History of 'Assault Weapon' laws
History Of Assault Weapon Laws
California does not have a ban on 'assault weapons'. It does have a ban on the transfer of things it describes as 'assault weapons' unless to law-enforcement and certain licensees. Possession and somewhat restricted transport and use of 'assault weapons' has remained legal.
The federal law of 1994, the Assault Weapons Ban (expired September 13, 2004) also did not ban 'assault weapons'. It banned manufacture and sale of certain named weapons and weapons with certain characteristics. During the ten years of the effectiveness of the law, 'assault weapons' owned before the 1994 effective date could be owned, used and transferred. After the law expired, those weapons had no special status in Federal law.
A ban would at least include prohibition on possession, as Great Britain and Australia implemented in the 1990s.
Great Britain has a handgun ban due to the Dunblane massacre.
The Dunblane massacre was a multiple murder-suicide which occurred at Dunblane Primary School in the Scottish town of Dunblane on 13 March 1996. Sixteen children and one adult were killed. In addition, the attacker, Thomas Watt Hamilton, committed suicide. Mrs. Ann Pearston, a friend of some of the bereaved families, founded a very widely supported campaign, named the Snowdrop Petition (because March is snowdrop time in Scotland), which gained 705,000 signatures in support, and was successful in pressing Parliament, and the then-current Conservative government, into introducing a ban on all cartridge ammunition handguns with the exception of .22 calibre single-shot weapons in England, Scotland and Wales. ... Following the 1997 General Election, the Labour government of Tony Blair introduced the Firearms (Amendment) (No. 2) Act 1997, banning the remaining .22 cartridge handguns in England, Scotland and Wales, and leaving only muzzle-loading and historic handguns legal, as well as certain sporting handguns (e.g. "Long-Arms") that fall outside the Home Office Definition of a "Handgun" due to their dimensions. The ban does not affect Northern Ireland, the Isle of Man, or the Channel Islands.
Australia has a semi-automatic rifle ban due the the events at Port Arthur.
The Port Arthur massacre of 28 April 1996 was a killing spree which claimed the lives of 35 people and wounded 21 others mainly at the historic Port Arthur prison colony, a popular tourist site in south-eastern Tasmania, Australia. Martin Bryant, a 28-year-old from New Town, eventually pleaded guilty to the crimes and was given 35 life sentences without possibility of parole.
Newly elected Prime Minister John Howard immediately took existing gun law proposals developed after the report of the 1988 National Committee on Violence and pushed the states to adopt them under a National Firearms Agreement, necessary because the Australian Constitution does not give the Commonwealth power to enact gun laws. The proposals included a ban on all semi-automatic rifles and all semi-automatic and pump-action shotguns, and a tightly restrictive system of licensing and ownership controls. Some discussion of measures to allow owners to undertake modifications to reduce the capacity of magazine-fed shotguns occurred, but the Government decided not to permit this. Public feeling after the Port Arthur shootings overwhelmed the opposition from gun owners' organisations and the Commonwealth was able to induce all states to agree to their proposals without change.
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 in Stockton, California. Bruce H. Kobayashi and Joseph E. Olson have a segment "PASSAGE OF THE AWCA: A TIMELINE" in their Stanford Law and Policy Review (Vol. 8, No. 1, 1997: 41) article IN RE 101 CALIFORNIA STREET: A LEGAL AND ECONOMIC ANALYSIS OF STRICT LIABILITY FOR THE MANUFACTURE AND SALE OF "ASSAULT WEAPONS". At the conclusion of the timeline, the authors write
The suppressed Bureau of Forensic Services and Bureau of Narcotics Enforcement data make clear that the firearms identified as assault weapons are virtually never used in crime. In addition, the California Department of Justice memoranda and reports confirm that assault weapons are not significantly distinguishable from other functionally-identical firearms that have not been restricted by the AWCA. Indeed, David Kopel's analysis suggests that the ban would not withstand even rational basis review, since there is little evidence that such firearms are used predominately or even frequently in crime, the statutory definitions of assault weapons are inconsistent and irrational, and the restrictions result in arbitrary suppression of the constitutional right of self-defense.
Stephen C. Helsley remembers
One item on that list is
October 1988. Stephen C. Hensley, Acting Assistant Director of the Cal. DOJ's Investigation and Enforcement Branch, determines that assault rifles cannot be defined workably on the basis of style (size, caliber, rifle/pistol type, or magazine capacity) but only on the basis of action-type (semiautomatic) a functional characteristic. He warns that "this [action-type] approach would cover hundreds of different types of firearms of which in total many tens of millions of units have been produced," and he calls the good gun/bad gun distinction one based on "faulty logic." He notes that the involvement of assault rifles in crime is "at or slightly above the statistical aberration level" and points out that the majority of guns chosen by criminals are the .22- and .38-caliber handgun and the 12 gauge shotgun.
Helsley's memorandum is further discussed here by Harry V. Martin.
The legislature passed SB292, 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.
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 (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.
The next challenge was Kasler v. Lockyer, 2 P.3d 581 (Cal. 2000)
In the decision, the California Supreme Court wrote
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. 581,337 Holding that only persons, not things [guns], are protected from unequal legal treatment 581,338 Therefore, as the AWCA does not burden a fundamental right under either the federal or the state Constitutions, the rational basis test applies. 581,339
The California DOJ said this about Kasler
What is the Kasler v. Lockyer California Supreme Court decision and what does it do? This court decision upholds the constitutionality of the Assault Weapons Control Act of 1989. As a result, the Department of Justice (DOJ) is obligated to enforce the statute with respect to identification of AK and AR-15 series weapons. These assault weapons are listed by the Department of Justice in the California Code of Regulations, Title 11, Chapter 12.9, Section 979.11 (11 CCR 979.11)
(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, 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.
Harrott v. County of Kings (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 offered this summary of the effects of Harrott:
Supreme Court decision cripples assault weapons ban By David Kravets 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.
Amendments to the original AWCA
In 1999, Senate Bill 23 (SB-23) 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.
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.
Attorney General Lockyer wrote, September 1, 2006
Due to the growing popularity of lower receivers, the Attorney General's Office has determined that updating the assault weapons list with new makes and models will serve no purpose other than to completely undermine California law by allowing the proliferation of registered assault weapons. When the Attorney General's Office lists a new assault weapon, it is required to open up a registration period. (§ 12285.) Consequently, any person who has imported a legal receiver could then register their receiver as an assault weapon. This would then theoretically allow the registrant to add any and all of the features prohibited under section 12276.1, and would allow the person to possess a fully functioning assault weapon. Unfortunately, as soon as a new list is promulgated, all the current makes/models of lower receivers will immediately receive new "markings" and monikers and the whole process will repeat itself. Recently, because of the expectation that the Attorney General will list new receivers, thereby opening up a registration period for new weapons, it has been estimated that more than 30,000 receivers have been imported into California. In addition, notwithstanding the fact that our office has posted a bulletin stating that we will not list new assault weapons, there is still an expectation that we will list the weapons someday. In order to end the speculation as to whether the Attorney General's Office will or will not list, we believe the best course of action is to remove the provision of law that authorizes the Attorney General to add additional weapons.