Fresno Rifle and Pistol Club, Inc. v. Van De Kamp, 91-15466

• Citation: 965 F.2d 723
• Decision Date: 22 May 1992
• Docket Number: No. 91-15466,91-15466
• Parties: FRESNO RIFLE AND PISTOL CLUB, INC., et al., Plaintiffs-Appellants, v. John K. VAN DE KAMP, Esq., in his official capacity as Attorney General of the State of California, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 723

965 F.2d 723

60 USLW 2759

FRESNO RIFLE AND PISTOL CLUB, INC., et al., Plaintiffs-Appellants, v. John K. VAN DE KAMP, Esq., in his official capacity as Attorney General of the State of California Defendant-Appellee.

No. 91-15466.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 16, 1992.

Decided May 22, 1992.

Stephen P. Halbrook, Fairfax, Va., for plaintiffs-appellants.

Daniel G. Stone, Deputy Atty. Gen., Sacramento, Cal., for defendant-appellee.

Don B. Kates, Jr., Benenson and Kates, Novato, Cal., for amici Law Enforcement Alliance of America, Congress of Racial Equality, and Second Amendment Foundation.

Robert C. Vanderet, O'Melveny & Myers, Los Angeles, Cal., for amici Center to Prevent Handgun Violence Legal Action Project, Peace Officers Research Ass'n of California, California Police Chiefs Ass'n, California Peace Officers Ass'n, National Fraternal Order of Police, National Ass'n of Police Organizations, International Ass'n of Chiefs of Police, Major Cities Chiefs, National Organization of Black Law Enforcement Executives, and Police Executive Research Forum.

Appeal from the United States District Court for the Eastern District of California.

Before: SCHROEDER, LEAVY and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Several local, state, and national clubs which sponsor shooting competitions and represent the interests of firearm owners, individuals who own or wish to purchase firearms to use in the federal Civilian Marksmanship Program, and two gun manufacturers who make firearms which are designated as "assault weapons" and are regulated by California's Roberti-Roos Assault Weapons Control Act of 1989 ("AWCA"), Cal.Penal Code §§ 12275-12290, seek a declaration that the AWCA is preempted by the Civilian Marksmanship Program ("CMP"), 10 U.S.C. §§ 4307-4313; that the AWCA is an unconstitutional bill of attainder under Article I, section 10, clause 1 of the United States Constitution; and that the AWCA infringes upon their right to bear firearms under the Second Amendment. The district court dismissed their complaint under Fed.R.Civ.P. 12(b)(6), Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 746 F.Supp. 1415 (E.D.Cal.1990), and the plaintiffs now appeal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

The AWCA proscribes the manufacture, sale, transfer, possession, distribution, transportation, and importation of numerous firearms without a permit. It was enacted in 1989 as a result of the California Legislature's finding "that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state." AWCA § 12275.5. As amended in 1991, ¹ the AWCA classifies as assault weapons twenty-one categories of rifles, eight categories of pistols, and three categories of shotguns. AWCA § 12276. The Legislature found "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." AWCA § 12275.5. The Act permits the state Attorney General to seek future judicial declarations that firearms other than those specifically identified qualify as assault weapons. AWCA § 12276.5.

Under the Act, any person who lawfully possessed an assault weapon prior to June 1, 1989, and any person who possesses a firearm prior to the date it is categorized as an assault weapon under § 12276.5, must register the firearm with the California Department of Justice. AWCA § 12285. These persons generally may possess the weapon only at their residence or place of business; at shooting clubs, target ranges, and exhibitions; and while transporting the weapon between any of these places. AWCA § 12285(c). All other persons--including those persons who possessed an assault weapon prior to June 1, 1989, but wish to use it in a manner not authorized by § 12285--must obtain a permit from the Department of Justice. AWCA § 12286.

The complaint alleges that the AWCA is preempted by two different federal statutory schemes; that it violates both the state and federal constitutions by depriving the plaintiffs of privileges and immunities, their personal right to bear arms, their right of privacy, and their privilege against self-incrimination; and that it constitutes a bill of attainder. The Attorney General moved to dismiss, and the plaintiffs moved for a temporary injunction. The district court consolidated the two for hearing, denied the request for injunctive relief, and dismissed the complaint in its entirety. Fresno Rifle, 746 F.Supp. at 1427. The plaintiffs' motion to alter or amend the judgment was subsequently denied.

The plaintiffs appeal only that part of the order dismissing their claims that the AWCA is preempted by the CMP, impermissibly infringes their Second Amendment rights, and unconstitutionally inflicts punishment on the gun manufacturers within the meaning of the Bill of Attainder Clause. ² We review de novo the district court's dismissal under Rule 12(b)(6). Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir.1990).

II

The plaintiffs contend that the AWCA is preempted by federal legislation under the Supremacy Clause of the federal Constitution. They argue that Congress has the exclusive power under Article I, section 8 of the Constitution "[t]o raise and support armies" and "[t]o provide for organizing, arming, and disciplining, the Militia." Pursuant to that power, Congress established the CMP in the early 1900s "to create interest in marksmanship training among U.S. men of military age." U.S. General Accounting Office, Report to the Chairman, Committee on Armed Services, House of Representatives: Military Preparedness-Army's Civilian Marksmanship Program is of Limited Value 1 (1990) [hereinafter "GAO Report"]. The program authorizes "(1) a Director of Civilian Marksmanship [to serve under the auspices of the Secretary of the Army], (2) an affiliated club system, (3) rifle competitions [and instruction], (4) annual National Matches [held with the assistance of the] National Rifle Association (NRA), and (5) the sale of weapons to affiliated club members." ³ Id. at 2. The plaintiffs argue that the AWCA prohibits the rifles which the CMP and its implementing regulations, 32 C.F.R. pts. 543-544, encourage civilians to obtain and use in rifle matches, and thus materially impairs their ability to sponsor matches and engage in competitive events as contemplated by the federal program. In that respect, they urge, California's law interferes with promotion of the national defense and is preempted.

Preemption "in the first instance turn[s] on congressional intent." Wisconsin Pub. Intervenor v. Mortier, --- U.S. ----, ----, 111 S.Ct. 2476, 2481, 115 L.Ed.2d 532 (1991). Absent explicit language indicating an intent to preempt,

Congress' intent to supersede state law in a given area may nonetheless be implicit if a scheme of federal regulation is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," if "the Act of Congress ... touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject," or if the goals "sought to be obtained" and the "obligations imposed" reveal a purpose to preclude state authority.

Id. 111 S.Ct. at 2481-82 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). When considering preemption, we must "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 2482 (quoting Rice, 331 U.S. at 230, 67 S.Ct. at 1152).

Nothing in the CMP or its implementing regulations suggests that Congress intended to supersede state gun control measures such as the AWCA. The CMP does not declare an intention to preempt state law. Nor is the CMP "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement" the field. Id. at 2481 (quoting Rice, 331 U.S. at 230, 67 S.Ct. at 1152). The Program merely encourages citizens to undergo marksmanship training in voluntary shooting matches. This goal does not "reveal a purpose to preclude state authority." Id. at 2482. ⁴

Even if Congress did not manifest an intent to occupy the field of gun control, the plaintiffs claim that the AWCA conflicts with 32 C.F.R. § 544.52(c) and is therefore preempted because it is impossible for competitors to compete without access to weapons used in the CMP matches. See Mortier, 111 S.Ct. at 2482 (preemptive conflict arises when "compliance with both federal and state regulations is a physical impossibility" or when state law is obstacle to accomplishment of congressional purposes) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963)). They point to the regulation which authorizes use of commercial equivalents of the M16:

US rifle, caliber 5.56mm M16 series. Competitors may use the caliber 5.56mm M16 series as issued by the US Armed Forces or a commercial rifle of the same type and caliber. ⁵

32 C.F.R. § 544.52(c). The plaintiffs claim that the Colt AR-15 Sporter, which is listed as an assault weapon under AWCA § 12276(a)(5), is a valid commercial equivalent of an M16 under 32 C.F.R. § 544.52(c), but that the AWCA deprives them of the opportunity to use it even though it is one of the three rifles authorized for use in the CMP.

Assuming that the Colt AR-15 Sporter rifle qualifies as a commercial equivalent of the M16 for purposes of the CMP, the CMP and the AWCA do not "actually conflict." Mortier, 111 S.Ct. at 2482. At most, the AR-15 Sporter is but one of the weapons authorized for use in the CMP. It is not required for use in the CMP. Nor...