Also unavailing is reference to the uncodified statement of intent,
which states that the guns on the list "are particularly dangerous in
the hands of criminals and serve no necessary hunting or sporting
purpose for honest citizens." (Stats. 1989, ch. 19, sec. 5, pp. 69-70.)
This facially plausible "finding" cannot insulate the Act if the
finding itself is arbitrary and irrational. (See Professional Engineers
v. Department of Transportation (1997) 15 Cal.4th 543, 569, see also
American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307,
349-350 (lead opn. of George, C.J.).) If the allegations of the
complaint are true, the listed guns are no more dangerous in the hands
of criminals than the functionally indistinguishable guns, nor than the
identical (clone) guns. Nor do they have a greater rate of fire,
capacity for firepower, nor pose a greater danger of use "to kill and
injure human beings." (sec. 12275.5)
     We are not the first court to reach such a conclusion. Although the
Sixth Circuit invalidated the Columbus ordinance as facially vague, one
ground of vagueness was irrationality because the ordinance "outlaws
assault weapons only by outlawing certain brand names without including
within the prohibition similar assault weapons of the same type,
function or capability. The ordinance does not achieve the stated goal
of the local legislature--to get assault weapons off the street. The
ordinance purports to ban 'assault weapons' but in fact it bans only an
arbitrary and ill-defined subset of these weapons without providing any
explanation for its selections. Many assault weapons remain on the
market and the consumer is without a reasoned basis for determining
which firearms are prohibited. The ordinance permits the sale and
possession of weapons which are virtually identical to those listed if
they are produced by a manufacturer that is not listed. Thus, the
Springfield SAR-48 is banned but equivalent designs sold by Browning
Arms Company, Paragon Sales and Armscorp are not. The Springfield BM59
is banned but the equivalent Beretta BM59 and BM62 are not banned. The
Colt AR-15 Sporter is banned but not identical weapons sold by
Bushmaster, SGW/Olympic Arms, [and others]. The Ruger Mini-14 rifle,
which shoots .223 caliber cartridges from a detachable box magazine
just like the Colt AR-15 Sporter, is not prohibited. [Citation.]"
(Springfield, supra, 29 F.3d at p. 252.)
     Further, in Citizens for a Safer Community v. City of Rochester
(1994) 164 Misc.2d 822 [627 N.Y.S.2d 193], the court (on summary
judgment) struck down a portion of a local ordinance which named
particular guns: "For example, the Ordinance specifically names the Colt
AR-15A2 carbine, AR-15A2 Delta H-Bar, and AR-15A2 H-Bar. It does not
list the identical Eagle Arms EA-15, Olympic Arms AR-15 [and others]. It
further references the Springfield Armory BM-59 without making reference
to the identical Italian made Beretta BM-59. [¶] . . . If this portion
of the Ordinance was permitted to stand, two citizens could potentially
be treated in a wholly unequal fashion if they possessed identical
AR-15's made by different manufacturers. One would be subject to
imprisonment, fine and loss of property; and the other would not be
breaking the law. Moreover, two manufacturers, each producing identical
weapons, would be treated unequally because one would be able to sell
his weapons within the City of Rochester and the other would not. [¶] .
. . . Therefore, to the extent [the ordinance] names individual
weapons, and excludes others that are identical, it is a violation of
the equal protection clause[.]" (Id. at pp. 837-838, fn. omitted [627
N.Y.S.2d at pp. 203-204].)
     There is a case supporting the Attorney General's position. In
Benjamin v. Bailey (1995) 234 Conn. 455 [662 A.2d 1226] (after a lower
court trial) the Supreme Court of Connecticut agreed with our conclusion
herein that "the record indicates that the banned weapons [on a similar
"list"] cannot meaningfully be differentiated from weapons that are not
banned." (Id. at p. 472 [662 A.2d at p. 1235].) But the Benjamin court
rejected the equal protection challenge on two grounds: First that guns
were not "persons," an argument not tendered herein and which overlooks
the fact that it is the persons who make and own guns who are penalized;
and second because "The plaintiffs, . . . have offered no evidence
whatsoever suggesting that the legislature knew that any of the
unproscribed weapons posed as great a threat to the welfare of the
residents of this state as do the proscribed weapons. [Citations.]" (Id.
at p. 479 [662 A.2d at pp. 1238-1239].) The court applied the familiar
rule that "reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative mind.
[Citation.]" (Williamson v. Lee Optical Inc. (1955) 348 U.S. 483, 489
[99 L.Ed. 563, 573].)
     Amici essentially take this approach in defending the Act against
the equal protection claim. "According to findings made by the
Legislature, the Act restricts the most immediately identifiable
firearms whose high rate of fire and capacity for firepower
substantially outweigh any legitimate sporting or recreational use."
(Italics added.) In other words, the Legislature was not required to
spend its entire session surveying the weapons industry to come up with
a comprehensive list, it was enough to identify a few of the offending
guns and let it go at that. Amici (and, at oral argument, the Attorney
General) state or imply that any imperfection in the law was a result
of ignorance.
     But the complaint alleges that the listed guns are no more
"immediately identifiable," and that the Legislature was not unaware of
the other guns. For example, at a Committee of the Whole hearing of
February 13, 1989, the Legislature was informed of the "severe
definitional problem" regarding "assault weapons," and the Attorney
General appears to concede the Investigation and Enforcement Branch
memorandum accurately summarizes the facts, specifically that the
Legislature was aware of the existence of the very popular Ruger Mini
14, the M1 and M1 Garand, which are not on the "list," purportedly
because they "probably had too large a constituency to ever be worth
the risk of including[.]" Nowhere in the hearing was there any effort
to segregate the guns ultimately "listed" from other semiautomatic
guns, only generic testimony about undefined "assault weapons."
     The Attorney General properly concedes that "the legislature was
also aware that the list of existing Assault Weapons was not exhaustive.
Accordingly it provided a procedure for expanding the list to include
those existing firearms which are a prototype or copy of the firearms
specified on the Assault Weapon list. (sec. 12276.5, subd. (a)(1).)
Other firearms that function like the specified assault weapons but are
primarily designed and intended for legitimate activities were expressly
exempted because the legislature found that they did not pose a similar
threat to public safety.[fn.]" We agree that the Legislature was aware
that the list was not exhaustive and that it accounted for this problem,
or attempted to, via the add-on procedures. Further, since the passage
of the Act in 1989 it has been amended several times, most
significantly in 1991, when the "list" was substantially rewritten.
(Stats. 1991, ch. 954, sec. 2, p. 4440.) This further evidences the
Legislature's knowledge.
     To the extent the Attorney General and amici argue the "add-on"
provision (apart from its own unconstitutionality) would cure
underinclusiveness in the Act we disagree. First, the fact would remain
that the Act is underinclusive as presently structured. Second, the
add-on provision is limited in scope and cannot be used to add all
possible weapons with equal or greater rates of fire and capacity for
firepower; it can only be used to add guns which are identical except
for "slight" modifications and guns which have been "redesigned,
renamed, or renumbered" from guns on the list. (sec. 12276.5, subd.
(a)(1)(2).) But the complaint pleads there are guns which are
functionally equivalent to guns on the list, but are not related to
those guns in any way.
DISPOSITION
     The judgment is reversed and the cause remanded for further
proceedings consistent with this opinion. The stay previously issued is
vacated upon finality of this decision. Plaintiffs shall recover costs
on appeal. (CERTIFIED FOR PUBLICATION.)
                    _____________________, J.
                    MORRISON
I concur:
                    _______________________, P.J.
                    PUGLIA
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