By James O. Bardwell
In Kasler v. Lungren, released March 4, 1998, a panel of judges from the California Court of Appeals, Third District, struck down part of the Roberti-Roos assault weapon ban as unconstitutional, and indicated that the rest of the law would likely be found unconstitutional after the case was remanded to the trial court for further proceedings.
The suit was brought by several plaintiffs, including California attorney and author Peter Alan Kasler, and Colt’s Manufacturing Company, partly in response to an attempt by the California Attorney General to use one of the law’s provisions to add the Colt Sporter rifle to the list of banned weapons.
Unlike the federal assault weapon ban law, the California law bans only a list of named models of weapons, and has a mechanism for the Attorney General to petition a court to add specified weapons to the list, based on their similarity to the weapons already listed by the Legislature. In addition to a list of banned guns, the definition in the federal law (18 U.S.C. section 921(a)(30)) has a criteria test, any weapon possessing certain features is also banned. Many state and local laws also have a two part definition of what is an assault weapon, listing both specific guns as well as certain characteristics which bring a gun into the definition.
The Court found that the procedure for judges to add guns to the ban list, based on a petition from the Attorney General, to be unconstitutional. The Court mentioned several problems with the scheme, but the main problem was having judges add weapons to the ban list violated the doctrine of separation of powers created by the California constitution. As a general rule, California government is supposed to be composed of three separate, co-equal branches, an executive branch, a legislative branch and a judicial branch. Having judges performing a legislative function, by deciding which guns should be banned, was not permissible in this case.
The Court also noted that the law provided for a time period when a gun would be temporarily included in the list, but when no notice of the inclusion was required to be given. While the Attorney General could petition a court to add a gun to the ban list, and the court could then temporarily add the gun, the Attorney General was not required to publish notice of the decision before it became effective, nor was he required to immediately publish the revised list of banned guns. This failure to require notice to the public of which guns are banned creates a constitutional due process problem, which the Court found was also fatal to the “add-on” provisions of the law.
The Court also found the criteria for guns to be added to the list to be impermissibly vague; the law only refers to weapons which are “slight modifications” of listed guns, or which have been “redesigned, renamed or renumbered” from listed guns as those which can be added by a court. The Court did not see how anyone could rationally decide whether a modification was slight, or whether a gun was redesigned from another, listed, gun.
The Court decided that this unconstitutional “add-on” section was severable from the remainder of the Roberti-Roos law; declaring this section was unconstitutional did not cause the remainder of the law to be void as well. This first conclusion was unanimous, with all three judges in agreement.
With two of the judges agreeing, one dissenting, the Court also decided that the trial court’s rejection of the plaintiffs equal protection argument was mistaken, and remanded that issue to the trial court for further fact finding.
The Court refused to find that banning guns based on military appearance alone was irrational, saying there was some basis for the Legislature to decide that a scary appearance made the guns more intimidating to victims when used for criminal purposes, or the military appearance may give the guns more appeal to persons with criminal inclination.
The plaintiffs argued that banning some guns, and not banning others that are indistinguishable from the banned guns, violates the equal protection clauses of the California and U.S. Constitutions. In particular, they asserted that some listed guns had identical or functional copies that were not listed; they pointed to the ban on the Heckler and Koch PSG-1 sniper rifle, but no ban on the Communist-Bloc Dragunov SVD sniper rifle, or the ban on the Springfield BM-59, but no ban on the Beretta made BM-59. They also noted that the Springfield M1A was almost identical in appearance and function to the Springfield BM-59, but was not banned either. And with AR-15 style rifles, the law only bans ones marked Colt AR-15, while literally identical copies from several other makers were not banned.
The Court noted that while the Legislature did not have to make an exhaustive list, and could act one step at a time to address the perceived problem, in this case there was evidence the Legislature consciously elected to exclude some weapons with identical features to banned guns. Apparently they feared that some guns, the M-1 Carbine, the M-1 Garand and the Ruger Mini-14 in particular, had too large a constituency to ever be worth the political risk of banning, even though they had exactly the same capacity for heavy firepower that was cited as the basis for banning the listed guns. Further, the add-on section, even if it were not unconstitutional, was too limited in scope to cure the defect in the law, in that it did not allow the addition of many weapons that met the statute’s stated basis for inclusion.
The Court indicated that if the plaintiff’s allegations were true then the law violated the equal protection rights of persons affected by the law, and the law would be unconstitutional. However, since the trial court had refused to consider this issue, the appeals court remanded the case to the trial court for consideration of these allegations.
What does this decision mean? It only affects the California law, and not the federal law, nor any local laws based on the California law. I would expect the State to appeal this decision to the California Supreme Court, which could overturn it; this decision is not final. I think this decision makes it even more likely that the list of banned guns contained in the federal assault weapon ban will be struck down as unconstitutional when a court finally addresses the issue.
|This article first appeared in Small Arms Review V1N8 (May 1998)