For Immediate Release: August 14, 2012 ASSEMBLY APPROPRIATIONS COMMITTEE ANALYSIS SB 249 (YEE)

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization which serves its members by providing Second Amendment-related education, strategic litigation, and the defense of innocent California gun owners from improper or malicious prosecution. The Calguns Foundation seeks to inform government and protect the rights of individuals to acquire, own, and lawfully use firearms in California. California Association of Federal Firearms Licensees (www.calffl.org) is California's premier non-profit industry association of, by, and for firearms manufacturers, dealers, collectors, training professionals, shooting ranges, and others, advancing the interests of its members and the general public through strategic litigation, legislative efforts, and education. For more information or to join Cal-FFL, please visit calffl.org.

SB 249
Page 1 D ate of Hearing: August 16, 2012 ASSEMBLY COMMITTEE ON APPROPRIATIONS Mike Gatto, Chair SB 249 (Yee) - As Amended: August 7, 2012 Policy Committee: Public Safety Urgency: No SUMMARY This bill clarifies that a detachable magazine, for purposes of defining an assault weapon, is any ammunition feeding device that can be readily removed from the gun without disassembling the action. The bill specifies a detachable magazine includesl but is not limited to, a magazine that may be detached from the weapon by depressing a button on the gun with a finger, bullet or tool. This bill also: l) States that the clarified definition of detachable magazine is declaratory of existing law. State Mandated Local Program: No Vote:
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Reimbursable:

2) Requires the Attorney General (AG) to conform existing regulations regarding the defmition of assault weapon to the definition of detachable magazine proposed by th is bill.
FISCAL EFFECT 1) One-time special fund (Dealer Record of Sale Fund- DROS) costs, likely in excess of $200,000 (the AG's office estimates about $400,000), for the AG to conform existing regulations regarding the definition of assault weapon to the definition of detachable magazine proposed by this bill. 2) One-time special fund (DROS) costs, likely in excess of$1 50,000 to conduct a public outreach campaign that would include public postings, mail, electronic media, and AG Web site postings. 3) Unknown, potentially significant nonreimbursable costs to local law enforcement, including incarceration, to the extent additional persons are sentenced for possessing an assault weapon, offset to a minor degree by fine revenue. Over the past three years, an average of 75 persons were sentenced to state prison for related assault weapon offenses. For every 10% increase in this figure, annual correctional costs would increase by more than $200,000. COMMENTS

1) Rationale. This bill addresses the transformation of a legal firearm into an assault weapon with the push of a recessed button with a simple tool, such as a bullet, which allows the magazine - the bullet feeding device- to be quickly detached and replaced.
While current law prohibits possession of an assault weapon, and defines an assault weapon (in part) as a semiautomatic centerfire rifle that has the capacity to accept a detachable

SB249 Page 2 magazine and has at least one of six specified features - pistol grip, thum.bhole stock, folding or telescoping site, grenade or flare launcher, or flash suppressor - current California Department of Justice (DOJ) regulations cloud the issue, defining a detachable magazine as "any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use ofa tool required. A bullet or ammunition cartridge is considered a tool. " Due to this apparent definitional conflict, magazines are not considered detachable if a tool is required to remove the magazine from the weapon. As a result, gun manufacturers have built into their weapons what are kno\vn as bullet buttons~ recessed buttons that require a tool -the tip of a bullet suffices- to quickly release the magazine, allowing a replacement magazine to be inserted in seconds. Compared to the release process for a standard detachable magazine, the only difference is the use of a tool, which is allowable under DOJ regulations. According to the author, "Manufactures maintain that the firearm has a fixed magazine, which is neither detachable nor readily removed since a tool is necessary. Yet the fuearrns in question clearly have the capacity to accept a detached magazine, therefore conflicting -with the legislative intent to reduce the proliferation of assault weapons and subverting the assault weapon ban." The practical impact of this bill would be to clarify that bullet button magazine releases on semi-automatic rifles with the aforementioned features are illegal. This clarification could affect thousands of gun owners, who would be required to either convert the weapon to a fixed magazine - for example, with a bead of solder or epoxy - or sell or otherwise dispose of the gun. Development ofDOJ regulations would likely take up to a year, which, in practice, would delay enforcement until early 2014. 2) Weapons dealers target California buyers with bullet button marketing designed to sell assault weapons that are "California compliant": 11 factory installed Bullet Button" (Colt); "DPMS now offers several of our most popular rifles with a Bullet Button fixed magazine lower receiver"; "Magazine Release: California Compliant"- AR1 5SPR1LB-CA (A1maLite); "Fixed Magazine Bullet-Button" (Smith and Wesson M&Pl5) ; "Same Performance State Compliant Bullet Button lower receiver" (Bushmaster Bullet Button Patrolmans' Carbine, Bullet Button M4 Type ORC). On Amazon.com: "TheCA Legal Magazine Button allows the shooter to drop a magazine with the use of a tool. It prevents finger manipulation of the mag release, and creates a condition allowable under current individual interpretations of California law. This does not create a detachable mag situation, but create.s an attachable-fixed magazine condition. A bullet tip can be used as the tool, as can any small object such as Allen wrench, or small screwdriver." From the "Firearm Blog" "For those of you who are not familiar with it, the Bullet Button is a magazine release that cannot be operated with a finger; it requires a "tool" to release the magazine . A 5.56mm bullet is used as that tool. The reason for this is California law requiring fixed magazines for certain rifle configurations. The Mag Magnet is a "tool" for the bullet button that attaches to the button neodymium magnets and allows the operator to simply [push] the mag magnet to release the maga2ine, just like a regular magazine release.

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''This seems like a very black-grey area. The company says it is 11 for out of state use in whaL we call. .. 'Emergency Zombie Attacks'", that is should not be used in California and that it should not be left on the rifle ... of course we all know what it was designed for and how it will be used."
3) Support. Numerous supporters, including Califom ia Attorney General Kamala Harris, the California Chapter of the Brady Center to Prevent Gun Violence, Women Against Gun Violence, the Coalition to Stop Gun Violence, and the Violence Policy Center, the Law Center to Prevent Gun Violence (formerly the Legal Community Against Violence), contend this bill merely clarifies current law, which was intended to prohibit detachable magazines on assault weapons, as defined.

a) In a June 4, 20 12 letter to AG Kamala Harris, the author and Senate President Pro Tem Darrell Steinberg requested the AG to review its detachable magazine regulations, which "are in clear conflict with the p lain language of Penal Code Section 3051 5" and "update them immediately to be consistent with the plain language of and the Legislature's intent to reduce the proliferation and use of assault weapons that pose a threat to the health, safety and security of California citizens." b) In a June 21 letter to AG Harris, the Brady Center to Prevent Gun Violence, the Law Center to Prevent Gun Violence (fonnerly the Legal Community Against Violence), the Violence Policy Center, and the Violence Prevention Coalition of Greater Los Angeles, echo the Steinberg/Yee letter, and state, '1The current regulations l'Wl. counter to the intent of California.1s assault weapons law and undermine its effectiveness. The bullet button facilitates precisely the sort of quick re-loading- and potential for mass mayhem- that the California assault weapons ban prohibits. Moreover, since the regulations classify bullet button-equipped firearms as not having the capacity to accept a detachable ammunition magazine, these guns can incorporate virtually the full range of banned assault weapons features (folding or telescoping stock, flash suppressor, pistol grip, etc.)." c) In an August 8 letter in support of SB 249, AG Kamala Harris vmtes,
The term 11detachable magazine" was not defined in statute but was defined by regulation as 11 any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the fireanu action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool. 11 Over the past five years, this deftnition has been exploited through the creation of the ''bullet button", a mechanism that allows the quick release of a magazine. This mechanism effectively defeats the intent of Senate Bill 23 by allowing quick-release magazines on semi-automatic weapons with pistol grips, folding/telescoping stocks, flash suppressors or fonvard pistol grips. Senate Bill 249 seeks to close this loophole by providing a clear definition of "detachable rnagazine1' in the Penal Code. d) In a July 17, 2012, former Assemblyman Mike Roos, co-author of the Roberti-Ross Weapons Control Act of 1989, and Board Director of Women Against Violence wTote, "Under the guise that they may be authorized under the California DOJ regulations on detachable magazines, gun manufacturers are producing and selling assault weapons that are illegal under California statutes. It is critical that the Califomia DOJ update its

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regulations to be consistent with the law and put an end to this deliberate and dangerous evasion."
e) According to the Violence Policy Center, "These weapons undermine the state's assault weapons ban and present athreat to the safety of all Californians. The availability of these guns also make California a more attractive destination for international g1lll traffickers as assault rifles arc the current "weapons of choice" of international drug cartels in M exico and other Latin American countries. "SB249 is necessary t o restore the integrity of Cali fornia's assault weapons ban, a law designed to be the strongest in the country. The bill would establish a statutory deflnition of "detachable magazinen and clarify that firearms with "bullet buttons" are included in the category of firearms that the legislature intended to ban. The bill would also authorize the Department of Justice to adopt new regulations that are in conformance with tbe statute." 4) Opposition. Numerous g un-related organizations oppose this bill, generally on the basis that it will effectively ban a weapon owned by tens of thousands of Californians, and that it will prove to be an ineffective measure, as gun owners interested in bullet-button weapons will simply move to semi-automatic rifles that lack the Penal Code-referenced features that qualify the guns as assault weapons, and therefore can use a detachable magazine. a) The National Shooting Sports Foundation, INC states, "The recently amended SB 249 will comp letely ban the most popular firearm sold in recent years by making a ''bullet button" illegal. The bullet button was a regulation put into place by the California Attorney General's office back i n 2000. While it has been described as a "loophole" by many, the creation of the bullet button was simply the industry trying to comply with the State of California's law and regulations ... ."

"We believe this type ofproposed legislation will accomplish nothing. Tt will only impact legitimate citizens reducing their legal activities, promote a loss of revenue and jobs to the state, require more law enforcement, and further confuse the firearms owning public who are already confused by the conflicting gun laws that currently exist which appear to affect only them. We suggest con-ection of current laws rather than implementing new 11 feel. good" laws based upon irrational action and single events."
b) The California Association of Federal Firearms Licensees calls SB 249 "possibly the largest and most costly unconstitutional government taking of private property in Califomia history" and states that "If SB 249 passes in any form, Cal-FFL and its members will, w ithout fail , immediately file a federal civil rights lawsuit -likely in cooperation with The Calguns Foundation, the Second Amendment Foundation, and others- seeking inj unctive and declaratory relief." c) CALOUNS states> "SB 249 will be the largest frrearrns seizure since reconstruction. " 5) The issne of p ossessory Taking. TI1e Fifth Amendment to the U .S. Constitution states: " no:r shall private property be taken for public use without just compensation. " The question may be raised whether trus situation creates an unlawful taking by the government, in violation of the 51h Amendment. It does not appear to do so for the fo llowing reasons:

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a) The courts have long recognized that prohibiting possession of dangerous weapons is a valid exercise of a legislature's police power.
In 1978, Washington, D.C. passed a law prohibiting ownership of certain weapons, including those that could frre more than 13 rounds without reloading. The law was challenged by a gun oWners who legally purchased such weapons before the law went into effect and were thus required w dispose ofthern or be in violation of the law. They claimed this amounted to a tak1ng by the government, without just compensation, in violation of the Fifth Amendment. The Court of Appeals for the District of Columbia held: Petitioners' third constitutional challenge alleges that D.C. Code 1978 Supp.,
6- l820(c) provides for a taking oftheir property without just compensation in

violation of the Fifth Amendment. That section of the Code provides three alternatives for disposition within seven days of a firearm denied registration.
The unsuccessful applicant may (1) "peaceably surrender" the firearm to the chief of police, (2) ''lawfully remove" the fireann from the District for as long as he retains an interest in the firearm, or (3) "lawfully dispose'' of his interest in the firearm. Petitioners' argument is that the second and third alternatives require, under the terms imposed by the Federal Gun Control Act of 1968, 18 U.S.C. 922 (1970), a quick "forced sale" of the firearms at less than fair market value to a dealer in firearms, while the fttst alternative would provide not even a salvage value return. Assuming, arguendo, that the statute authorized a ''taking," we note that the Fifth Amendment prohibits taking of"private property ... for publlc use, 'vithout just compensation." Such a taking for the public benefit under a power of eminent domain is, however, to be distinguished from a proper exercise of police power to prevent a perceived public harm , which does not require compensation. Lanun v. Volpe, 449 F.2d 1202, 1203 (1 0th Cir. 1971). That the statute in question is an exercise of legislative police power and not of eminent domain is beyond dispute. The argument of petitioner, therefore, Jacks merit.

b) SB 249 states that the proposed clarification is declaratory of existing law, meaning it does not change the intent of the current statu~. c) Owne.rs of th e weapons affected. by the clarification of contained in SB 249 have ample time to sell or alter the weapon by affixing the magazine, disabling the n bullet burto_ , or otherwise changing components.
6) This bill was n.ot heard in the Senate or in an Assembly policy committee, It was an Augtl$t 7

gut-and-amend.

Geoff Long I APPR. I (916) 319-2081