gunpoint.

That being said, I agree that all truly pro-gun people should unite, regardless of our other beliefs.

formerTexan
01-24-2008, 11:36 PM
Didn't Roberti-Roos and/or SB23 pass through the legislature with fairly slim margins as well?

As for the lopsided seat split in the state house, you can blame serious gerrymandering for a lot of that, and Arnold screwed his attempt at fixing that up by trying to push too much change too quickly. If he went for 1 or two of those initiatives instead of 4, the gerrymandering would've been history.

Librarian
01-24-2008, 11:59 PM
Didn't Roberti-Roos and/or SB23 pass through the legislature with fairly slim margins as well?

As for the lopsided seat split in the state house, you can blame serious gerrymandering for a lot of that, and Arnold screwed his attempt at fixing that up by trying to push too much change too quickly. If he went for 1 or two of those initiatives instead of 4, the gerrymandering would've been history.Can't get the R-R vote, but SB-23 was VOTES - ROLL CALL
MEASURE: SB 23
AUTHOR: Perata
TOPIC: Firearms: assault weapons.
DATE: 07/12/1999
LOCATION: SEN. FLOOR
MOTION: W/O REF. TO FILE SB23 Perata Concurrence
(AYES 26. NOES 13.) (PASS)

VOTES - ROLL CALL
MEASURE: SB 23
AUTHOR: Perata
TOPIC: Firearms: assault weapons.
DATE: 07/12/1999
LOCATION: ASM. FLOOR
MOTION: SB 23 THIRD READING W/O REFERENCE TO FILE BY MR. SPEAKER
(AYES 47. NOES 26.) (PASS)

They needed 21/40, got 26 in the Senate, needed 41/80 in the Assembly, got 47.

Full gory details here (http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=sb_23&sess=9900&house=B&author=perata).

formerTexan
01-25-2008, 1:43 AM
Ok, I found this page that said Roberti-Roos passed the Assembly by one vote:

http://www.saf.org/LawReviews/KobayashiAndOlson.htm

And it referenced a SF Chron article from '89. The above linked article is a pretty good primer on how/what Roberti-Roos came to be (by suppressing evidence showing that the weapons banned are not used often in crime), its effectiveness (or lack thereof), etc.

ETA: Also, from a link about Kasler in your first post, it said that the bill passed the Assembly 41-38, and then by 41 again after conferencing/changes.

CCWFacts
01-25-2008, 4:55 AM
Thanks for posting that Librarian. It's very important to understand these histories, in as much detail as possible.

Also, it's obvious that "gun culture" in this state is shrinking. That's a fundamental problem. People who have no personal experience and connection with guns have no personal stake, and are happy to go along with whatever the media or their politicians tell them. We need to change that with outreach. Take your non-shooting friends to the range. Teach them the facts. Show them how these things can be handled safely and responsibly, and how they can be life-savers.

bwiese
01-25-2008, 12:06 PM
Thanks Librarian, for the detailed accurate post.

In '98 there was a predecessor-to-SB23 attempt, while Pete Wilson was Gov. It passed both houses but was vetoed by Gov Wilson. I fancy myself as perhaps having an inkling of influence on it: large excerpts of my letter to the Governor during the "signing season" (and echoed in letters I supplied a dozen others to write) were quoted near-verbatim by his aide (Schnur? Steel?): in newspaper & radio. Somewhere deep in my garage is a clipped newspaper column with a quote from the Gov's aide, as well as my original letter.

bwiese
01-25-2008, 12:08 PM
An interesting take below by DOJ's Steve Helsley who was handed the original AW tar baby in '88. Favorable reference (to us) of "Oakland Police Sgt." was most certainly Iggy Chinn protecting his favorite guns.

http://www.hoboes.com/pub/Politics/United%20States/Trust%20the%20Government/Insight%20into%20Anti-Legislation


TO: Patrick Kenady Assistant Attorney General

FROM: S. C. Helsley, Assistant Director, Investigation & Enforcement Branch

Roberti-Roos Assault Weapons Control Act of 1989

On Feb. 5, 1991, DAG Paul Bishop asked me, on your behalf, to comment on the process that resulted in Roberti-Roos Act. It is important to point out that my recollection may not be entirely accurate concerning the sequence of events, but the overall flavor will be apparent.

In Oct. 1988, I was asked to comment on the assault rifle issue by the Director's Office. A copy of my memorandum is Attachment 1.

In Dec. 1988, 1 was directed to attend a meeting in Oakland with a number of law enforcement officers and prosecutors. Their objective was to reinvigorate the push to achieve some level of assault weapon control. As a result of my attendance, I became the Departmental lead for issues involving firearms technicalities. As a follow-up to the meeting, a survey instrument to assess the assault weapon problem was developed and distributed by DLE. The results were not compelling and many large agencies did not respond. A generic description of what was not an assault weapon was also developed and became the foundation for later "lists." The first Legislative draft was also prepared which included the notion of a commission which would decide twix good and bad assault weapons.

In early Jan. 1989, the Attorney General and his Executive Staff were briefed on the difference (or lack thereof) between assault and non-assault weapons. At the conclusion of that briefing, the Attorney General, to the obvious displeasure of some of his key advisors, said that he would not support assault weapon legislation unless hard data could be developed.

With the Purdy Stockton school yard shooting in Jan. 1989, the Attorney General immediately announced his support for the Roberti/Roos initiatives. In late January, a meeting was hosted by Attorney General Van de Kamp in Los Angeles that was attended by Sen. Roberti, Assemblyman Roos, Sheriffs Block and Craig, and a number of ranking law enforcement administrators.

A number of issues were addressed.
Senator Roberti described his overall strategy and emphasized the need to move quickly.

Four weapons (AK47, UZI, MAC, and the Street Sweeper) would the
focus of the legislation.

It was agreed that certain weapons probably had too large constituency to ever be worth the risk of including, i.e., Ruger Mini-14, M1 Carbine, M1 Garand, etc.

Information on assault weapons would not be sought from forensic
laboratories as it was unlikely to support the theses on which the legislation would be based (Attachment 2).

During the next three weeks which led up to one of Senator Roberti's key
strategic milestones -- the Assembly of the Whole on Feb. 13, 1989 - the following events occurred.

The original four-gun commission configuration of December was
discarded.

I directed the compilation of a list of all weapons which were not covered by the exclusionary language developed in December.

Roberti and Roos took different tacks with their bills.

The DOJ approach alternated between language which listed "good"
semiautomatic weapons and banned everything else, and a "bad" list which
"blessed" those weapons not on the bad list.

As we approached the final days of legislative activity on the two bills, we experienced what I would describe as a "feeding frenzy" as it became clear that the NRA was in retreat. The good gun/bad gun list was ever changing as modifications were made by legislative request, by "staffers" who wanted an emphasis on foreign firearms and through the personal efforts of an Oakland Police Department Sergeant. As late as Mar. 17th, our legislative staff was trying to get weapons like the HK PSG1 and the FN/FAL removed from the list.

As finally comprised, the list had become an odd collection of firearms which range from the long out of production, to exorbitantly expensive, to the "evil" AK47. As no specifically defined problem drove our efforts, such an odd collection should not be surprising.

The old adage of "if you don't know where you're going - you won't know when you get there" seems relevant to our efforts in support of the Roberti/Roos Act. The group for whom we were performing our staff support had different long-term objectives. The objectives ranged from control of a limited number of weapons to sweeping controls. Sen. Roberti clearly indicated that he saw his bill as a "first step." My function throughout the process was to generate lists of weapons to be banned or exempted. As these lists were produced, there was ongoing anxiety about how to describe the weapons in the legislation.

The "AK" is the best example. Our attempt to describe them had four distinct stages. They were:

All AVTOMAT KALASHNIKOV semi-automatic rifles of military style.

By model AKS, AKM, etc.

By manufacturer or importer NORINCO, POLY TECHNOLOGIES, etc., and

Finally by AVTOMAT KALASHINIKOV (AK) series


The reasoning which led to the final "series" description was based on four factors. They were:

Not all AK's were of "military style."

Given the time frame involved, we were not convinced that we
could determine all the manufacturers whose AK's has been imported.

The use of model numbers/names was impractical as wholesalers were advertising weapons with designations that were at odds with the manufacturers description.

Manufacturers emphasized the semi-automatic AK's lineage with the
military version. Advertisements also referred to "series."

Since the law took effect, AK 47's have been assembled in the United States with a whole new set of model-numbers (Attachment 3).

At least three other weapons have an equally confusing status. There are AR15 and FN/FAL type weapons that are now being built and sold with "after market" receivers and surplus parts. They are exactly the same as the weapons identified on the Roberti/Roos list - only the company name on the receiver is different. Given that the argument the Department made in the Fresno Court hearing was that the specific weapons on the list were the legislation's target and not the generic "series," it would seem that "aftermarket" AR15's and FN/FAL's must move to the "good gun" list.
Using the Fresno logic, how can any of the AK's be covered?

The third weapon is the SKS. When the list was developed, there were two distinct models - one with a fixed magazine and the other with a detachable magazine. The detachable magazine model is identified on the Roberti/Roos list. Since the law took effect, "after market" magazines have become available for the fixed magazine version which is a "middle ground" half detachable, half fixed magazine. The Roberti/Roos language does not define the difference between fixed and detachable magazines. It is important to note that a number of other weapons present equally vexing problems.

With the benefit of two years of perspective on our Roberti/Roos efforts, I have concluded that little could have been done to improve our precision. Some of the challenges we faced were:

No specifically defined problem.

Artificial distinctions were made between semi-automatic weapons. The AK47 was targeted but the Ruger Mini-14 was exempted. The two weapons are the same caliber, magazine capacity, size, etc.. Past legislation which focused on machine guns and submachine guns was successful because it dealt with an entire class of weapons. The Roberti/Roos Act attempts to make distinctions between weapons in the same class (semiautomatic).

Too many people were adding or subtracting weapons from the legislation.

Most if not all of the principal players in crafting the legislation had absolutely no knowledge of firearms.

Most of the weapons on the list are low production or long out of production items
that constitute absolutely no conceivable threat.

No data collection mechanism was built into the legislation to provide data for objective
decisions concerning possible future additions or deletions.

The ongoing diversity and inconsistency of legal opinions: for example, in May 1989 Deputy Legislative Counsel Thomas Heuer opined that the Norinco 56MS (an AK47 variant) which Purdy used was not covered by the bill (see Attachment 4). While we were crafting the legislative language, the foundational legal logic provided was that the AK/AR "series" approach was valid. This seems to have now been cast aside.

A lot of people worked very hard to make the Roberti/Roos Act successful. Those with some knowledge of firearms felt the task was an impossibility. Those with little or no knowledge of the subject were ever emboldened. As Montaingue said, "Nothing is so firmly believed as that which is least known." The more our staff has worked with the legislation the more confused they have become. How the average cop on the beat or "Joe "Sixpack" who owns one of the weapons will ever figure it all out escapes me.

There is no simple fix. Publication of a manual for public or law enforcement use will require that we reach some yet unreached conclusion about which weapons are covered.

We can effectively control all semi-automatic weapons or leave them all alone. What I don't think we can accomplish is proper implementation of a vague and ambiguous law.

CCWFacts
01-25-2008, 12:22 PM
We can effectively control all semi-automatic weapons or leave them all alone. What I don't think we can accomplish is proper implementation of a vague and ambiguous law.

That is the basic reality right there. The differences between an AR-15 and a Remington 7400 or Mini 14 are of form, not of function. What they are saying is that certain weapons are attractive to people with certain mental states or desires and they want to ban weapons that fit those states. And perhaps even more important, they want to ban whatever guns are most appealing to NRA members and people in the "gun culture". But that kind of goal is beyond legislation.

glockman19
01-25-2008, 12:27 PM
Librarian,

Thanks for the detailed accurate post.

bwiese,

Thanks for the DOJ's take.

Looks like even those in the gov. acknowledge the holes in the legislation. I was most amused at the statements; "Too many people were adding or subtracting weapons from the legislation." and "Most if not all of the principal players in crafting the legislation had absolutely no knowledge of firearms."

Just what we all want to hear people making decisions on a subject they know little or nothing about.

Librarian
01-25-2008, 1:37 PM
Ok, I found this page that said Roberti-Roos passed the Assembly by one vote:

http://www.saf.org/LawReviews/KobayashiAndOlson.htm


Very nice! Edited main post to include this one - thanks.

chris
01-25-2008, 1:51 PM
Please note not all California Democrats, Anarchists or Communists are anti gun. I know many minority, gay, hippy, atheist and Green gun owners..

Gun owners should unite to retake our rights back in this state regardless of political party..The GOP in Cali takes the gun owners for granted just as the Dems take the Black/Latino vote for granted.

Times need to change.

I agree with your post 100%. but many of them do not think we should have our AR's and AK's. i wish they would unite we would be unstoppable forever. but until then we must fight for those who choose to have someone else do it for them. hence we are in the minority and fight harder than anyone else.

bwiese
03-09-2008, 2:16 PM
Much of this also has to do with the increasing irrelevance of the Calif. Republican party whose numerous self-inflicted wounds (due to being lead by a small entrenched contingent of Orange county religionists) have made its stances repulsive to a wide swath of otherwise fairly conservative folks.

The R platform has become so repulsive to college-educated suburban educated middle-class & above homeowners that they are willing to PAY (thru higher taxes due to voting for Democrats) to stay away from it.

Piper
03-09-2008, 4:01 PM
In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state’s restrictions on the possession, use, and transfer of the semiautomatic weapons popularly known as “assault weapons.” Plaintiffs, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. The district court dismissed all of the plaintiffs’ claims. Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision. As to the Equal Protection claims, we conclude that there is no constitutional infirmity in the statute’s provisions regarding active peace officers. We find, however, no rational basis for the establishment of a statutory exception with respect to retired peace officers, and hold that the retired officers’ exception fails even the most deferential level of scrutiny under the Equal Protection Clause. Finally, we conclude that each of the three additional constitutional claims asserted by plaintiffs on appeal is without merit.

This is where Heller will give us some help and the 9th circuit gave us the hint to get the AWB repealed. Based on this statement, Heller could very easily topple most California gun laws when SCOTUS affirms that the 2A is an individual right.

Piper
03-09-2008, 4:07 PM
Much of this also has to do with the increasing irrelevance of the Calif. Republican party whose numerous self-inflicted wounds (due to being lead by a small entrenched contingent of Orange county religionists) have made its stances repulsive to a wide swath of otherwise fairly conservative folks.

The R platform has become so repulsive to college-educated suburban educated middle-class & above homeowners that they are willing to PAY (thru higher taxes due to voting for Democrats) to stay away from it.

What's up with you and religious people Bill ? Did someone dunk your head in a toilet as a kid and call it baptism ?

Anthonysmanifesto
03-09-2008, 9:42 PM
this is an easy to read history of the Assault Weapons ban in California.

it should be one of the first stops for calgunners, new and old.

much obliged...

FallingDown
03-09-2008, 9:53 PM
What's up with you and religious people Bill ? Did someone dunk your head in a toilet as a kid and call it baptism ?

He's probably just from Oregon or Wyoming ;)

Gator Monroe
03-09-2008, 10:00 PM
What's up with you and religious people Bill ? Did someone dunk your head in a toilet as a kid and call it baptism ?

+1 ( Shasta County 72 % Republican 2007-8 ...:rolleyes:

bwiese
03-09-2008, 10:07 PM
What's up with you and religious people Bill ? Did someone dunk your head in a toilet as a kid and call it baptism ?

No, nothing against them in person, just their hijacking of the Republican party management such that it's rendered R's unelectable in CA for statewide office or 'safe' districts.

We're just a few votes away from Dem majorities in Assy and and Senate due to this.

The ''prolife'/'profamily' keywords alienate thousands in swing disticts. In these districts, I think there's a fair chance I could get a conservative Republican elected with a bagful of dead babies and an AR15 faster than an "antichoice" Democrat passing out free welfare checks.

Even if the Rs abandon this stance it's gonna take several election cycles to cancel.

The only mitigating thing for R's is that the state's finances have been mangled so badly by the Demos some bite-back voting for Rs could happen.

ghideon
03-09-2008, 10:40 PM
I agree w/Bill. Prolife vs prochoice is even more polarizing than the 2A issues are. I sit in the middle of the political spectrum (at least I'd like to think so). So I end up voting "lesser of two evils" on what my key issue(s) is/are. For some it's the abortion issue. And for some, they'll immediately vote D instead of R (or R instead of D) based solely on that issue.

CCWFacts
03-09-2008, 10:49 PM
I agree with everything BW is saying about the Rs in this state.

However you feel about the issues, pro-life, pro-creationism-in-schools stances are NOT going to be viable among college-educated Californians. And that segment of the population is the segment that controls the urban centers of this state, aside from Fresno and Bakersfield and Orange County.

This state has plenty of non-religious conservatives in the urban and suburban areas who could vote R but are so repulsed by the R's current platform and alignment that they won't. Given a choice between pro-choice, pro-evolution fiscal idiots (Democrats) and anti-choice, pro-creation fiscally conservative people (Rs), voters in this state are going to go with the pro-choice fiscal idiots.

It may surprise you, but San Francisco is full of conservatives. They just happen to be conservatives who are pro-choice, pro-gay-rights, and all those other things that educated Californians seem to agree on.

Please, please, please, Rs, please, align yourself with ideas and messages that are viable among educated, urban Californians.

bwiese
03-09-2008, 10:56 PM
For the record, I don't personally give much of a damn about these issues - other than the fact they render Republicans unelectable except for safe seats, and thus further threaten my gun rights (and tax issues to a lesser extent).

CA R's are very, very close to even losing their hold on the 2/3 budget votes.

CCWFacts
03-09-2008, 11:01 PM
For the record, I don't personally give much of a damn about these issues - other than the fact they render Republicans unelectable except for safe seats, and thus further threaten my gun rights (and tax issues to a lesser extent).

Likewise. I hardly care.

CA R's are very, very close to even losing their hold on the 2/3 budget votes.

If that happened, it might be a good thing. Think about it.

FallingDown
03-10-2008, 2:31 AM
Okay, so what your saying is resistance is futile. If you don't like it, leave California. Works for me.

Perhaps you are the wisest of all Jedi, Qui Gonn Jin.

FallingDown
03-10-2008, 2:40 AM
I agree with everything BW is saying about the Rs in this state.

However you feel about the issues, pro-life, pro-creationism-in-schools stances are NOT going to be viable among college-educated Californians. And that segment of the population is the segment that controls the urban centers of this state, aside from Fresno and Bakersfield and Orange County.

This state has plenty of non-religious conservatives in the urban and suburban areas who could vote R but are so repulsed by the R's current platform and alignment that they won't. Given a choice between pro-choice, pro-evolution fiscal idiots (Democrats) and anti-choice, pro-creation fiscally conservative people (Rs), voters in this state are going to go with the pro-choice fiscal idiots.

It may surprise you, but San Francisco is full of conservatives. They just happen to be conservatives who are pro-choice, pro-gay-rights, and all those other things that educated Californians seem to agree on.

Please, please, please, Rs, please, align yourself with ideas and messages that are viable among educated, urban Californians.

Frazier Crane "well, I guess IF you HAD to pick a school on the west coast, I suppose it would be Stanford"

Would you provide a little clarification? Does educated mean smart and imply those who don't believe in said ideas and messages are dumb and uneducated? Or do you mean educated, as in describing a demographic slice of people with undergraduate and graduate degrees?

BTW - one of the most uneducated people, I ever met was a Stanford Junior who rented out one of my rooms in Mountain View 10 years ago.

ghideon
03-10-2008, 2:41 AM
Likewise. I hardly care.



If that happened, it might be a good thing. Think about it.

What? Let them run rampant and at the same time give them enough rope so that the R's have a shot in a few years when everyone is sick of spending going through the roof?

bwiese
03-10-2008, 2:59 AM
What? Let them run rampant and at the same time give them enough rope so that the R's have a shot in a few years when everyone is sick of spending going through the roof?

That seems to be (almost, not quite yet) the only option.

It'll take a Prop 13-style revolt again to bring R's back to some level of power, and that's even doubtful.

bwiese
03-10-2008, 3:02 AM
With degrees and/or middle/upper income professionals, suburban homeowner, DINKs or kids....

....a demographic the R's should OWN but flee them...


[quote]
BTW - one of the most uneducated people, I ever met was a Stanford Junior who rented out one of my rooms in Mountain View 10 years ago.So? (1) You're just pointing out the exception, and (2) he probably votes and I'd bet I could predict his vote, given what we are discussing.

FallingDown
03-11-2008, 3:23 AM
With degrees and/or middle/upper income professionals, suburban homeowner, DINKs or kids....

....a demographic the R's should OWN but flee them...


So? (1) You're just pointing out the exception, and (2) he probably votes and I'd bet I could predict his vote, given what we are discussing.

Well, consider how god awful the democrats have performed in this state for the last 20+ years. I figure even the bible thumping republicans would garner votes just out of sheer frustration and protest.

Seriously, what kind of damage would voting for the Orange county types engender? I hardly see California going the way of Kansas or South Carolina anytime soon. This state could suffer several terms of those people and I doubt there'd be a dent at all. (This coming from someone who fled the south)

Oh, the Leland S. U. student isn't a guy. I'd hazzard a guess that she's never voted in her life.

The second most uneducated person I've met (remember I've lived in southern states where people have no teeth and had jars of pigs feet in their home) was SecondAmendmentgirls best friend, who completed a Masters at Mills. If you'd like to meet her, I'd be more than happy to introduce her to you for sheer entertainment purposes.

My grandmother has a Masters in Archaeolgy, from the U.MN, she's had 3 books published and is an ardent gun grabber (She's an Roosevelt democrat) who's political acumen is limited to the talking points spelled out by the DNC literature she receives in the mail. I don't mind people who disagree with my political viewpoints but I'd prefer that their thoughts and reasons be their own.

The reason I asked is because I don't believe the Stanford student is the exception. In fact, time visiting Harvard, Yale, UCLA, UCB, SFSU, SJSU and many other universities across the nation, has cured me of any belief that college confers more than paper to most of it's graduates or the deans, tenured professors or TAs on campus. Not too mention all the sociology, art history, etc. grads, that I run into working at San Francisco bay area coffee shops
or bookstores.

I recall one individual at SJSU, who was a perpetual student (gotta wonder what his parents thought) working on his 6th undergraduate degree and doing everything under the sun to avoid working.

On a side note, one of the most amusing comments I've ever heard was a Oregon AA/CC grad who interjected "I'm a college grad too" when several people were discussing programs at WSU, OR state and U.W. while I was in Portland in 2002.