The complaint alleges the most popular semi-automatic rifles (Ruger
Mini 14, M1 Carbine and M1 Garand) were omitted from the list,
notwithstanding their functional equivalence to rifles placed on the
list. "The effect of the Act has not been a reduced market in 'assault
weapons,' but only to give Ruger a virtual monopoly in the most popular
single caliber (.223)." Other guns which cannot be added on because of
limitations in the add-on provisions could be built and marketed though
they, too, are "functionally identical to" listed guns.
B.
     The equal protection guarantees of our state constitution are
contained in three provisions which parallel federal equal protection
rights afforded by the Fourteenth Amendment. (See Cal. Const., art. I,
sec. 7, subds. (a) [equal protection] and (b) [privileges and
immunities] and art. IV, sec. 16, subd. (a) [uniformity of laws];
Steffes v. California Interscholastic Federation (1986) 176 Cal.App.3d
739, 745-746, & fn. 2.) There being no claim of a so-called "suspect
classification" calling for "heightened scrutiny," we apply the
rational basis test, whereby "legislation is presumed to be valid and
will be sustained if the classification drawn by the statute is
rationally related to a legitimate state interest." (Cleburne v.
Cleburne Living Center (1985) 473 U.S. 432, 440 [87 L.Ed.2d 313, 320].)
"The Equal Protection Clause does not forbid classifications. It simply
keeps governmental decisionmakers from treating differently persons who
are in all relevant respects alike. [Citation.]" (Nordlinger v. Hahn
(1992) 505 U.S. 1 [120 L.Ed.2d 1, 12].) In a case considering the three
state constitutional provisions the California Supreme Court explained:
"None of those constitutional principles is violated if the
classification of persons or things affected by the legislation is not
arbitrary and is based upon some difference in the classes having a
substantial relation to the purpose for which the legislation was
designed. [Citations.] A law to be general in its scope need not
include all classes of individuals in the state. Nor is a
classification void because it does not embrace within it every other
class which might be included. [Citations.] Wide discretion is vested
in the Legislature in making the classification and every presumption
is in favor of the validity of the statute; the decision of the
Legislature as to what is a sufficient distinction to warrant the
classification will not be overthrown by the courts unless it is
palpably arbitrary and beyond rational doubt erroneous." (Sacramento M.
U. Dist. v. P. G. & E. Co. (1942) 20 Cal.2d 684, 693.)
     The tenor of Kasler's complaint is that the facts alleged therein
are superior to the facts found by the Legislature. "But States are not
required to convince the courts of the correctness of their legislative
judgments. Rather, 'those challenging the legislative judgment must
convince the court that the legislative facts on which the
classification is apparently based could not reasonably be conceived to
be true by the governmental decisionmaker.' [Citations.] [¶] Although
parties challenging legislation under the Equal Protection Clause may
introduce evidence supporting their claim that it is irrational,
[citation] they cannot prevail so long as 'it is evident from all the
considerations presented to [the legislature], and those of which we
may take judicial notice, that the question is at least debatable.'
[Citation.] Where there was evidence before the legislature reasonably
supporting the classification, litigants may not procure invalidation
of the legislation merely by tendering evidence in court that the
legislature was mistaken." (Minnesota v. Clover Leaf Creamery Co.
(1981) 449 U.S. 456, 464 [66 L.Ed.2d 659, 668-669], fn. omitted.)
     However, when the Legislature chooses to draw lines, that is,
"discriminate" within a given class, the discrimination must be rational
in light of the harm to be alleviated. (Hays v. Wood (1979) 25 Cal.3d
772, 791.) More particularly, as stated by Justice Robert Jackson, "A
classification is reasonable, however, only if there are differences
between the classes and the differences are reasonably related to the
purposes of the statute. [Citations.] 'As a matter of principle and in
view of my attitude toward the equal protection clause, I do not think
differences of treatment under law should be approved on classification
because of differences unrelated to the legislative purpose. The equal
protection clause ceases to assure either equality or protection if it
is avoided by any conceivable difference that can be pointed out between
those bound and those left free. This Court has often announced the
principle that the differentiation must have an appropriate relation to
the object of the legislation or ordinance. [Citations.]' (Mr. Justice
Jackson, concurring in Railway Express Agency v. New York [1949] 336
U.S. 106, 115 [69 S.Ct. 463, 93 L.Ed. 533].)" (Werner v. Southern Cal.
etc. Newspapers (1950) 35 Cal.2d 121, 131-132, quotation approved in
Hays v. Wood, supra, 25 Cal.3d at pp. 786-787.) Therefore, we must
conduct a "'serious and genuine judicial inquiry'" into the
correspondence between the classification and the legislative goals.
(Id. at p. 787.)
     In this case the Legislature has identified two dangers associated
with so-called "assault weapons," namely a high rate of fire and a high
"capacity for firepower." Kasler pleads that other semi-automatic guns
have equal or greater rates of fire and capacity for firepower, yet they
were left off the list. Thus, he has pleaded that, with respect to the
harm to be alleviated, the Legislature acted irrationally. As expressed
with a more familiar example in Kasler's brief, "Drunken driving clearly
menaces public safety. Yet it would clearly be irrational to ban drunken
driving of a Toyota Corolla, Dodge Caravan, Ford Probe, Mazda Navajo or
Chrysler Concorde while allowing it in their respective twins, the Geo
Prizm, Plymouth Voyager, Mazda MX-6, Ford Explorer, Dodge Intrepid and
Eagle Vision."
     Arguably, although not included within the express statement of
legislative intent behind the Act, in part, the harm herein is one of
perception - that so-called "military style" weapons, meaning the "ugly"
or "notorious" ones, are bad and the others are good. It is the
recurrent theme of the complaint that a classification based on
perception of evil is impermissible. We disagree. The Legislature bears
the onerous duty of maintaining a system of laws which will protect the
citizens of this State from a limitless horizon of evil. Violent
criminals do not always act rationally. A robber may choose a
semiautomatic Uzi pistol for no other reason than that it looks
"uglier" than a functionally identical Smith and Wesson or Sig Sauer
police-issue handgun. The rate of fire and capacity for firepower of
the two may be the same; indeed, the Uzi may be less accurate, less
concealable and more cumbersome in the felon's hands. But he may choose
the Uzi nonetheless because it makes him feel powerful and because his
victims may fear the Uzi more than an "ordinary" semiautomatic weapon.
"Such weapons afford their users a sense of power and, in fact, enhance
the dangerousness of such persons." (Yarvis, A Psychological Autopsy,
App. A, p. 12, in Kempsky & Binkerd, Report to Attorney General, supra;
see Cal.Atty.Gen., Assault Weapons: Background Paper (Feb. 1989) pp.
3-4 ["They are glamorized in ways that particularly appeal to young
men, who make up the overwhelming majority of criminals. The sense of
power conveyed simply by owning one of these weapons is heady"]; Long,
Assault Pistols, supra, at p. 8 [noting the "Walter Mitty" appeal of
semiautomatic versions of machine guns].)
     In short, perceptions matter, and the Legislature is free to draw a
distinction between otherwise mechanically identical weapons because, in
its collective judgment, some were meaner-looking than others, as the
complaint pleads: "The 'assault weapons' list seems to have been
compiled by selecting from a picture book firearms which, it was felt
looked 'bad.'"
     But liberally construed, Kasler pleads (pictorially and otherwise)
that some guns are equally "mean looking" and that others are physically
identical. In other words, even assuming that "ugliness" constitutes an
unstated but valid "harm" the Legislature sought to alleviate, the Act
defies rationality.
     As indicated, the term "assault weapon" itself adds nothing to our
discussion because a gun only becomes an "assault weapon" by virtue of
its inclusion on the assault weapons list, not because of any objective
quality that discriminates between "assault weapons" and other
semiautomatic guns.
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