First, the Act deprives citizens of notice of the law because there
is a temporal gap between the declaration of suspension and publication
of notice thereof. During that period of time the Act treats the gun as
an "assault weapon," meaning a person could be a felon for lending it to
a fellow hunter. (sec. 12280, subd. (a)(1); cf. sec. 12280, subds.
(b)(e) [simple possession is generally not a crime until 90 days after
the gun "was specified as an assault weapon"].) But at that moment in
time, the new "list" has yet to be published to the world. There is
literally no "notice" of the law. Once the court issues a permanent
declaration that the firearm is an "assault weapon," the Attorney
General must promulgate and forward to the Secretary of State for
publication a new list of guns. (sec. 12276.5, subd. (h).) The new
"list" is effective before it is published. This is intolerable. The
Attorney General assures us that a person in such a situation would not
be prosecuted, and posits that peace officers could always ask suspects
whether or not they knew of the temporary suspension, and suggests that
a court reviewing a conviction under these circumstances would construe
the statutes as requiring actual notice of the suspension. With
respect, this pledge of nonprosecution, however earnestly given, does
not satisfy a citizen's right to notice of the law. History teaches
that "Trust us" is no guarantee of due process.
     Second, the Act is vague because it defines the weapons which can
be added on as those with "slight" modifications and those which have
been "redesigned, renamed, or renumbered" from guns on the list. (sec.
12276.5, subd. (a)(1)(2).) Reasonable persons can understand renaming
and renumbering. But what is a "slight" modification, or a "redesign?"
Shortening a barrel would probably be both a "slight" modification and a
"redesign." But what if a manufacturer used the same lower receiver, but
changed the barrel, grip, magazine and caliber? How is an ordinary
person supposed to know that a completely different-looking gun
inspired the designer into creating the new gun? How is a reasonable
person supposed to know the genealogy of the weapon? (See Robertson,
supra, 874 P.2d at pp. 334-335 ["we are not persuaded that simply
because publications exist which contain the information needed to
establish the design history of a pistol, that this saves [part of a
Denver, Colorado, ordinance] from being vague. Whether persons of
ordinary intelligence must necessarily guess as to an ordinance's
meaning and application does not turn on whether some source exists for
determining the proper application of a law"]; Springfield, supra, 29
F.3d at pp. 252-253; cf. Richmond Boro Gun Club Inc. v. City of New
York (2d Cir. 1996) 97 F.3d 681, 683-685 [objective ordinance not
vague].)
     We reject the claim that "assault weapon" owners are always on
notice about the potential for an "add-on" because guns are heavily
regulated. (See Staples v. United States (1994) 511 U.S. ___ [128
L.Ed.2d 608, 618-622] [rejecting similar claim because of long
tradition of lawful gun ownership in this country].)
C.
     Severability is a murky subject. Generally speaking, "The problem
is twofold: the legislature must have intended that the act be
separable, and the act must be capable of separation in fact." (2
Sutherland, Statutory Construction (5th ed. 1993) Separability, sec.
44.03, p. 495, fn. omitted.) We have little trouble with the latter
point: Structurally, a list coupled with an enforcement mechanism
(registration and penal provisions) would remain, thus the Act is
physically or grammatically severable. It is the former requirement,
which is usually the second analytical step (People's Advocate, Inc. v.
Superior Court (1986) 181 Cal.App.3d 316, 330), which is doubtful. Many
cases fail to articulate that requirement because usually the defective
part of a law is so clearly unimportant with respect to the statute as
a whole that the point is not arguable and the court simply articulates
the first step (grammatical severability) and the conclusion. However,
"[t]he law enforced after separation must be reasonable in light of the
act as originally drafted." (Sutherland, supra, sec. 44.04, p. 502.)
"If by sustaining only a part of a statute, the purpose of the act is
changed or altered, the entire act is invalid." (Id., sec. 44.07, p.
518, fn. omitted.)
     In California the test has been stated in several ways, including:
"whether the invalid parts of the statute can be severed from the
otherwise valid parts without destroying the statutory scheme, or the
utility of the remaining provisions. [Citations.]" (Blumenthal v. Board
of Medical Examiners (1962) 57 Cal.2d 228, 238.) A casual reading of
this case and others like it would suggest that if any utility remains
in the redacted statute, it is severable. (See also Santa Clara County
Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 261.)
Indeed, one might be tempted so to find, under the often enunciated but
rarely examined "principle" that there is a presumption in favor of a
finding of severability. But this obscures the proper analysis of the
second, "intent" step. If a redacted statute has no utility, it is
unreasonable to suppose that the Legislature would have passed it, for
we presume the Legislature does not engage in idle acts. (Stafford v.
Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805; see Civ. Code,
sec. 3532.) Utility is thus a necessary condition to a finding of
severability. But it does not suffice.
     The correct analysis is more complex: "Deletion of the challenged
provision would leave a coherent amended statute complete in itself, but
the critical inquiry is whether the Legislature would have adopted the
entire amendment had it foreseen the partial invalidity thereof?
[Citation.]" (People v. Navarro (1972) 7 Cal.3d 248, 260; see In re Bell
(1942) 19 Cal.2d 488, 497-498.) While discussing whether an initiative
was severable, we said "the provisions to be severed must be so
presented to the electorate in the initiative that their significance
may be seen and independently evaluated in the light of the assigned
purposes of the enactment. The test is whether it can be said with
confidence that the electorate's attention was sufficiently focused
upon the parts to be severed so that it would have separately
considered and adopted them in the absence of the invalid portions."
(People's Advocate, Inc., supra, 181 Cal.App.3d at pp. 332-333, italics
added, approved in Gerken v. Fair Political Practices Com. (1993) 6
Cal.4th 707, 714-715, (lead opn. of Lucas, C.J.) and Calfarm Ins. Co.
v. Deukmejian (1989) 48 Cal.3d 805, 821-822.) The test is not whether
it is reasonable to suppose the Legislature would have acted in a
certain way. Supposition or speculation does not suffice. We should not
presume to state what the Legislature would have done unless we can do
so "with confidence."
     The Sixth Circuit was faced with a similar task when reviewing a
law modeled after the Act. The original Columbus, Ohio, ordinance
contained a list of weapons, and included "Other models by the same
manufacturer with the same action design that have slight modifications
or enhancements" of guns on the list. (See Springfield Armory, Inc. v.
City of Columbus (S.D. Ohio 1992) 805 F.Supp. 489, 491.) After
invalidating the "slight" modification provision as vague, the Sixth
Circuit declined to leave the list intact: "The legislation does not
include a severability clause. We have no way to know whether the local
legislature would have enacted the assault weapons ban without the
'slight modifications' provision. [Citations.] Apparently the city
council simply copied the ordinance from a California ordinance. Here,
the catch-all phrase is the only element that brings any generality to
the measure. The provision seems integral to the ordinance since
without it manufacturers could circumvent the ban by merely changing
the names of the listed weapons. In view of the arbitrary nature of the
ordinance and the historical presumption of inseverability in the
absence of a severability clause, we conclude that we should not try to
save the assault weapon portion of the ordinance but rather that we
should leave it to the local legislature to draft another ordinance
that does not suffer from the same defects as this one. [Citations.]"
(Springfield, supra, 29 F.3d at p. 254; cf. Robertson, supra, 874 P.2d
at p. 335 [severability clause present, minor part of ordinance vague,
held: rest of ordinance severable].)
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