Difference between revisions of "History of 'Assault Weapon' laws"

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The next challenge was [http://scholar.google.com/scholar_case?case=1634297592840751535&hl=en&as_sdt=2&as_vis=1&oi=scholarr Kasler v. Lockyer, 2 P.3d 581 (Cal. 2000)]
The next challenge was [http://scholar.google.com/scholar_case?case=1634297592840751535 Kasler v. Lockyer, 2 P.3d 581 (Cal. 2000)]
In the decision, the California Supreme Court wrote
In the decision, the California Supreme Court wrote

Revision as of 18:54, 4 March 2011

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

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

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.

Reaction to Port Arthur

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

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


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

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 memoire of the process is reproduced at this page: Helsley's Memoire

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.

Legal Challenges

Fresno Rifle

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

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, 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

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.