Kasler v. Lungren
| Citation | 61 Cal.App.4th 1237,72 Cal.Rptr.2d 260 |
| Decision Date | 04 March 1998 |
| Docket Number | No. C017769,C017769 |
| Court | California Court of Appeals |
| Parties | Previously published at 61 Cal.App.4th 1237 61 Cal.App.4th 1237, 98 Cal. Daily Op. Serv. 1581, 98 Daily Journal D.A.R. 2191 Peter Alan KASLER et al., Plaintiffs and Appellants, v. Daniel L. LUNGREN, as Attorney General, etc., et al. Defendants and Respondents. |
Benenson and Kates, Don B. Kates, Novato, Stephen P. Halbrook, Fairfax, VA, and C.D. Michel, Los Angeles, for Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Paul V. Bishop, John A. Gordnier and Tim L. Rieger, Deputy Attorneys General, for Defendants and Respondents.
O'Melveny and Myers, John A. Crose, Jr., Robert C. Vanderet, Charles C. Lifland, Los Angeles, Jennifer L. Isenberg, San Francisco, Dennis A. Henigan and Mark D. Polston, Washington, DC, Amici Curiae for Defendants and Respondents.
This appeal challenges the Roberti-Roos Assault Weapons Control Act of 1989 (the Act) (Pen.Code, § 12275 et seq., further unspecified section references are to this Code). The trial court sustained a demurrer without leave to amend except as to one cause of action, regarding a particular model of rifle (the Colt Sporter), which plaintiffs (Kasler) declined to amend. We reverse with directions.
This appeal is not about the competing, earnest, views of those who wish to ban guns and those who wish to own and lawfully use them. The parties (Galvan v. Superior Court of City and County of San Francisco (1969) 70 Cal.2d 851, 869, 76 Cal.Rptr. 642, 452 P.2d 930.) It is not within our province as judges to determine whether regulating guns in general, or some or all semiautomatic guns in particular, will be "good" or "bad" for California. That is a determination about social policy which the People must make, directly by initiative or through their elected representatives. Our function is to determine whether the complaint competently alleges constitutional flaws in the method chosen by the Legislature to regulate certain guns. We conclude that it does.
The Act consists of a list by make and model of banned guns and a mechanism by which the judiciary is allowed to add guns to the list. This mechanism (the "add-on" provision) violates the separation of powers doctrine and the due process of law. Although this provision seems central to the purpose of the Act, and it seems unlikely that the remainder of the Act would have been passed without it, the Act contains a severability clause which insulates the remaining portions of the Act. However, the remainder of the Act is vulnerable to Kasler's equal protection challenge. The facts alleged in the complaint, if true, establish that the "list" method employed by the Act violates equal protection because it does not rationally distinguish between owners of regulated and unregulated guns who are identically situated with respect to the harm sought to be alleviated. Because this case arises on demurrer, the case must be remanded for a trial on these allegations in the complaint. Other counts as to which the demurrer was sustained have been abandoned by the failure to defend them on appeal.
To place the Act in perspective, we begin with a brief discussion about the mechanics of guns and gun laws.
Some guns can fire more than once without the need to break open the action, utilizing some device to feed ammunition to the chamber. The simplest family within this class consists of bolt-action, lever-action and pump-action guns which feed cartridges into the chamber as fast as the shooter operates the action. An example would be the classic Winchester rifle. Another family in this class is the "self-loading" gun, which typically uses the recoil or expanding gas of a gunshot to work the action: After a cartridge is fired, the gun reloads itself with the next cartridge in the magazine or belt. There are two kinds of self-loading guns. Machine ("automatic") guns fire until the ammunition is exhausted or the shooter releases the trigger. Semiautomatic guns reload themselves after each shot is fired, but the trigger must be pulled each time the shooter fires.
Some machine guns are "selective fire" guns, meaning that with the flip of a lever the gun can be fired as a machine gun, or limited to firing as a semiautomatic gun. According to the late Edward Ezell, Curator of the National Firearms Collection of the Smithsonian Institution, the first "assault weapon" was the selective fire German Sturmgewehr series, introduced in World War II, which was designed to fire a shorter, less powerful, cartridge and projectile than existing rifles. (Ezell, Small Arms of the World (12th. ed.1983) [61 Cal.App.4th 1244] pp. 16-17, 514-516; Ezell, Small Arms Today (2d ed.1988) p. 457; Encyclopdia Britannica (1997 CD-Rom ed.), Technology of War Assault Weapon [articles by Ezell].) The selective fire function, the ability to fire both semi-automatic or full automatic, is a generally accepted feature of an "assault weapon" as far as arms experts are concerned. (E.g., Johnson, Small Arms Identification and Operation Guide--Free World (Defense Intelligence Agency, 4th ed.1976) pp. 127, 137, 200-201; Long, Assault Pistols, Rifles and Submachine Guns (1991) pp. 1, 10-15.) Thus, a true "assault weapon" is a type of machine gun. The Act has nothing to do with machine guns.
Semiautomatic guns have been around for over a century. (Encyclopdia Britannica (1997 CD-Rom ed Technology of War: Self-loaders.) They may be pistols, rifles or shotguns. They can have internal ("integral") magazines or detachable magazines, which can come in many sizes. Some semiautomatic guns look like or are patterned after machine guns. For example, the Israeli "Uzi" was designed as a selective fire machine gun. (Small Arms of the World, p. 122, Small Arms Today, pp. 167, 328.) But there is a semiautomatic version for consumption in the United States. Similarly, the "AR-15" (Armalite 15) family of rifles includes the selective-fire "M-16," but also includes semiautomatic rifles, such as the AR-15 Sporter, generically referred to as "AR-15s" to distinguish them from M-16s. (Small Arms of the World, pp. 46-47, 747-748.) But many, if not most, semiautomatic guns have no relationship to automatic guns. Ordinary pistols like the current U.S. issue M9 nine millimeter series and its predecessor, the M1911 .45 caliber series, are semiautomatic and can accept detachable clips, yet neither is patterned after an automatic gun. (Small Arms Today, supra, pp. 393-394; Small Arms of the World, supra, pp. 739-740.)
However, the term "assault weapon" has entered the political lexicon, now meaning a "military-looking" semiautomatic weapon, which is frequently assumed to be the "weapon of choice" of criminals and also assumed to be readily convertible into a machine gun. .))
Early gun control laws were directed at oppressed peoples, such as slaves and freedmen, and the politically powerless, such as immigrants and religious minorities. (Powe, Guns, Words, and Constitutional Interpretation (May 1997) 38 Wm. & M. L.Rev. 1311, 1346-1347, 1375-1376; Kleck, Point Blank,supra, p. 5; Kates, Gun Control: Separating Reality from Symbolism (1994) 20 J. Cont.L. 353, 370-371; Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1983) 82 Mich. L.Rev. 204, 235-239; see Levinson, The Embarrassing Second Amendment (1989) 99 Yale L.J. 637, 656-657 & fn. 95.) California followed this pattern shortly after statehood by criminalizing the gift or sale of any gun to "any Indian." (Stats. 1854, ch. 12, § 1, p. 24; see 1 Ann. Pen.Code, § 398 (1st ed. 1872, Haymond & Burch).) Such laws presume the proscribed class is likely to engage in crime.
Later laws focused on concealed weapons (Stats. 1863, ch. 485, § 1, p. 748, repealed 1869-1870, ch. 63, § 1, p. 67), loaded guns in public (§§ 171c, 171d, 12031; accord 2 Edw. III, ch. 3 [1 Stats. at Large 422] [illegal to ride armed in fairs, "in the presence of Justices" and so forth] ), or in certain cases carrying an unloaded, unconcealed gun. (E.g., §§ 171b, 12040.)
In addition to enhancing penalties for the use or possession of a gun during a crime (e.g., Stats.1929, ch. 872, § 1, pp.1930-1932; see also e.g., §§ 12021.5, 12022, 12022.5), the Legislature has found certain guns are more likely to be used in crime and therefore has sought to control the guns themselves.
The Dangerous Weapons Act (now the Dangerous Weapons Control Law) focuses on guns "capable" of being concealed on the person, and requires dealers to record sales of such guns. (Stats.1917, ch. 145, § 3, p. 221, § 7, pp. 222-224; see § 12073.) The presumption is that guns which can be concealed are more likely to be used in crimes and therefore a record of sales of such guns deters crime or aids in the apprehension of criminals.
Guns are also regulated based on the...
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