Debbie Coffin, Analyst
Department of Justice, Firearms Division
P.O. Box 820200
Sacramento, CA 94203-0200
February 28, 2000
SB 23, the firearms magazine ban and expansion of the Roberti-Roos so-called "assault weapon" ban  is so broad and poorly constructed that it could turn millions of peaceable, lawful Californians who commit no overt act of any kind into felons. This position is inherently unjust. Millions of Californians lawfully own firearms magazines with a capacity larger than 10 rounds. For example, many of the most common pistols used by police and owned by civilians for self-defense use magazines larger than 10 rounds. The magazine restrictions could adversely affect more peaceable Californians than the so-called "assault weapon" portions.
The Department of Justice's proposed regulations for implementing SB 23 are similarly so poorly conceived and vague that they could be used to ban virtually all semiautomatic rifles in California. Since virtually every rifle has a "portion grasped [...] located beneath an imaginary line drawn parallel to the barrel that runs through the top of the exposed trigger," the ban could apply to nearly all semiautomatic rifles. The express terms of the proposed regulations do not make a distinction about what portion of the pistol grip is grasped above or below the line. There is an attempt at clarification on the DOJ web site but it's not clear such comments on a web site are either permanent or legally binding. At risk is the legal status of further millions of Californians.
SB 23 is further wrong in that it is both ineffective at reducing crime and unconstitutional. As shown in various credible criminological studies, so-called "assault weapons" are almost never used in crime. See for example the 7/9/95 U.S. Department of Justice, Bureau of Justice Statistics (BJS) report "Guns Used in Crime" which has a number of flawed assumptions, methodological errors, and incorrect definitions but still manages to find that so-called "assault weapons" are almost never used in crime:
Assault weapons and offendersThe quote above demonstrates several of the definitional errors in the BJS report. Commercial U.S. AR-15 and AK-47 rifles are not fully-automatic and are therefore not "military...assault rifles". Nevertheless, criminals largely don't use them.
In the 1991 BJS Survey of State Inmates, about 8% of the inmates reported that they had owned a military-type weapon, such as an Uzi, AK-47, AR-15, or M-16. Less than 1% said that they carried such a weapon when they committed the incident for which they were incarcerated. A Virginia inmate survey conducted between November 1992 and May 1993 found similar results: About 10% of the adult inmates reported that they had ever possessed an assault rifle, but none had carried it at the scene of a crime. 
Under SB 23, criminals would continue to have illegal access to their more traditional crime weapons and would remain largely unaffected by this law. Research by the U.S. Department of Justice's National Institute of Justice  consistently shows that more than 90% of criminals surveyed in federal prison do not obtain their firearms through legal means. Laws such as these are therefore ineffective at addressing the criminal abuse of firearms. They serve only to criminalize the citizens they are purported to protect.
Of greatest concern, these laws are also a direct affront to the Second Amendment of the U.S. Constitution. Extensive scholarship of this subject makes it clear that it protects the right of individuals to own arms of militia purpose. [4+] The 1982 U.S. Senate report on the Right to Keep and Bear Arms  is prefaced:
To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.
-- Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.
The great object is that every man be armed . . . Everyone who is able may have a gun.
-- Patrick Henry, in the Virginia Convention on the ratification of the Constitution.
The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.There is a plethora of Constitutional research conclusively demonstrating that the right to keep and bear militia arms is an individual and collective right. Enlightening, for example, are contemporary and post-Bill of Rights state constitutions reported in Clayton Cramer's book For The Defense Of Themselves And The State, The Original Intent & Judicial Interpretation Of The Right To Keep And Bear Arms:
-- James Madison, author of the Bill of Rights, in his Federalist Paper No. 26.
Pennsylvania's 1776 constitution declares: "That the people have a right to bear arms for the defence of themselves and the state..." Vermont's constitution of 1777 similarly proclaims: "That the people have a right to bear arms for the defence of themselves and the State..."This book was cited in the March 1999 U.S. District Court case Emerson v. U.S. Cramer also comments on the most recent U.S. Supreme Court decision to directly address a Second Amendment issue, U.S. v. Miller, as applied to the Roberti-Roos Assault Weapon Control Act:
In [the] formative period of American history (1789-1845), there are a total of fifteen constitutions, adopted by ten states, and one independent nation (the Republic of Texas) [ State Constitutions: Connecticut (1818), Indiana (1816), Kentucky (1792 & 1799), Michigan (1835), Missouri (1820), Mississippi (1817), Ohio (1802), Pennsylvania (1790), Texas (1845), Vermont (1793). Also, see the Republic of Texas (1838). Although a foreign country, the Republic of Texas was settled and controlled by Americans, who wrote a constitution expressing sentiments similar to the U.S. Constitution.] that contain a "right to bear arms in defense of himself and the State", or some slight variant. Because these provisions specify "in defense of himself", it is unambiguous that the right protected in each case is individual. These must be considered as evidence for the individualist school, since the language used is similar to, and doubtless borrowed from, the Second Amendment.
The [state] constitutions adopted after [the Bill of Rights] heavily support the individual rights position. Fifteen of the twenty constitutions adopted after the Constitution unambiguously protect an individual right; Rhode Island's constitution appears to protect an individual right; and of the remaining four, two are Tennessee's state constitutions, which Tennessee Supreme Court decisions and historical evidence clearly show were recognized as protecting an individual right.... 
Many of the rifles banned by Roberti-Roos are semiautomatic versions of battle rifles in current or recent military use in a number of the world's armies, including our own. That such weapons have "some reasonable relationship to the preservation or efficiency of a well regulated militia" -- the test endorsed by U.S. v. Miller for whether private ownership of a weapon was protected by the Second Amendment -- would seem undisputable. In Miller, the Court was responding to an argument that ownership of a short-barreled shotgun was protected by the Second Amendment. Their question was whether a short barreled shotgun was useful as a militia weapon. In fact they are, as reflected by their military use through World War I and continuing today. No real defense was presented in the Miller case, so that well known contemporary fact was never raised.  However it is clear that semi-automatic versions of current military rifles, i.e. the subject of this ban, are ideally suited as militia weapons and would likely pass the Miller test.
An individual rights interpretation is also reflected in recent Supreme Court rulings:
"The people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
-- U.S. v. Verdugo-Urquidez, 1990 
If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.... Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right.The March 30, 1999 U.S. District Court case from Texas, Emerson v. U.S.  contains a spirited and thorough defense of the Second Amendment as an individual right, along with other fundamental Constitutional rights. The decision cites much recent legal scholarship and judicial history and because of the issues it raises, it may well lead to a new Supreme Court case directly addressing the Second Amendment.
-- Printz v. U.S., 1997 
There is far more scholarship addressing this issue in much greater detail than a brief letter can. Throughout it is clear that private ownership of effective, modern arms is considered a fundamental, individual right which can not be legislated away by state or Federal governments. This history should not be ignored; since the Constitution is the supreme law of the land, it may not be. I'd like to close this letter with two contrasting quotations:
No freeman shall ever be debarred the use of arms.
-- Thomas Jefferson's June 1776 draft of the Virginia Constitution
To hell with the Constitution.Have we truly reached a point where contempt for our Constitution is now codified into laws such as this? If such clearly unconstitutional laws are allowed to stand, then we no longer live under the rule of law, but have returned to the arbitrary rule of man where government is now the master of the people in contradiction of our founding principles. A good start towards restoring a Constitutional government and the rule of law would be for elected officials to honor their sworn oath to the Constitution of the United States and reject or at least refuse to enforce clearly unconstitutional laws such as this. A law that violates the supreme law of the land is no law.
-- Former California Assemblyman Mike Roos, February 1989, regarding his so-called "assault weapon" ban
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
-- 16 Am. Jur. Sec. 177 late 2d, Sec 256
CC: Governor Davis
A condensation of the book can be found at: