However, the term "assault weapon" has entered the political
lexicon, now meaning a "military-looking" semiautomatic weapon, which is
frequently assumed to be the "weapon of choice" of criminals and also
assumed to be readily convertible into a machine gun. (Kleck, Point
Blank: Guns and Violence in America (1991) pp. 67, 70-72; Cal.Atty.Gen.,
Assault Weapons: Background Paper (Feb. 1989) pp. 2, 4, 9-10; but see
Kopel, Rational Basis Analysis of 'Assault Weapon' Prohibition (1994) 20
J. Contemp. L. 381, 392-393, 404-414 [refuting claims]; Tartaro, The
Great Assault Weapon Hoax (Winter 1995) 20 Dayton L.Rev. 619, 621-636;
Bea, 'Assault Weapons': Military-Style Semiautomatic Firearms (Cong.
Res. Serv. (1992) pp. 3-31, 65-73 [discussing lack of conclusive data].)
B.
     Early gun control laws were directed at oppressed peoples, such as
slaves and freedmen, and the politically powerless, such as immigrants
and religious minorities. (Powe, Guns, Words, and Constitutional
Interpretation (May 1997) 38 Wm. & M. L.Rev. 1311, 1346-1347, 1375-1376;
Kleck, Point Blank, supra, p. 5; Kates, Gun Control: Separating Reality
from Symbolism (1994) 20 J. Cont.L. 353, 370-371; Kates, Handgun
Prohibition and the Original Meaning of the Second Amendment (1983) 82
Mich. L.Rev. 204, 235-239; see Levinson, The Embarrassing Second
Amendment (1989) 99 Yale L.J. 637, 656-657 & fn. 95.) California
followed this pattern shortly after statehood by criminalizing the gift
or sale of any gun to "any Indian." (Stats. 1854, ch. 12, sec. 1, p.
24; see 1 Ann. Pen. Code, sec. 398 (1st ed. 1872, Haymond & Burch).)
Such laws presume the proscribed class is likely to engage in crime.
     Later laws focused on concealed weapons (Stats. 1863, ch. 485, sec.
1, p. 748, repealed 1869-1870, ch. 63, sec. 1, p. 67), loaded guns in
public (secs. 171c, 171d, 12031; accord 2 Edw. III, ch. 3 [1 Stats. at
Large 422] [illegal to ride armed in fairs, "in the presence of
Justices" and so forth]), or in certain cases carrying an unloaded,
unconcealed gun. (E.g., secs. 171b, 12040.)
     In addition to enhancing penalties for the use or possession of a
gun during a crime (e.g., Stats. 1929, ch. 872, sec. 1, pp. 1930-1932;
see also e.g., secs. 12021.5, 12022, 12022.5), the Legislature has found
certain guns are more likely to be used in crime and therefore has
sought to control the guns themselves.
     The Dangerous Weapons Act (now the Dangerous Weapons Control Law)
focuses on guns "capable" of being concealed on the person, and requires
dealers to record sales of such guns. (Stats. 1917, ch. 145, sec. 3, p.
221, sec. 7, pp. 222-224; see sec. 12073.) The presumption is that guns
which can be concealed are more likely to be used in crimes and
therefore a record of sales of such guns deters crime or aids in the
apprehension of criminals.
     Guns are also regulated based on the size of the projectile (Stats.
1895, ch. 202, sec. 11, p. 258 [shotguns greater than a certain gauge];
sec. 12301, subd. (a)(1) [guns "greater than 0.60 caliber" deemed
"destructive devices"]), the amount of ammunition contained (Stats.
1923, ch. 430, sec. 1, subd. 3, p. 1003 [shotguns holding more than six
shells]), or the configuration, such as disguised "cane" guns, and
short-barreled shotguns and rifles (sec. 12020, subd. (a)).
     The entire class of automatic weapons has been severely restricted
in California for many years. (Stats. 1927, ch. 552, sec. 1, p. 938; see
sec. 12200 et seq.) In the National Firearms Act of 1934, the federal
government also elected to impose restrictions, including taxation and
registration, on "destructive" weapons such as machine guns and
sawed-off shotguns. (See United States v. Miller (1939) 307 U.S. 174
[83 L.Ed. 1206]; Hardy & Stompoly, Of Arms and the Law (1974) 51
Chi-Kent L.Rev. 62, 63-64.) This trend was expanded by a provision of
the Omnibus Crime Control and Safe Streets Act of 1968, the Gun Control
Act of 1968, which among other things, limited the importation of guns,
generally speaking, to those deemed suitable for sporting purposes. (18
U.S.C.A. sec. 925(d)(3); see Gun South, Inc. v. Brady (11th Cir. 1989)
877 F.2d 858, 861-862; Report and Recommendation of the ATF Working
Group on the Importability of Certain Semiautomatic Rifles (July 6,
1989).) Such determination is made by the Treasury Secretary, upon
recommendation of the Bureau of Alcohol, Tobacco and Firearms. (See
Thompson, Form or Substance? Definitional Aspects of Assault Weapon
Legislation (1990) 17 Fla.St.U.L.Rev. 649, 658-666 (Thompson).)
     Prior to the Act, statutes rarely named a particular gun, such as a
Florida statute regulating possession of "a pistol, Winchester rifle or
other repeating rifle[.]" (See Watson v. Stone (1941) 148 Fla. 516 [4
So.2d 700, 701].) However, the inclusion of the manufacturer's name was
merely illustrative of the category sought to be regulated, namely
repeating rifles.
     We are unaware of any statute predating the Act which regulates
guns based on a list identified by make and model. Some California
municipalities passed local "assault weapon" ordinances prior to the
Act. Some employed the "list" method. (E.g., former Sacto. City Code,
ch. 48, sec. 48.01.011 et seq., Ord. No. 89-023.) Others defined
"assault weapons" by generic description and illustrative list. (E.g.,
Los Angeles Mun. Code, sec. 55.05 et seq., Ord. No. 164,388
["semiautomatic action, center fire rifle or carbine which accepts a
detachable magazine with a capacity of twenty rounds or more, including
but not limited to the following firearms or their copies . . . "];
Davis Mun. Code, sec. 17-23 et seq., Ord. No. 1508 [similar].) We
express no view on the validity of these ordinances.
     Some statutes, consisting of a list of guns, were passed after the
Act, and are similarly structured. An example is the Columbus, Ohio,
ordinance struck down in Springfield Armory, Inc. v. City of Columbus
(6th Cir. 1994) 29 F.3d 250 (Springfield). Others include a federal
statute, the Violent Crime Control and Law Enforcement Act of 1994, and
a Denver, Colorado, ordinance largely upheld in Robertson v. City and
County of Denver (Colo. 1994) 874 P.2d 325 [29 A.L.R.5th 837]
(Robertson), which ban weapons that fit certain objective descriptions,
such as any semiautomatic gun with a detachable magazine of a certain
size, or with certain features, such as folding stocks, pistol grips,
bayonet mounts, and so forth. (18 U.S.C.A. sec. 921(A)(30); see Lenett,
Taking a Bite Out of Violent Crime (1995) 20 Dayton L.Rev. 573, 602-609;
but see Peoples Rights Organization v. City of Columbus (S.D. Ohio 1996)
925 F.Supp. 1254 [finding much of new Columbus, Ohio, ordinance,
following this pattern, to be vague].) Such objective criteria are
absent from the California Act, to which we turn.
III.
     On January 17, 1989, a mentally disturbed man fired 105 bullets
into a Stockton schoolyard. He killed five children and wounded many
others. He used a semiautomatic rifle, which physically resembled a
Soviet-bloc AK-47, but was not. He then shot himself with a pistol.
(See Kempsky, Report to Attorney General: Patrick Edward Purdy and the
Cleveland School Killings (Oct. 1989) pp. 1-2, App. C, pp. 23-24.) This
animated existing but stalled legislative efforts to do something. But
what?
     According to materials either attached to the complaint or
judicially noticeable, some wanted to ban all semiautomatic weapons.
Others wanted to create a commission which would select which weapons to
ban and which to allow. (See Sen. Bill No. 292 (1989-1990 Reg. Sess.) as
introduced Jan. 26, 1989.) Eventually it was decided to create a list of
semiautomatic guns by make and model. One proposal was to list allowable
guns and ban the rest. This idea was discarded in favor of creating a
list of banned guns.
     Ultimately, the Act was passed. It consists broadly of four parts:
a list of so-called "assault weapons," a mechanism for adding other
guns to the list (apart from legislative amendment), a registration
system, and penal provisions.
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