The "presumption of inseverability" mentioned in Springfield is, at
best, "a weak one." (See Sutherland, supra, sec. 44.09, p. 526.)
Nonetheless, the conclusion reached by Springfield is sound. Here the
object was to regulate those semiautomatic guns which posed the greatest
"threat to the health, safety, and security of" Californians (sec.
12275.5) and the Legislature knew this could not be done with a bare
list. Strong objections to this type of law exist. (See Kleck, Targeting
Guns: Firearms and Their Control (1997) Search for 'Bad' Guns, pp.
111-112 ["this severely limits the impact of regulation by allowing an
ample supply of legally available semiautomatic models to be substituted
for the handful of banned models"]; Thompson, supra, 17 Fla.St.U.L.Rev.
at pp. 667-668 ["While this form of regulation may achieve its goals
initially, it will become less and less effective and require constant
attention"].) Gun-control supporters have pointed out that creating a
list "is problematic. 'If the real difference between an AK-47 [sic] and
other semi-automatic firearms is only the people who are using the AK-47
this month,' asks law professor Franklin Zimring of the University of
California, Berkeley, 'what is to stop them from switching to other
semi-automatic weapons?' . . . Since a criminal can switch weapons far
more easily than a legislature can add weapons to a list, it makes more
sense to use some of the BATF [objective] standards to determine which
weapons should be subject to the ban." (Abrams, Ending the Other Arms
Race: An Argument for a Ban on Assault Weapons (1992) 10 Yale L. & Pol'y
Rev. 488, 498-499, fn. omitted; Lenett, supra, 20 Dayton L.Rev. at p.
604 ["for a truly effective ban, it is not enough for Congress just to
list the prohibited weapons, no matter how long [the] list"].)
     Although it is not given to us to decide that the Legislature would
(or should) have heeded these and other objections, had the Legislature
known the add-on provisions would not be sustained, it might have chosen
to adopt another proposal considered before passage of the Act, such as
creating an assault weapon commission, regulating all semiautomatic
weapons, or all but a specified list, or doing nothing pending further
study. We agree with the Sixth Circuit's conclusion in Springfield that
stripping from the Act "the only element that brings any generality to
the measure," militates strongly against a finding of severability.
Although a skeletal structure might remain, we are not "confident" that
the Legislature would have proceeded in this manner.
     However, the Act has an uncodified severability clause: "If any
provision of this act or the application thereof to any person or
circumstances is held invalid, that invalidity shall not affect other
provisions or applications of the act which can be given effect without
the invalid provision or application, and to this end the provisions of
this act are severable." (Stats. 1989, ch. 19, sec. 4, p. 69.) The
presence or absence of such a clause is but informative, not
dispositive, on the question of intent. (1 Cooley's Constitutional
Limitations (8th ed. 1927) Declaring Legislative Acts Unconstitutional,
p. 368; Sutherland, supra, sec. 44.08, pp. 521-522.) The effect of this
clause is to compel severability if the remainder of the Act has "any
utility." It provides that we must sustain provisions "which can be
given effect" without reference to the invalid provisions. Here the
remaining portions of the Act, although substantially emasculated, "can
be given effect." In the circumstances of this case the severability
clause is sufficient to salvage the remainder of the Act.
V.
     The trial court rejected Kasler's equal protection claims. This was
error. Kasler stated a viable claim for relief.
A.
     We emphasize that we must accept as true the facts stated in the
complaint and judicially noticeable, not arguments and conclusions of
law. (Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 329.)
     Kasler's complaint alleges the Act is underinclusive because it
does not list weapons which have the same or greater rate of fire and
capacity for firepower nor weapons identical to weapons on the list.
     First, the complaint alleges the Act omits from the list guns which
are "functionally indistinguishable" from guns on the list, or
"indistinguishable (vis à vis the Act's rationales) [from] the arms
listed." For example, the Heckler and Koch PSG-1 sniper rifle (listed)
fires the standard NATO 7.62 millimeter cartridge (".308 Winchester")
and uses a five-round magazine. However, the Communist-bloc Dragunov SVD
sniper rifle (not listed) fires "the Russian 7.62 x 54 high power
military cartridge" or "the old military 7.92x57 mm., though it may also
be, or have been available in .308 Winchester." Several other examples
are stated in the complaint.
     Second, the complaint alleges some guns omitted from the list are
identical to guns on the list. In later pleadings, but not the
complaint, this category is referred to as "clones." For example, the
Springfield BM-59 is on the list, but the Act omits "the Beretta BM-59
rifle of which the Springfield is an identical copy . . . . The Beretta
BM-59 is made by the Beretta company in Italy; the Springfield BM-59 is
imported by Springfield from Italy and sold under its own name."
(Original emphasis.) Incorporated into the complaint is a memorandum
prepared for the Attorney General by the Assistant Director of the
Investigation and Enforcement Branch of the Department of Justice,
purporting to outline the legislative process resulting in the Act but
also relating specific factual allegations. It emphasizes that there
are weapons "exactly the same as weapons on the list . . . only the
company name on the receiver is different." We also observe that the
current version of the booklet mandated by section 12276.5 cautions
that "the Springfield Armory BM-59 has the specified markings and is an
'assault weapon' pursuant to California law. However, the Springfield
Armory M1A, which appears to be almost identical but has different
identification markings, is not specified as an 'assault weapon.'"
(Cal.Atty.Gen., Assault Weapons Identification Guide (April 1993)
Foreword, p. iv.) At oral argument and in his brief Kasler fleshed out
the "clone" category as follows: "If the banned Colt and the 18
unregulated [AR-15] clones are disassembled into a common container, 19
'new' rifles can be reassembled willy-nilly from the jumble of
interchangeable, indistinguishable parts. The only parts which are
distinguishable . . . are the receivers, and that only because they
bear the firearm's name."
     The complaint pleads "all detachable magazine firearms have the
same capacity [for firepower]." For example, "The AR-15 Sporter and
Ruger [Mini-14/30 series rifles] come with 5-round magazines, but
another manufacturer's 30-round magazine is designed to fit both
interchangeably; various manufacturers sell different 30, 60, or more,
round magazines for all three." Further, "The one major distinction
between most semi-automatic (and other) hunting arms and most of the
arms classified by the Act [as assault weapons] is that the latter are
much less deadly to human beings. This is because the arms classified
in the Act [except a few] are calibered for down-powered current
military ammunition or the even less deadly ammunition of pistols.
Military ammunition is designed to maximize wounding, not killing, in
deference to the Laws of War and to less humane logistical
considerations." There is support for this claim in the fact that,
generally speaking, international law bans weapons which cause
"superfluous injury." (See Parks, Joint Service Combat Shotgun Program
(Oct. 1997) Army Lawyer 16, 18.)
     The complaint pleads the listed guns are not disproportionately
used in crime, and although, as stated above, there is academic support
for this claim, we do not enter into that debate.
     To establish the fallacy of classifying weapons based on their
subjective "dangerous" or "ugly" appearance, the complaint pleads that
"The arms classified by the Act differ cosmetically from older civilian
hunting arms (many of which are also semi-automatic) in being designed
and fabricated with modern materials like high-strength plastic. While
these modern arms may be less aesthetic, these materiel and design
changes result in increased durability, ruggedness and simplicity of
design which make these arms superior for hunting, camping, Olympic
biathlon competition, and for farmers, ranchers and others desiring arms
for pest and predator control." The complaint includes pictures which
demonstrate that many guns not on the list are as "military" or
"menacing" in appearance as listed guns.
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