Combat Arms BBS
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                               rmbash@iupui.edu
                                 March 5, 1998
                                 Filed 3/4/98
                           CERTIFIED FOR PUBLICATION
               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                           THIRD APPELLATE DISTRICT
                                 (Sacramento)
                           PETER ALAN KASLER et al.,
                          Plaintiffs and Appellants,
                                      v.
             DANIEL L. LUNGREN, as Attorney General, etc., et al.
                          Defendants and Respondents.
                                    C017769
                           (Super. Ct. No. CV519977)
APPEAL from the judgment of the Superior Court of Sacramento County.
Ronald B. Robie, Judge. Reversed and remanded.
Benenson and Kates, Don B. Kates, Stephen P. Halbrook, and C. D. Michel,
for Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Paul V. Bishop, John A. Gordnier
and Tim L. Rieger, Deputy Attorneys General, for Defendants and
Respondents.
Melveny and Myers, John A. Crose, Jr., Robert C. Vanderet, Charles C.
Lifland, Jennifer L. Isenberg, Dennis A. Henigan and Mark D. Polston,
Amici Curiae for Defendants and Respondents.
I.
     This appeal challenges the Roberti-Roos Assault Weapons Control Act
of 1989 (the Act) (Pen. Code, sec. 12275 et seq., further unspecified
section references are to this Code). The trial court sustained a
demurrer without leave to amend except as to one cause of action,
regarding a particular model of rifle (the Colt Sporter), which
plaintiffs (Kasler) declined to amend. We reverse with directions.
     This appeal is not about the competing, earnest, views of those who
wish to ban guns and those who wish to own and lawfully use them. The
parties "have submitted materials concerning the desirability of weapons
control, and the effect of weapons control on crime rates. It is well
established that the wisdom of legislation is beyond the competence of
the court [citation]; that for a court to invalidate legislation based
on the usefulness or desirability of the law, the law must be not only
unwise but unrelated to any legitimate governmental purpose [citation].
The arguments made in this connection, although of possible interest to
the Legislature, are without merit in this court." (People v. Galvan
(1969) 70 Cal.2d 851, 869.) It is not within our province as judges to
determine whether regulating guns in general, or some or all
semiautomatic guns in particular, will be "good" or "bad" for
California. That is a determination about social policy which the
People must make, directly by initiative or through their elected
representatives. Our function is to determine whether the complaint
competently alleges constitutional flaws in the method chosen by the
Legislature to regulate certain guns. We conclude that it does.
     The Act consists of a list by make and model of banned guns and a
mechanism by which the judiciary is allowed to add guns to the list.
This mechanism (the "add-on" provision) violates the separation of
powers doctrine and the due process of law. Although this provision
seems central to the purpose of the Act, and it seems unlikely that the
remainder of the Act would have been passed without it, the Act contains
a severability clause which insulates the remaining portions of the Act.
However, the remainder of the Act is vulnerable to Kasler's equal
protection challenge. The facts alleged in the complaint, if true,
establish that the "list" method employed by the Act violates equal
protection because it does not rationally distinguish between owners of
regulated and unregulated guns who are identically situated with respect
to the harm sought to be alleviated. Because this case arises on
demurrer, the case must be remanded for a trial on these allegations in
the complaint. Other counts as to which the demurrer was sustained have
been abandoned by the failure to defend them on appeal.
II.
     To place the Act in perspective, we begin with a brief discussion
about the mechanics of guns and gun laws.
A.
     Some guns can fire more than once without the need to break open
the action, utilizing some device to feed ammunition to the chamber. The
simplest family within this class consists of bolt-action, lever-action
and pump-action guns which feed cartridges into the chamber as fast as
the shooter operates the action. An example would be the classic
Winchester rifle. Another family in this class is the "self-loading"
gun, which typically uses the recoil or expanding gas of a gunshot to
work the action: After a cartridge is fired, the gun reloads itself
with the next cartridge in the magazine or belt. There are two kinds of
self-loading guns. Machine ("automatic") guns fire until the ammunition
is exhausted or the shooter releases the trigger. Semiautomatic guns
reload themselves after each shot is fired, but the trigger must be
pulled each time the shooter fires.
     Some machine guns are "selective fire" guns, meaning that with the
flip of a lever the gun can be fired as a machine gun, or limited to
firing as a semiautomatic gun. According to the late Edward Ezell,
Curator of the National Firearms Collection of the Smithsonian
Institution, the first "assault weapon" was the selective fire German
Sturmgewehr series, introduced in World War II, which was designed to
fire a shorter, less powerful, cartridge and projectile than existing
rifles. (Ezell, Small Arms of the World (12th. ed. 1983) pp. 16-17,
514-516; Ezell, Small Arms Today (2d ed. 1988) p. 457; Encyclopędia
Britannica CD 97 ["Technology of War," "Assault Weapon," articles by
Ezell].) The selective fire function, the ability to fire both
semi-automatic or full automatic, is a generally accepted feature of an
"assault weapon" as far as arms experts are concerned. (E.g., Johnson,
Small Arms Identification and Operation Guide -- Free World (Defense
Intelligence Agency, 4th ed. 1976) pp. 127, 137, 200-201; Long, Assault
Pistols, Rifles and Submachine Guns (1991) pp. 1, 10-15.) Thus, a true
"assault weapon" is a type of machine gun. The Act has nothing to do
with machine guns.
     Semiautomatic guns have been around for over a century.
(Encyclopędia Britannica CD 97 ["Technology of War: Self-loaders"].)
They may be pistols, rifles or shotguns. They can have internal
("integral") magazines or detachable magazines, which can come in many
sizes. Some semiautomatic guns look like or are patterned after machine
guns. For example, the Israeli "Uzi" was designed as a selective fire
machine gun. (Small Arms of the World, p. 122, Small Arms Today, pp.
167, 328.) But there is a semiautomatic version for consumption in the
United States. Similarly, the "AR-15" (Armalite 15) family of rifles
includes the selective-fire "M-16," but also includes semiautomatic
rifles, such as the AR-15 Sporter, generically referred to as "AR-15s"
to distinguish them from M-16s. (Small Arms of the World, pp. 46-47,
747-748.) But many, if not most, semiautomatic guns have no
relationship to automatic guns. Ordinary pistols like the current U.S.
issue M9 nine millimeter series and its predecessor, the M1911 .45
caliber series, are semiautomatic and can accept detachable clips, yet
neither is patterned after an automatic gun. (Small Arms Today, supra,
pp. 393-394; Small Arms of the World, supra, pp. 739-740.)
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