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Pivotal change to assault-weapons ban went largely unnoticed

Over the past couple of years, hundreds of people sought to get their gun components banned under California’s assault weapons law–paradoxically, so they could legally own them. The fights led to gun enthusiasts threatening DOJ officials, posting their addresses and children’s names online, and the DOJ trying to opt out of the controversy by cutting its own power. In the end, a widely misunderstood fix slipped through the Legislature, leaving these would-be assault-weapon owners with what one person involved called “very expensive paperweights.”

Welcome to the arcane world of firearms laws, where following the action can be nearly impossible and the legality or illegality of a weapon can hinge on arguments over definitions that would make Bill Clinton blush.

Last year’s AB 2728 by then-Assemblyman Johan Klehs passed out of the Senate August 29 by a wide margin and with five Republican votes. It left the Assembly with 49 votes two days later and was signed into law by Gov. Arnold Schwarzenegger in late September.

With that, the most important revision in California’s assault-weapons law in nearly a decade became law while hardly causing a ripple.

In effect, AB 2728, repealed part of the existing assault-weapons ban, and sought to replace it with new language that would close some of the loopholes in the original legislation.

It all started with some assault-rifle enthusiasts “who thought they were onto something,” according to Steve Coony, chief deputy attorney general under former Attorney General Bill Lockyer, who oversaw the Firearms Division and director Randy Rossi.

California passed the original Roberti-Roos Assault Weapons Control Act in 1989. The law followed a shooting at a Stockton elementary-school playground that killed five children and wounded 30 others.

The shooter, Patrick Purdy, used two assault rifles in the shooting. While the public wanted action, the Legislature was left with a tricky task of defining what makes an assault weapon.

The bill was mainly aimed and two kinds of weapons: AR series weapons, which are the semi-automatic civilian version of the military M-16; and AK series weapons, like the AK-47 Purdy used. So the authors chose to ban guns by name.

The Firearms Bureau of the DOJ–elevated to the higher Division status by Lockyer when he arrived as AG in 2001–was given the task of clarifying these regulations so police officers across the state could enforce it. They immediately encountered two problems that would plague them over the ensuing years. First, prior lawful owners of these guns had to be grandfathered in and were allowed to keep their weapons.

Second was the predictable set of issues that comes with trying to enforce an assault-weapons ban on people who knew these guns inside out. Such semi-automatic rifles are “finicky” and need to be cleaned regularly, said William Vizzard, a criminal-justice professor at California State University at Sacramento. If you use one, he said, you know how to take it apart and put it back together the way you see in war movies, he said.

Lobbyist Sam Paredes of the Gun Owners of California echoed Vizzard’s opinion. “People who own these guns, if they want them to work, they have to know them that well,” he said.

Gun makers quickly sought to get around the ban by issuing similar weapons with new names. In 1999, Senator Don Perata, D-Oakland, responded with SB 23. This bill added a list of characteristics under which a weapon could be banned, items such as a pistol grip, a folding stock, flash suppressors and oversized magazines.

When SB 23 became law, it allowed the DOJ to more quickly add guns to the banned list. But the next models came out with features that allowed them to get around the ban, such as pistol grips that were attached directly the stock. The DOJ’s firearms staff found themselves managing an unwieldy dual system, with the grandfather clause still in place.

Then the letters started. Beginning in the fall of 2005, people would write or e-mail DOJ staff seeking “clarifications” on the law, said Coony. At the center of these discussions were not assault rifles, but a component called a receiver, which holds and distributes bullets. While these receivers are useless on their own, they can be built up into full-fledged assault weapons.

The idea, Coony said, was to get the DOJ to declare a ban on classes of receivers bought legally, therefore making their owners eligible to grandfather these in and then build them up into full-fledged weapons.

The 2004 expiration of the federal assault-weapons ban added some urgency to the situation, Coony said. While estimates of the number of receivers out there waiting to be built up ranged up to 100,000, he said, the DOJ estimated there were between 25,000 and 40,000. Paredes estimates a somewhat lower number, probably under 10,000. Most cost in the neighborhood of $600.

Gun lobbyist Paredes said that DOJ staff repeatedly sought to take care of the situation by “legislating by regulation,”–that is, making new rules rather than clarifying the actual imperfect ones passed by the Legislature. In the years since the original law was passed, he said, these weapons rarely have been used in crimes. But the new generation of highly accurate assault rifles have become the standard in target-shooting competitions–competitions that are increasingly difficult for Californians to enter.

“They threw gasoline on a smoking ember,” Paredes said. “A lot of it consisted of the DOJ changing their minds about what they really meant.”

Over the next several months, DOJ staff would answer questions–and then see these answers posted and ripped apart on online bulletin boards. Staff repeatedly were insulted, Coony said, and these insults grew into threats of violence against them and their families.

Even Vizzard, who is generally seen as a supporter of gun rights, says things got out of hand. “I think some of these people go to sleep thinking about assault weapons,” he said. “They see it as a moral issue. They’d rather give up the right to vote.”

Irwin Nowick, a Senate Rules consultant under Perata who has worked extensively on gun issues, refused to fault the DOJ, saying they were caught in a really bad situation. In the end, he added, they did the right thing–they came to the Legislature.

Klehs’s AB 2728 repealed aspects of the original Roberti-Roos law, killing off the model list and allowing the DOJ to make certain gun parts illegal. It also clarified the ban on .50 caliber rifle ammunition.

These provisions originally had gun-control advocates up in arms, Coony said, until they grasped the convoluted reasons behind them. Most of the bill language came out of the DOJ, Coony said. Klehs was chosen as
the author, Nowick said, because he was one of the few legislators who was knowledgeable about guns.
Once it hit the Senate, AB 2728 picked up votes from two well-known, staunch conservative gun-rights supporters: Tom McClintock, R-Thousand Oaks, and Charles Poochigian, R-Fresno. Both were running for statewide office at the time.

“In the end, Perata got exactly what he wanted,” Nowick said. “These guys were left with very expensive paperweights. They outsmarted themselves.”
Paredes countered that the characteristic-based system of defining weapons is still clumsy and can be circumvented.

“It’s still very confusing,” Paredes said. “This isn’t over.”


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