BILL ANALYSIS Ó
SB 249
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Date of Hearing: July 3, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 249 (Yee) - As Amended: June 27, 2012
SUMMARY : Prohibits any person from importing, making, selling,
loaning, transferring or possessing any conversion kit, as
specified, designed to convert certain firearms with a fixed
magazine into firearms with a detachable magazine.
Specifically, this bill :
1)States that any person who imports, makes, sells, loans,
transfers or possesses any conversion kit, as specified, shall
be punished by a fine of $1,000, imprisonment in the county
jail for up to one year, or by both the fine and imprisonment.
This prohibition does not apply to the following:
a) The sale to, transfer to, or loan to, importation of, or
possession of a conversion kit by the Department of
Justice, police department, sheriffs' offices, marshals'
offices, the Department of Corrections and Rehabilitation,
the Department of the California Highway Patrol, district
attorneys' offices, the Department of Fish and Game, the
Department of Parks and Recreation, or the military or
naval forces of this state or of the United States, or any
federal law enforcement agency for use in the discharge of
their official duties.
b) The transfer by or loan by the specified law enforcement
agencies of a conversion kit to sworn peace officer members
of those agencies for law enforcement purposes.
c) The possession of conversion kits by sworn peace officer
members of specified law enforcement agencies for law
enforcement purposes.
d) The manufacture of, possession of, or importation of a
conversion kit by any person who is issued an assault
weapon permit, as specified.
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e) The sale by, loan of, or transfer of a conversion kit by
a person who is issued an assault weapon permit, as
specified, to any of the following:
i) Specified law enforcement agencies;
ii) Entities and persons who have been issued assault
weapon permits, as specified;
iii) Federal military and law enforcement agencies;
iv) Law enforcement and military agencies of other
states; or,
v) Foreign governments and agencies approved by the
United States State Department.
f) A person who is the executor or administrator of an
estate that includes a conversion kit that is possessed in
accordance with, and disposed of as authorized by, the
probate court, if the disposition is otherwise permitted by
this section.
g) The possession of and sale or transfer of a conversion
kit by a person incident to relinquishing the conversion
kit, as specified.
h) The transfer by a person authorized to possess a
conversion kit by this section to any licensed gun dealer
for the purposes of servicing or repair from any person who
is legally entitled to possess it pursuant to this section.
i) The possession of a conversion kit by any licensed gun
dealer who received the conversion kit for servicing or
repair.
j) The transfer of possession of a conversion kit received
by any licensed gun dealer for servicing or repair to a
gunsmith for purposes of accomplishing service or repair of
that conversion kit. A transfer is permissible only to a
gunsmith who is in the dealer's employ or a gunsmith with
whom the dealer has contracted for gunsmithing services.
aa) The transfer of possession of any conversion kit by any
person referred to in the previous paragraph to either the
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licensed gun dealer from whom it was received or to a
person otherwise referred to in that paragraph.
bb) The return of any conversion kit initially received by
any licensed gun dealer pursuant to this section to the
person from whom he or she received it if that recipient is
legally entitled to possess that conversion kit pursuant to
this section.
cc) The possession of a conversion kit by the registered
owner of an assault weapon if the conversion kit is
possessed at that person's residence, place of business, or
other property owned by that person.
2)Defines "conversion kit" as any combination of parts that,
when affixed to a firearm with a fixed magazine, are designed
and intended to convert that firearm into an assault weapon,
as specified, or any part that when affixed to a firearm with
a fixed magazine, is designed solely and exclusively to
convert that firearm into an assault weapon, as specified.
3)States that this section will become operative July 1, 2013.
4)States that if more than one conversion kit is involved in any
violation, there shall be a distinct and separate offense for
each violation.
5)States that the provisions of this section are cumulative and
shall not be construed as restricting the application of any
other law. However, an act or omission punishable in
different ways by different provisions of law shall not be
punished under more than one provision.
6)Adds conversion kits, as defined, to the list of assault
weapons the possession is determined to be a public nuisance,
and for which the Attorney General, a district attorney or
city attorney may file a civil action in lieu of a criminal
prosecution. This fine may be up to $100 for the conversion
kit, and $50 for each additional kit. This section will
become operative July 1, 2013.
7)Allows and individual to relinquish a conversion kit to a
police or sheriff's department.
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EXISTING LAW :
1)Contains legislative findings and declarations that the
proliferation and use of assault and .50 BMG rifles poses a
threat to the health, safety, and security of all citizens of
California. (Penal Code Section 30505.)
2)States legislative intent to place restrictions on the use of
assault weapons and .50 BMG rifles and to establish a
registration and permit procedure for their lawful sale and
possession. (Penal Code Section 30505.)
3)Defines an "assault weapon", as specified. (Penal Code
Sections 30510 and 30515.)
4)Defines a ".50 BMG rifle and cartridge", as specified. (Penal
Code Sections 30525 and 30530.)
5)Makes the manufacture, distribution, transportation,
importation, sale, gift or loan of an assault weapon or a .50
BMG rifle a criminal offense. (Penal Code Section 30600.)
6)Makes the possession of assault weapons a criminal offense,
subject to certain exceptions. (Penal Code Section 30605.)
7)Exempts the DOJ, law enforcement agencies, military forces,
and other specified agencies from the prohibition against
sales to, purchase by, importation of, or possession of
assault weapons or .50 BMG rifles. (Penal Code Section
30625.)
8)Requires that any person who lawfully possesses an assault
weapon, as specified, must register the firearm with DOJ, as
specified. (Penal Code Section 30900 et. seq.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 249 addresses
the issue created by a tool that has the capability to convert
many semi-automatic rifles with magazine locking devices into
assault weapons. The 'Mag Magnet,' a tool advertised as
illegal to use in the state of California, is a part designed
and intended to convert a magazine locking device into a
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standard magazine release. The implication of the use of this
part for law enforcement safety and the welfare of the public
is the instant conversation of featured semi-automatic rifles
into illegal category 3 assault weapons, as defined by Penal
Code 30515.
"A prohibition against a part which transforms a legal firearm
into an illegal assault weapon will not affect the vast
majority of law abiding gun owners. With the latest
amendments removing the provision referring to a 'combination
of parts,' the intention of SB 249 remains intact while
reducing varying broad interpretations of the definition of a
conversion kit. While the accelerating proliferation of
semi-automatic rifles with magazine locking devices is
troubling to many, laws and regulations ought to be reviewed
and clarified for gun owners, law enforcement, and public
safety."
2)Background : According to information provided by the author,
"The problem this bill seeks to remedy concerns 'conversion
kits,' which, in combination with a magazine locking device,
is a tool that transforms some fixed magazine firearms into
assault weapons. One such conversion kit is a tool called a
'Mag Magnet.' Since the tool defeats a firearm's magazine
locking device, the 'Mag Magnet' is illegal to use within the
state of California. If a person possesses a firearm that has
one or more features specified in Penal Code 30515 and affixes
a 'Mag Magnet' to a firearm's magazine locking device, the
person is in possession of an illegal category 3 assault
weapon.
"This bill would prohibit any person, with certain exceptions,
from importing, making, selling, loaning, transferring, or
possessing any conversion kit and makes violations subject to
criminal penalties. This bill also makes possession of a
conversion kit a public nuisance and authorizes an individual
to relinquish a conversion kit to local law enforcement. SB
249 would become operative on July 1, 2012, in order to give
proper notice to the public.
"With certain exceptions, existing law prohibits possession of
an assault weapon and makes violations a criminal offense.
Penal Code section 30515 defines an assault weapon as a
'semiautomatic, centerfire rifle that has the capacity to
accept a detachable magazine' and any one of several specified
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features. Although statute does not define a detachable
magazine, California Department of Justice (DOJ) regulation
defines 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 of a tool
being required. A bullet or ammunition cartridge is
considered a tool.' (11 CCR § 5469(a))
"Existing law and regulation has resulted in gun manufacturers
producing firearms that meets the definition of an assault
weapon in section 30515, yet are legal due to a set of parts
that locks a magazine in place called a bullet button. The
bullet button is a modified release mechanism that is not
considered to be detachable since a tool is required to eject
the magazine from the weapon. Manufactures maintain that the
firearm has a fixed magazine, which is neither detachable nor
readily removed since a tool is necessary. Yet the firearms
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."
3)Takings Issues : Both the federal government and the states
have the authority to take private property when necessary for
government activities, but there is a limitation on this
power. The Fifth Amendment to the U.S. Constitution states:
"nor shall private property be taken for public use without
just compensation." For a legal analysis under the takings
clause one must consider the following: Is there a taking of
property; if so, is it for public use; if so, is "just
compensation" paid?
A possessory taking occurs when the government confiscates or
physically occupies property. If the government requires a
retired police officer to relinquish an assault weapon he or
she legally acquired with his or her own money, a taking of
property occurs. In order for the taking to be valid, it must
be for public use and just compensation must be paid. The
United States Supreme Court has expansively defined "public
use" so that almost any taking will meet this requirement. A
taking is for public use so long as the government is taking
property to achieve a legitimate government purpose and so
long as the taking is a reasonable way to achieve this goal.
ÝHawaii Housing Authority v. Midkiff (1984) 467 U.S. 229.]
The intent to stop the proliferation and use of assault
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weapons would appear to be a legitimate government purpose,
and restrictions on who can possess those weapons would be a
reasonable means of achieving this goal.
However, one must consider the issue of just compensation.
This bill does not contain any provision compensating the
owner of a conversion kit, purchased lawfully before the
implementation of this law, for the taking of that conversion
kit.
4)Second Amendment : The Second Amendment to the federal
Constitution provides, "A well regulated militia being
necessary to the security of a free state, the right of the
people to keep and bear arms shall not be infringed." In
District of Columbia v. Heller (2008) 554 U.S. 570, the United
States Supreme Court held that the Second Amendment protects
an individual's right to possess and carry weapons in case of
confrontation. The Court struck down a law banning possession
of handguns in the home.
Subsequently, in McDonald v. City of Chicago (2010) 561 U.S. __,
130 S.Ct. 3020, the Court held that Second Amendment rights
are applicable to the states. The majority found the
individual right to bear arms, particularly for self-defense
was fundamental.
However, the Second Amendment does not afford an unlimited right
to own a weapon. As the Court explained in Heller, the right
"to keep and carry arms" is limited to weapons "in common
use." (Heller, supra, 554 U.S. at p. 627.) At least one
court has held that Heller does not invalidate the statute
prohibiting the possession of assault rifles. ÝSee People v.
James (2009) 174 Cal.App.4th 662, 676.] Moreover, in Heller,
the United States Supreme Court did not strike down neutral
licensing and registration as a condition of possession and
the Court also enumerated examples of presumptively valid
government regulation of firearms. Thus, there appear to be
no Second Amendment issues with the provisions of this bill.
5)Legislative Counsel Letter : According to the Legislative
Counsel Bureau, "An issue is raised whether there provisions
would constitute a taking without just compensation in
violation of the Fifth Amendment to the United States
Constitution and Section 19 of Article I of the California
Constitution."
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6)Regulatory Process : On June 21, 2012, a coalition of gun
violence prevention groups, including the Brady Center to
Prevent Gun Violence, the Law Center to Prevent Gun Violence,
the Violence Policy Center, and the Violence Prevention
Coalition of Greater Los Angeles, sent a letter to Attorney
General Kamala Harris. This letter was also copied to this
committee. The letter reads, in part:
"The current regulations run counter to the intent of
California's assault weapons law and undermine its
effectiveness. The bullet button facilitates precisely the
sort of quick reloading- and potential for mass mayhem- that
the California assault weapons ban prohibits. Moreover, since
the regulations classify billet 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 weapon features (folding or telescoping
stock, flash suppressor, pistol grip, etc.).
"The continued sale of firearms equipped with bullet buttons is
the result of regulations adopted by the Department of Justice
under another Attorney General. As a result, we believe it
makes sense for your administration, with the rich technical
expertise your staff possesses, to confront this issue though
the regulatory process."
7)Prior Legislation :
a) SB 23 (Perata), Chapter 129, Statutes of 1999, made it
an alternate felony/misdemeanor, commencing January 1,
2000, for any person to manufacture or cause to be
manufactured, import into California, keep for sale, offer
or expose for sale, give away, or lend any large-capacity
magazine with specified exceptions.
b) AB 2728 (Klehs), Chapter 793, Statutes of 2006, made the
possession of unregistered assault weapons and .50 BMG
rifles in violation of the Penal Code a nuisance, allowing
for their destruction.
REGISTERED SUPPORT / OPPOSITION :
Support
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None
Opposition
American Arms Group, Inc.
Calguns Foundation
California Association of Federal Firearms Licensees
California Association of Firearm Retailers
California Rifle and Pistol Association, Inc.
Gun Owners of California
National Rifle Association
National Shooting Sports Foundation
Taxpayers for Improving Public Safety
2 Private Individuals
11,072 Electronically Generated Unsigned Letters (See
www.StopSB249.com )
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744