Kasler v. Lockyer (2000)

Annotate this Case
[No. S069522. June 29, 2000.]

PETER ALAN KASLER et al., Plaintiffs and Appellants, v. BILL LOCKYER, as Attorney General, etc., et al., Defendants and Respondents.

(Superior Court of Sacramento County, No. CV519977, Ronald B. Robie, Judge.)

(The Court of Appeal, Third Dist., No. C017769.)

(Opinion by Brown, J., with George, C. J., Baxter, Werdegar, and Chin, JJ., concurring. Concurring opinion by Mosk, J., with Werdegar, J., concurring (see p. 503). Concurring opinion by Brown, J. (see p. 503). Concurring and dissenting opinion by Kennard, J. (see p. 510).)


Benenson & Kates, Don B. Kates; Stephen P. Halbrook; Michel & Associates, Trutanich Michel, C. D. Michel; and Donald E. J. Kilmer, Jr., for Plaintiffs and Appellants.

Michael Patrick Murray for National Rifle Association of America as Amicus Curiae on behalf of Plaintiffs and Appellants.

Steven Silver for National Rifle Association, California Rifle & Pistol Association, Gun Owners of California, the Second Amendment Foundation and Lawyers Second Amendment Society as Amici Curiae on behalf of Plaintiffs and Appellants.

Richard E. Gardiner and Steven Silver for Law Enforcement Alliance of America as Amicus Curiae on behalf of Plaintiffs and Appellants.

Dan Schultz for Law Enforcement Alliance of America, Congress of Racial Equality, Womens' Safety Alliance, Doctors for Integrity in Police Research, Prosecutors for Responsible Gun Ownership and Lawyers Second Amendment Society as Amici Curiae on behalf of Plaintiffs and Appellants.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Paul V. Bishop, Kevin Holsclaw, John A. Gordnier and Timothy L. Rieger, Deputy Attorneys General, for Defendants and Respondents.

Louise H. Renne, City Attorney (San Francisco), D. Cameron Baker, Deputy City Attorney, Owen A. Clemens; O'Melveny & Myers, John A. Crose, Jr., Robert C. Vanderet, Charles C. Lifland, Jennifer L. Isenberg, Mark D. Polston, Brian J. Siebel and Dennis A. Henigan for Center to Prevent Handgun Violence, California Police Chiefs' Association, California Peace Officers' Association, California State Sheriffs' Association and City and County of San Francisco as Amici Curiae on behalf of Defendants and Respondents. [23 Cal. 4th 477]



In enacting the Roberti-Roos Assault Weapons Control Act of 1989 (Stats. 1989, ch. 19, § 3, p. 64; hereafter AWCA), the Legislature imposed restrictions on a class of semiautomatic firearms it characterized as "assault weapons." (Pen. Code, § 12275 et seq.) fn. 1 The restrictions were necessary, the Legislature found and declared, because each of the semiautomatic firearms designated as an assault weapon had "such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings." (§ 12275.5.) It did not intend, the Legislature stressed, to place restrictions on weapons "primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (Ibid.)

Prior to amendment of the AWCA in 1999 (the 1999 amendments) (Stats. 1999, ch. 129, § 7 et seq.), semiautomatic firearms were designated as [23 Cal. 4th 478] assault weapons by (1) being listed by type, series, and model in section 12276, or (2) by being declared an assault weapon under a procedure set forth in section 12276.5. Under the latter procedure, which is commonly referred to as the add-on provision, certain superior courts, upon petition by the Attorney General, may be called upon to declare a firearm an assault weapon because of its essential similarity to a listed assault weapon. With its 1999 amendments to the AWCA, the Legislature took a third approach to designating assault weaponsdefining them in section 12276.1, subdivision (a) in terms of generic characteristics, for example, a "semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine" and also has a "pistol grip that protrudes conspicuously beneath the action of the weapon." (Id., subd. (a)(1)(A), Stats. 1999, ch. 129, § 7.) It bears repeating that the 1999 amendments were additive in this respect. Neither the list method of designating assault weapons in section 12276 nor the add-on provision of section 12276.5 was abandoned or textually modified by the 1999 amendments. This case arose prior to the enactment of the 1999 amendments, and the parties agree that the 1999 amendments do not render the issues before us moot.

Plaintiffs challenged the constitutionality of the AWCA in a taxpayers' suit to enjoin its enforcement. The trial court sustained a demurrer without leave to amend except as to one cause of action, and when plaintiffs declined to amend, dismissed the action. The Court of Appeal reversed. It held the AWCA unconstitutional on the following grounds: (1) the section 12276 list of assault weapons violates principles of equal protection because it is irrationally underinclusive; (2) the add-on provision of section 12276.5 violates the separation of powers doctrine by delegating legislative power to the courts; and (3) the AWCA violates due process because it is unduly vague and fails to give advance warning of the conduct prohibited by it. We conclude the AWCA does not violate the equal protection or separation of powers doctrines and that the due process claim fails as a facial challenge to the AWCA. Accordingly, we reverse the judgment of the Court of Appeal. In the discussion that follows, we summarize the relevant provisions of the AWCA as we address each of plaintiffs' constitutional challenges. For the convenience of the reader, the full text of the relevant provisions of the AWCA as amended in 1999 may be found in the appendix.

I. Discussion

A. Equal Protection

[1a] In section 12276, the Legislature listed semiautomatic firearmsrifles, pistols, and shotgunsconsidered to be assault weapons, specifying [23 Cal. 4th 479] such firearms by type, series, and model. Plaintiffs contend the AWCA violates the principles of equal protection embodied in the state and federal Constitutions because the Legislature failed to include in the section 12276 list certain weapons that are identical to, or indistinguishable from, listed weapons. The short answer to this argument, the Attorney General contends, is that the equal protection clauses of the federal and state Constitutions protect persons. Guns are things, not persons. Therefore, equal protection principles do not protect guns from unequal treatment.

The Attorney General's analysis finds some support in two recent cases: Benjamin v. Bailey (1995) 234 Conn. 455 [662 A.2d 1226] (Benjamin), and California Rifle & Pistol Assn. v. City of West Hollywood (1998) 66 Cal. App. 4th 1302 [78 Cal. Rptr. 2d 591] (California Rifle). In Benjamin, the Supreme Court of Connecticut, in the course of considering various constitutional challenges to an assault weapons ban, stated: "The equal protection clauses of the federal and state constitutions apply only to 'persons.' [Citations.] The plaintiffs' challenge relates to classifications among weapons, not persons.... Accordingly, the plaintiffs have not raised a claim that falls within the scope of the constitutional guarantee they seek to invoke." (Benjamin, supra, 662 A.2d at pp. 1235-1237, fn. omitted.) In California Rifle, the Court of Appeal reached the same conclusion in upholding a city ordinance banning the sale of "Saturday Night Specials." "The general rule is that persons who are similarly situated in relevant respects must be treated equally by the law. Obviously, a handgun is not a person, and hence there is no constitutional compulsion for a state's laws to treat all handguns alike.... The equal protection clause simply does not protect guns from unequal legal treatment." (California Rifle, supra, 66 Cal.App.4th at p. 1326.)

Holding that only persons, not things, are protected from unequal legal treatment was something of a makeweight in both cases because the courts went on to consider and reject the equal protection challenges on the merits. (See Benjamin, supra, 662 A.2d at pp. 1237-1240; California Rifle, supra, 66 Cal.App.4th at p. 1329.) As the Court of Appeal in this case noted, the argument made by the Attorney General "overlooks the fact that it is the persons who make and own guns who are penalized." The Connecticut Supreme Court in Benjamin acknowledged this point in rejecting the equal protection challenge raised there. "Even if the plaintiffs' argument were construed as an allegation that people who possess a listed firearm are treated differently from people who possess an unlisted firearm, and that this disparate treatment violates principles of equal protection, the plaintiffs would not prevail on the merits of this claim." (Benjamin, supra, 662 A.2d at p. 1237.) Courts not uncommonly refer to issues of equal protection as [23 Cal. 4th 480] involving discrimination among things when they mean discrimination among persons having interests in those things. For example, in Minnesota v. Clover Leaf Creamery Co. (1981) 449 U.S. 456 [101 S. Ct. 715, 66 L. Ed. 2d 659], a case that will be further discussed below, the United States Supreme Court characterized the controversy there as centering on "the narrow issue whether the legislative classification between plastic and nonplastic nonreturnable milk containers is rationally related to achievement of the statutory purposes." (Id. at p. 463 [101 S.Ct. at p. 723], fn. omitted.) We have used such shorthand ourselves. (See, e.g., Cossack v. City of Los Angeles (1974) 11 Cal. 3d 726, 734 [114 Cal. Rptr. 460, 523 P.2d 260] [a ban on pinball games, were it intended to proscribe games of skill, would constitute a denial of equal protection of the laws, "since there would be an arbitrary discrimination against the limited number of games of skill falling within its terms"].)

[2] The shortcut suggested by the Attorney General having turned out to be a blind alley, we must address plaintiffs' equal protection challenge on the merits, and the threshold question we confront is which standard of review applies. "In D'Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1 [112 Cal. Rptr. 786, 520 P.2d 10], we described the two principal standards or tests that generally have been applied by the courts of this state and the United States Supreme Court in reviewing classifications that are challenged under the equal protection clause of the Fourteenth Amendment of the United States Constitution or article I, section 7, of the California Constitution. As the court in D'Amico explained: 'The first is the basic and conventional standard for reviewing economic and social welfare legislation in which there is a "discrimination" or differentiation of treatment between classes or individuals. It manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government; in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality and "requir[es] merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose." [Citation.] ... Moreover, the burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it.' (11 Cal.3d at pp. 16-17, italics in original.) [¶] The court in D'Amico further explained that '[a] more stringent test is applied ... in cases involving "suspect classifications" or touching on "fundamental interests." Here the courts adopt "an attitude of active and critical analysis, subjecting the classifications to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose." [Citation.]' (11 Cal.3d at p. 17.)" (Warden v. State Bar (1999) 21 Cal. 4th 628, 640-641 [88 Cal. Rptr. 2d 283, 982 P.2d 154], fn. omitted.) [23 Cal. 4th 481]

[1b] Although plaintiffs assert the AWCA fails to satisfy even the rational basis test, they contend it should be reviewed under the "intermediate or even strict scrutiny standards of legal review" because "portions of the [AWCA] touch upon [an] express fundamental constitutional right." This fundamental right plaintiffs locate in article I, section 1 of the California Constitution, which provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." If plaintiffs are implying that a right to bear arms is one of the rights recognized in the California Constitution's declaration of rights, they are simply wrong. No mention is made in it of a right to bear arms. (See In re Rameriz (1924) 193 Cal. 633, 651 [226 P. 914, 34 A.L.R. 51] ["The constitution of this state contains no provision on the subject"].) Moreover, "[i]t is long since settled in this state that regulation of firearms is a proper police function." (Galvan v. Superior Court (1969) 70 Cal. 2d 851, 866 [76 Cal. Rptr. 642, 452 P.2d 930].) We reject any suggestion that the regulations at issue here impermissibly infringe upon the right to defend life or protect property guaranteed by the California Constitution.

Therefore, as the AWCA does not burden a fundamental right under either the federal or the state Constitutions, the rational basis test applies. (See Peoples Rights Organization, Inc. v. City of Columbus (6th Cir. 1998) 152 F.3d 522, 531-533; Coalition of New Jersey Sportsmen, Inc. v. Whitman (D.N.J. 1999) 44 F. Supp. 2d 666, 685; California Rifle, supra, 66 Cal.App.4th at p. 1329; Suter v. City of Lafayette (1997) 57 Cal. App. 4th 1109, 1133 [67 Cal. Rptr. 2d 420]; In re Evans (1996) 49 Cal. App. 4th 1263, 1270 [57 Cal. Rptr. 2d 314].) This premise was challenged recently, insofar as the state Constitution is concerned, in Warden v. State Bar, supra, 21 Cal. 4th 628. In Serrano v. Priest (1976) 18 Cal. 3d 728 [135 Cal. Rptr. 345, 557 P.2d 929], we had noted that "our state equal protection provisions, while 'substantially the equivalent of' the guarantees contained in the Fourteenth Amendment to the United States Constitution, are possessed of an independent vitality," and, "in a given case," we observed, the state provisions "may demand an analysis different from that which would obtain if only the federal standard were applicable." (18 Cal.3d at p. 764.) In Warden, a more sweeping question was raisedwhether the rational relationship test adequately expresses the state constitutional guarantee. (Warden v. State Bar, supra, 21 Cal.4th at pp. 628, 660-667 (dis. opn. of Brown, J.) ["means scrutiny" is the appropriate test under the California Constitution].) [3] The majority of this court, however, adhered to the rational relationship test and restated it as follows: "As both the United States Supreme Court and this court have explained on many occasions, '[i]n areas of social and economic policy, a [23 Cal. 4th 482] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are "plausible reasons" for [the classification] "our inquiry is at an end." ' (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313 [113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211], italics added, quoting U.S. Railroad Retirement Bd. v. Fritz (1980) 449 U.S. 166, 179 [101 S. Ct. 453, 461-462, 66 L. Ed. 2d 368]; see, e.g., Central State Univ. v. American Assn. of Univ. Professors, Central State Univ. Chapter (1999) [526] U.S. [124, 126-128] [119 S. Ct. 1162, 1163, 143 L. Ed. 2d 227]; Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal. 2d 121, 130-132 [216 P.2d 825, 13 A.L.R.2d 252].) Past decisions also establish that, under the rational relationship test, the state may recognize that different categories or classes of persons within a larger classification may pose varying degrees of risk of harm, and properly may limit a regulation to those classes of persons as to whom the need for regulation is thought to be more crucial or imperative. (See, e.g., American Bank & Trust Co. v. Community Hospital (1984) 36 Cal. 3d 359, 371 [204 Cal. Rptr. 671, 683 P.2d 670, 41 A.L.R.4th 233]; Williamson v. Lee Optical Co. [(1955)] 348 U.S. 483, 489 [75 S. Ct. 461, 465, 99 L. Ed. 563] ['Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. [Citation.] Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.'].)" (Id. at pp. 644-645.)

[1c] Mindful of the deference we must accord the Legislature under the rational basis standard, we review the circumstances giving rise to the AWCA. The crisis created by the proliferation and use of assault weapons was the subject of a session of the California State Assembly meeting as a Committee of the Whole on February 13, 1989. The purpose of the extraordinary session, Speaker of the Assembly Willie L. Brown, Jr., explained, was "to educate the entire membership of the California State Assembly" on the issue. (1 Assem. J. (1989-1990 Reg. Sess.) pp. 436-437.) "Ordinarily," Speaker Brown noted, "this would be done in a regular committee. On some occasions, when the issue is of such extraordinary importance, and of such immediacy, we [meet as] a Committee of the Whole." (Id. at p. 437.) Speaker Brown provided the context in which the regulation of assault weapons was being considered. "The shooting incident in Stockton, the drive-by shootings that have been going on in Southern California at an alarming rate, the number of police officers who have been the victims of semi-automatic weapons, and the 'stats' that now show the alarming group of arrests that are taking place, and when items are confiscated, on many, many occasions those items have turned out to be semi-automatic weapons. [23 Cal. 4th 483] A combination of all those things, plus the volume of editorials, the volume of public comment out there about the question, requires us to address the issues." (Ibid.)

The "shooting incident in Stockton" to which Speaker Brown alluded had occurred at the Cleveland Elementary School in Stockton, California, the month before the meeting of the Committee of the Whole. While 300 pupils, mostly kindergartners through third graders, were enjoying their lunchtime recess, Patrick Purdy, who had placed plugs in his ears to dull the sounds of what he was about to do, drove up to the rear of the school and stepped out of his car carrying a Chinese-made semiautomatic AK-47. "Impassively, Purdy squeezed the trigger of his rifle, then reloaded, raking the yard with at least 106 bullets. As children screamed in pain and fear, Purdy placed a 9-mm pistol to his head and killed himself. When the four-minute assault was over, five children, ages 6 to 9, were dead. One teacher and 29 pupils were wounded." (Chow, Slaughter in a School Yard (Jan. 30, 1989) Time, at p. 29.)

The shooting at the Cleveland Elementary School in Stockton was only the latest of a series of terrifying incidents in California involving assault weapons. Five years earlier, in San Ysidro, James Huberty drove to a McDonald's restaurant "after announcing casually to his wife, 'I'm going to hunt humans.' " (Griggs & Ysidro, Sudden Death; Mass Murder at a McDonald's (July 30, 1984) Time, at p. 90.) Stepping into the restaurant with a 9-millimeter Browning automatic pistol in his belt and a 12-gauge shotgun and a 9-millimeter UZI semiautomatic rifle slung over his shoulders, Huberty called out, " 'Everybody on the floor.' About 45 patrons were present. As they scrambled to comply, Huberty marched around the restaurant calmly spraying gunfire.... Maria Diaz ran out the side door in panic when the shooting started, then remembered that her two-year-old son was still inside. She crept back to a window and saw him sitting obediently in a booth. She motioned him toward the door, nudged it open, and the boy toddled to safety." (Ibid.) Not everyone was so fortunate. After SWAT sharpshooters finally killed Huberty, "police and hospital workers moved in on the gruesome scene. A mother and father lay sprawled across their baby, apparently in an attempt to shield it. All three were dead." (Ibid.) The carnage was clearly far worse than it would have been had Huberty not been armed with semiautomatic weapons. He fired hundreds of rounds. "The gunfire was so heavy that police at first assumed that more than one gunman was inside. A fire truck took six shots before reversing direction and backing off. One fire fighter was grazed by a bullet that tore through the truck and then landed softly on his head." (Ibid.) In all, of the 45 patrons in the restaurant, Huberty killed 21 and wounded 15 others. [23 Cal. 4th 484]

In the hearing before the Committee of the Whole, the lead-off speaker was Attorney General John Van de Kamp. Attorney General Van de Kamp testified that only the day before a woman and her unborn child in Los Angeles had been killed by a gang member with an assault weapon. He added: "There was another one down in Lynwood, a nineteen-year-old, who was killed the same day." (1 Assem. J. (1989-1990 Reg. Sess.) p. 438.) Increasingly, "the weapons of choice for this madness," he noted, were "semi-automatic military assault rifles." In Los Angeles, he said, it had "become fashionable among hard-core members of the Crips Gang to spray a stream of bullets in hopes of taking down one rival gang member, but infants and grandmothers may be killed as well. They say that the young killers even have a phrase for it. They say, 'I spray the babies to [the] eighties.' " (Ibid.)

Because assault weapons were unregulated, Attorney General Van de Kamp observed, law enforcement officials did not know how many of them there were in California. However, he added, "we do know that the numbers are going up at a frightening rate. Hard hit police departments have begun to keep records, like Oakland, where the number seized has tripled in less than two years. Statewide, the number of semi-automatic weapons seized ... by law enforcement has more than doubled in the last two years.... A partially completed Department of Justice survey with 132 law enforcement agencies reporting thus far has found the same pattern for semi-automatics actually used in crimes. The number has doubled in the last two years. The number used in shootings has gone up nearly 300%. Clearly, we are seeing an escalation in the arms race, and law enforcement is losing." (1 Assem. J. (1989-1990 Reg. Sess.) p. 439.)

Dr. Garen Wintemute of the University of California, Davis, Medical School appeared before the Committee of the Whole to testify with regard to the "special wounding characteristics" of the high velocity ammunition commonly used in assault weapons. (1 Assem. J. (1989-1990 Reg. Sess.) p. 447.) When a high velocity bullet enters the body, Dr. Wintemute explained, "it starts to 'tumble,' as it moves through the tissue ... greatly increasing the amount of tissue which is damaged by direct contact with the bullet. Moreover, as this high-velocity missile travels through the tissue, it sends out pressure waves: We've all seen pictures of airplanes breaking the sound barrier, and waves moving away from the plane. The same thing happens as these bullets travel through tissue; these pressure waves ... create what is called 'a temporary cavity' behind the path of the bullet, which may be 10 to 15 timesor even greaterthe diameter of the bullet itself. [¶] As a result of this phenomenon, these high-velocity missiles can damage or destroy organs, break bonesincluding the femur, possibly the strongest bone in the bodywithout ever touching them." (Ibid.) [23 Cal. 4th 485]

Lieutenant Bruce Hagerty, a Los Angeles police officer familiar with "gangs and the increasing use of assault weapons," also testified before the Committee of the Whole. (1 Assem. J. (1989-1990 Reg. Sess.) p. 450.) "Probably the most graphic example, for me, was on Good Friday of last year, where a rival gang entered a neighborhood in South Central Los Angeles and sprayed a crowd of forty to fifty people with an AR-15, and that's an American assault rifle, shooting 14 people, killing a 19 year old boy, hitting a five year old little girl, and a 65 year old man, and all ages in between. I was the field commander of that situation, and I'm here to tell you that that was, in every sense of the word, a war scene.... There were bodies everywhere and people were terrified, and the only reason that this gang did that was to terrorize the neighborhood because they wanted to take it over and be able to sell drugs in that neighborhood, and the military assault rifle is the vehicle that they used. [¶] ... I'm here to tell you that there's only one reason that they use these weapons, and that is to kill people. They are weapons of war." (Ibid.)

The sponsors of the AWCA were Senator David A. Roberti and Assemblyman Mike Roos. Originally, both Senate Bill No. 292 (1989-1990 Reg. Sess.) (Senate Bill 292), introduced by Senator Roberti, and Assembly Bill No. 357 (1989-1990 Reg. Sess.) (Assembly Bill 357), introduced by Assemblyman Roos, defined assault weapons generically. As amended in the Senate on January 31, 1989, Senate Bill 292 defined "assault weapons" to include, for example, "[a]ll semiautomatic action, centerfire rifles that accept detachable magazines with a capacity of 20 rounds or more." The parallel provision of Assembly Bill 357, as amended in the Assembly on February 27, 1989, was identical. Although a majority in the Senate favored the approach of defining assault weapons generically, that approach was not acceptable to a majority of the Assembly. In the Assembly Public Safety Committee, the fate of Assembly Bill 357 was expected to turn on the vote of Assemblyman Charles W. Quackenbush, who was quoted as saying, "As it stands right now, I am against [the legislation]. There would have to be major changes for me to support it." According to the Los Angeles Times, "Quackenbush and other opponents say the bills would ban some legitimate hunting rifles as well as assault weapons and say they could support a measure that contained a more exact definition of assault weapons." (Ingram, State Anti-Gun Measures Facing an Uncertain Fate, L.A. Times (Feb. 24, 1989) p. I32, cols. 3-4.)

On February 28, 1989, Assembly Bill 357 was approved by the Assembly Public Safety Committee "with no votes to spare." (Ingram & Gillam, Assault Gun Ban Gains in Legislature, L.A. Times (Mar. 1, 1989) p. I1, col. 1.) The committee's action "followed acceptance by Roos of amendments [23 Cal. 4th 486] proposed by Quackenbush that eliminated a broad definition of what constituted an assault rifle. Substituted in its place was a list of about 40 rifles, shotguns and pistols that would be specifically banned by manufacturer and model, including the AK-47 and Uzi." (Id. at p. I21, cols. 3-4.) Senate Bill 292, which retained the generic definition approach, was approved by the Senate Judiciary Committee the same day. (Ingram & Gillam, supra, at p. I1, col. 4; see Sample & Richardson, State Ban on Assault Weapons Gains, Sacramento Bee (Mar. 1, 1989) p. A1.)

On March 9, 1999, Senate Bill 292 was approved by the Senate. Governor George Deukmejian expressed misgivings about the generic definition approach in the Senate bill, indicating that he favored the list approach taken by the Assembly. (Ingram, State Senate Votes to Ban Assault Guns, L.A. Times (Mar. 10, 1989) p. I1, col. 3; see Matthews, Gun Ban Breezes in Senate/NRA Predicts Ban Will Die in Assembly, Sacramento Bee (Mar. 10, 1989) p. A1.) On March 13, 1989, the Assembly passed Assembly Bill 357, with its list approach "on a 41-38 vote, the exact simple majority required in the 80-member chamber." (Ingram & Gillam, Assembly Passes Assault Gun Ban, L.A. Times (Mar. 14, 1989) p. I1, col. 5.) On April 4, 1989, Senate Bill 292 was amended by the Assembly Public Safety Committee to substitute the list approach for the generic definition approach, and as so amended, was approved by the committee. The same day the Senate Judiciary Committee approved Assembly Bill 357. (Ingram, Tougher of 2 Bills to Outlaw Assault Rifles Is Weakened by Panel, L.A. Times (Apr. 5, 1989) p. I3, col. 5; Sample, Panel Narrows, OKs Assault-Weapons Ban, Sacramento Bee (Apr. 5, 1989) p. A3.)

On May 15, 1989, a Senate Assembly conference committee "ratified a compromise with Gov. George Deukmejian," one element of which was a provision "aimed at ridding from the marketplace facsimile assault arms that are so close to being the real thing that they constitute an assault weapon. It would be up to the state attorney general to persuade a Superior Court judge that such was the case before the facsimile could be added to the list of banned guns." (Ingram, Panel Votes Compromise on Assault Weapons Ban, L.A. Times (May 16, 1989) p. I3, col. 5; see Sample, Conferees Approve Gun-Ban Compromise, Sacramento Bee (May 16, 1989) p. A3.) On May 18, 1989, both the Assembly and the Senate approved the bill and sent it to the Governor. In the Assembly, it had again obtained just 41 votes, the bare majority required for approval. (Ingram, Assault Gun Ban Wins Final Vote, L.A. Times (May 19, 1989) p. I1, col. 5.) On May 24, 1989, Governor Deukmejian signed the legislation. " 'It's well known that some drug dealers and violent gang members are using assault-type weapons,' the governor said before signing the measures. [¶] 'In the face of such firepower, our [23 Cal. 4th 487] state's courageous law enforcement officers need all the help that we can give them as they seek to preserve our public safety,' he said." (Sample, Duke Signs into Law Ban on Most Assault Arms, Sacramento Bee (May 25, 1989) p. A1.)

In seeking to address the grave threat to public safety posed by the possession and use of assault weapons by criminals, the Legislature was clearly walking a tightrope. Anti-gun-control groups like the National Rifle Association were adamantly opposed to an assault weapons ban, regardless of the approach takengeneric definition or list. (See, e.g., Matthews, Biggest Gun-Ban Shootout Remains: Combining Two Bills, Sacramento Bee (Mar. 27, 1989) p. A1.) On the other hand, a spokesman for the California Police Chiefs Association said neither bill went far enough. (Ibid.) Of the two approaches, many proponents of an assault weapons ban preferred a generic definition. Attorney General Van de Kamp, for example, warned that manufacturers could get around a list merely by renaming a firearm or making simple cosmetic changes in the weapon's design. (Ingram & Gillam, Assault Gun Ban Gains in Legislature, L.A. Times, supra, p. I21, cols. 4-5.) However, key figures like Governor Deukmejian and Assemblyman Quackenbush were concerned the proposed generic definition would sweep too broadlythat it would ban semiautomatic weapons used for legitimate sports and recreational purposes. The bottom line, apparently, was that an assault weapons ban would have died in the Assembly that session, had the proponents insisted on defining assault weapons generically.

The perfect can be the enemy of the good. The Legislature was convinced that "the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state." (§ 12275.5.) Given that conviction, the Legislature was not constitutionally compelled to throw up its hands just because a perfectly comprehensive regulatory scheme was not politically achievable. " ' "The problems of government are practical ones and may justify, if they do not require, rough accommodationsillogical, it may be, and unscientific." ' " (Dallas v. Stanglin (1989) 490 U.S. 19, 27 [109 S. Ct. 1591, 1596, 104 L. Ed. 2d 18], quoting Metropolis Theatre Co. v. City of Chicago (1913) 228 U.S. 61, 69-70 [33 S. Ct. 441, 443, 57 L. Ed. 730].)

The rough accommodations the Legislature made here are explained in its findings and declarations. "The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the [23 Cal. 4th 488] Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (§ 12275.5.)

The Legislature was, in short, confronted with two conflicting societal interests, both of which it recognized as legitimatethe interest of all citizens in being protected against the use of semiautomatic weapons by criminals, and the interest of some citizens in using semiautomatic weapons for hunting, target practice, or other legitimate sports or recreational activities. Seeking to accommodate these conflicting interests, the Legislature decided to list the models of semiautomatic weapons that were to be considered assault weapons. It chose the list approach, the Legislature declared, "because it was the most effective way to identify and restrict a specific class of semiautomatic weapons." (§ 12276, subd. (f).) The Legislature was not unmindful of the fact that the section 12276 list was not, and could not be, complete. In its uncodified findings and declarations, the Legislature explained that the add-on provision was intended to compensate for the inherent limitations of the list approach. "It is the intent, therefor[e], to ban the weapons enumerated in Section 12276 of the Penal Code and any other models which are only variations of these weapons, which are the same weapon but manufactured or sold by another company under a licensing agreement, or which are new models manufactured or sold by any company with just minor modifications or new model numbers in order to circumvent the prohibitions of Chapter 2.3 (commencing with Section 12275) of Title 2 of Part 4 of the Penal Code." (Stats. 1989, ch. 18, § 6, p. 59.)

The step-by-step approach adopted herethe list plus the add-on provisiondoes not violate principles of equal protection. As previously stated, both the United States Supreme Court and this court have recognized the propriety of a legislature's taking reform " 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.' " (Warden v. State Bar, supra, 21 Cal.4th at p. 645, quoting Williamson v. Lee Optical Co., supra, 348 U.S. 483, 489 [75 S. Ct. 461, 465].) "[A] legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked." (McDonald v. Board of Election (1969) 394 U.S. 802, 809 [89 S. Ct. 1404, 1409, 22 L. Ed. 2d 739].)

In Minnesota v. Clover Leaf Creamery Co., supra, 449 U.S. 456, the State of Minnesota banned retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitted such sale in other nonreturnable, nonrefillable [23 Cal. 4th 489] containers, such as paperboard milk cartons. Defending the statute against an equal protection challenge, the state acknowledged evidence that the plastic milk jug was the most popular, and the paperboard carton the most cumbersome and least well-regarded package in the industry, but argued that the ban on plastic nonreturnables would buy time during which environmentally preferable alternatives might be further developed and promoted. Rejecting this rationale, the Minnesota District Court found that the statute was actually intended to promote the economic interests of certain segments of the dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy and plastics industries. The Minnesota Supreme Court affirmed, striking down the statute on equal protection grounds and expressing doubt that the state would have taken any further steps to promote environmentally sound milk packaging. The high court reversed. "We find the State's approach fully supportable under our precedents. This Court has made clear that a legislature need not 'strike at all evils at the same time or in the same way,' Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610 [55 S. Ct. 570, 571, 79 L. Ed. 1086] (1935), and that a legislature 'may implement [its] program step by step, ... adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.' New Orleans v. Dukes [(1976)] 427 U.S. [297,] 303 [96 S. Ct. 2513, 2517, 49 L. Ed. 2d 511]. [Citations.] The Equal Protection Clause does not deny the State of Minnesota the authority to ban one type of milk container conceded to cause environmental problems, merely because another type, already established in the market, is permitted to continue in use." (449 U.S. at p. 466 [101 S.Ct. at p. 725].)

The principles of equal protection analysis reiterated in Minnesota v. Clover Leaf Creamery Co., supra, 449 U.S. 456, have been applied in a variety of contexts. For example, in United States v. Kiffer (2d Cir. 1973) 477 F.2d 349, the court of appeals rejected the argument that the Comprehensive Drug Abuse Prevention and Control Act of 1970 was irrationally underinclusive. Even if it were true, as appellants contended, that marijuana was less harmful than legally available substances such as tobacco and alcohol, "this does not render the statute here unconstitutional," the court of appeals held. (477 F.2d at p. 355.) "If Congress decides to regulate or prohibit some harmful substances, it is not thereby constitutionally compelled to regulate or prohibit all. It may conclude that half a loaf is better than none. [Citations.]" (Ibid.; accord, National Organization for Reform of Marijuana Laws v. Gain (1979) 100 Cal. App. 3d 586, 593-594 [161 Cal. Rptr. 181].) In Sherwin-Williams v. City & County of San Francisco (N.D.Cal. 1994) 857 F. Supp. 1355, manufacturers and retailers of markers and spray paint challenged the constitutionality of the city's "lock up" antigraffiti ordinance, [23 Cal. 4th 490] which prohibited retailers from displaying markers and spray paint for sale unless they were maintained in places accessible only with employee assistance. The court rejected plaintiffs' contention that the ordinance was irrationally underinclusive because it did not restrict access to other products that might be used to create graffiti. "In drafting anti-graffiti legislation, there was nothing irrational about the Board of Supervisors' decision to focus its energies on the most commonly used graffiti implements, rather than striking out at once at all of the available substitutes." (Id. at p. 1372.)

Of the cases involving equal protection challenges to assault weapons bans, the Attorney General relies on Benjamin, supra, 662 A.2d 1226, while plaintiffs rely on Springfield Armory, Inc. v. City of Columbus (6th Cir. 1994) 29 F.3d 250 (Springfield Armory). In Benjamin, the plaintiffs challenged a list-type assault weapons ban on the ground, among others, that it was irrationally underinclusive because it failed to include weapons that were virtually identical to listed weapons. Not surprisingly, given the nationwide character of the debate over gun control, the Connecticut Legislature faced the same sorts of political constraints as did the California Legislature, and like the California Legislature finally settled for a compromise it knew to be imperfect. One Connecticut senator said, " 'If we restrict the list, we're damned because of the guns we left out. If we expand the list, we're damned for the guns we keep in.' " (Benjamin, supra, 662 A.2d at p. 1239, fn. 12.) Another admitted: " 'This is not the perfect bill. It's not the solution, but it's a step in the right direction.' " (Ibid.) Appreciating the dilemma faced by its legislature, the Supreme Court of Connecticut rejected the equal protection challenge. "The legislature ... is not restricted in its options either to banning all weapons it considers harmful to the welfare of the citizenry or to banning none at all." (Ibid., fn. omitted.)

In Springfield Armory, supra, 29 F.3d 250, the Sixth Circuit Court of Appeals struck down a list-type assault weapons ordinance as unconstitutionally vague, no equal protection claim having been raised. "[T]he ordinance is fundamentally irrational .... The Columbus 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 legislatureto get assault weapons off the street. The ordinance purports to ban 'assault weapons' but in fact 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 ...." (Id. at p. 252.)

We are not persuaded by Springfield Armory. Doubtless, 10 years after the AWCA became law in California many semiautomatic weapons potentially [23 Cal. 4th 491] classifiable as assault weapons remain on the market here. That may or may not be regrettable, depending upon one's views on this highly charged public policy question, but it does not amount to a constitutionally fatal flaw in the AWCA. As the high court pointed out in the context of the packaging legislation it reviewed in Minnesota v. Clover Leaf Creamery Co., supra, 449 U.S. at page 466 [101 S.Ct. at page 725]: "Whether in fact the Act will promote more environmentally desirable milk packaging is not the question: the Equal Protection Clause is satisfied by our conclusion that the Minnesota Legislature could rationally have decided that its ban on plastic nonreturnable milk jugs might foster greater use of environmentally desirable alternatives." The Legislature here was under no illusion that the AWCA would rid the streets of assault weapons in one fell swoop. Instead, the Legislature intended that the approach it finally settled upon in the AWCAdesignating certain assault weapons by type, series, and model, while providing a mechanism for adding others "which are only variations of these weapons, which are the same weapon but manufactured or sold by another company under a licensing agreement, or which are new models manufactured or sold by any company with just minor modifications or new model numbers in order to circumvent the [AWCA's] prohibitions" (Stats. 1989, ch. 18, § 6, p. 59)would make California a safer place, even if only marginally and incrementally. We are not prepared to say that the Legislature's expectation was irrational or that, to pass constitutional muster, its ambitions had to be grander. fn. 2

B. Separation of Powers

[4] Plaintiffs contend, and the Court of Appeal agreed, that the add-on provision of section 12276.5 violates the separation of powers doctrine. After reviewing the fundamental policies that inform the separation of powers jurisprudence of this court and the United States Supreme Court, we reject this challenge.

"An unconstitutional delegation of authority occurs only when a legislative body (1) leaves the resolution of fundamental policy issues to others or [23 Cal. 4th 492] (2) fails to provide adequate direction for the implementation of that policy. (Kugler v. Yocum (1968) 69 Cal. 2d 371, 376-377 [71 Cal. Rptr. 687, 445 P.2d 303].)" (Carson Mobilehome Park Owners' Assn. v. City of Carson (1983) 35 Cal. 3d 184, 190 [197 Cal. Rptr. 284, 672 P.2d 1297].)

The delegation here, the Court of Appeal concluded, suffers from a defect of the second sortthe failure to provide adequate direction for the implementation of legislative policy. "[B]y what reasoning," the Court of Appeal asked, "does a judge determine whether a gun is merely 'redesigned' from another or has modifications or enhancements which are but 'slight?' What is 'slight' enough or 'redesigned' enough?"

Actually, the role that the courts play in implementing the add-on procedure is a very narrow, essentially adjudicatory one. The Attorney General initiates the add-on procedure by filing a petition in certain superior courts seeking a declaration of "temporary suspension of the manufacture, sale, distribution, transportation, or importation into the state, or the giving or lending of a firearm alleged to be an assault weapon within the meaning of Section 12276." The grounds for such a declaration are that the firearm is either of the following: "(1) Another model by the same manufacturer or a copy by another manufacturer of an assault weapon listed in subdivision (a), (b), or (c) of Section 12276 which is identical to one of the assault weapons listed in those subdivisions except for slight modifications or enhancements including, but not limited to: a folding or retractable stock; adjustable sight; case deflector for left-handed shooters; shorter barrel; wooden, plastic or metal stock; larger magazine size; different caliber provided that the caliber exceeds .22 rimfire; or bayonet mount. The court shall strictly construe this paragraph so that a firearm which is merely similar in appearance but not a prototype or copy cannot be found to be within the meaning of this paragraph. [¶] (2) A firearm first manufactured or sold to the general public in California after June 1, 1989, which has been redesigned, renamed, or renumbered from one of the firearms listed in subdivision (a), (b), or (c) of Section 12276, or which is manufactured or sold by another company under a licensing agreement to manufacture or sell one of the firearms listed in subdivision (a), (b), or (c) of Section 12276, regardless of the company of production or distribution, or the country of origin." (§ 12276.5, subd. (a).)

At the hearing on a permanent declaration, the burden of proof is on the Attorney General to show by a preponderance of the evidence that the firearm is an assault weapon. If the court finds that the firearm comes within the criteria set forth in subdivision (a) of section 12276.5, the court "shall issue a declaration that it is an assault weapon under Section 12276. Any party to the matter may appeal the court's decision." (§ 12276.5, subd. (f).) [23 Cal. 4th 493]

It is instructive to contrast the essentially adjudicatory determination that section 12276.5 calls upon the superior court to make with the much more policy-laden, quasi-legislative determinations that were nevertheless upheld in the face of separation of powers challenges by the United States Supreme Court in Mistretta v. United States (1989) 488 U.S. 361 [109 S. Ct. 647, 102 L. Ed. 2d 714] (Mistretta), and by this court in People v. Wright (1982) 30 Cal. 3d 705 [180 Cal. Rptr. 196, 639 P.2d 267] (upholding the delegation of authority to the Judicial Council to promulgate sentencing guidelines).

In Mistretta, the high court reviewed the constitutionality of the Sentencing Reform Act, under which Congress delegated authority to the Sentencing Commission to promulgate sentencing guidelines for federal criminal offenses, placed the commission within the judicial branch, and required federal judges to serve on it along with nonjudges. In upholding the Sentencing Commission against a separation of powers challenge, the court acknowledged that the Sentencing Commission was "unquestionably ... a peculiar institution within the framework of our Government," but went on to say that "[o]ur constitutional principles of separated powers are not violated, however, by mere anomaly or innovation." (Mistretta, supra, 488 U.S. at pp. 384-385 [109 S.Ct. at p. 661].)

It is concern about " 'encroachment and aggrandizement,' " the court reiterated in Mistretta, that has animated its separation of powers jurisprudence. (Mistretta, supra, 488 U.S. at p. 382 [109 S.Ct. at p. 660].) "Accordingly, we have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.... By the same token, we have upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment." (Id. at p. 382 [109 S.Ct. at p. 660].) Applying these principles, the court upheld the Sentencing Reform Act after measuring it against the following standard: "Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary." (Id. at p. 388 [109 S.Ct. at p. 663].)

The delegation here satisfies this standard. None of the three branches is aggrandized by the delegation or encroached upon by it. And the authority delegated to the superior courtto serve as a check on the power delegated to the executive branch by reviewing the question whether a firearm the Attorney General wishes to add to the list of assault weapons satisfies the criteria set forth in section 12276.5is appropriate to the central mission of [23 Cal. 4th 494] the judiciary. Admittedly, having the court conduct the review as the final act in the exercise of a legislatively delegated power is, in the language of Mistretta, "peculiar," but as that case reminded us, "[o]ur constitutional principles of separated powers are not violated ... by mere anomaly or innovation." (Mistretta, supra, 488 U.S. at pp. 384-385 [109 S.Ct. at p. 661].)

What Mistretta's argument really came down to, the Supreme Court said, was not that the substantive responsibilities of the Sentencing Commission aggrandized the judicial branch, "but that that Branch is inevitably weakened by its participation in policymaking." (Mistretta, supra, 488 U.S. at p. 395 [109 S.Ct. at p. 667].) This concern, the high court held, was not well founded with regard to the Sentencing Commission. "We do not believe ... that the placement within the Judicial Branch of an independent agency charged with the promulgation of sentencing guidelines can possibly be construed as preventing the Judicial Branch 'from accomplishing its constitutionally assigned functions.' Nixon v. Administrator of General Services [(1977)] 433 U.S. [425,] 443 [97 S. Ct. 2777, 2790, 53 L. Ed. 2d 867]. Despite the substantive nature of its work, the Commission is not incongruous or inappropriate to the Branch. As already noted, sentencing is a field in which the Judicial Branch long has exercised substantive or political judgment. What we said in Morrison when upholding the power of the Special Division to appoint independent counsel applies with even greater force here: 'This is not a case in which judges are given power ... in an area in which they have no special knowledge or expertise.' [Morrison v. Olson (1988)] 487 U.S. [654,] 676, n. 13 [108 S. Ct. 2597, 2611, 101 L. Ed. 2d 569]. On the contrary, Congress placed the Commission in the Judicial Branch precisely because of the Judiciary's special knowledge and expertise." (Id. at pp. 395-396 [109 S.Ct. at p. 667].)

The same may be said here; that is, this is not a case in which judges are given power in an area in which they have no special knowledge or expertise, but rather a case in which the Legislature turned to the courts precisely because of their special knowledge and expertise in reviewing questions of the sort at issue in a section 12276.5, subdivision (f), hearingwhether a firearm alleged by the Attorney General to be an assault weapon comes within the criteria set forth in section 12276.5, subdivision (a). Moreover, the amici curiae supporting the Attorney General contend that the fact the Legislature divided the authority it delegated between the executive and judicial branches, instead of confiding the whole of it to the Attorney General, should not be considered a fatal flaw in the AWCA, but rather a virtue. The amici curiae have a point. For the Legislature to set up the courts as a check upon the exercise of power it is delegating to the Attorney [23 Cal. 4th 495] General is, in itself, perfectly in keeping with the separation of powers doctrine, the primary purpose of which is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government. (See In re Attorney Discipline System (1998) 19 Cal. 4th 582, 596 [79 Cal. Rptr. 2d 836, 967 P.2d 49]; Davis v. Municipal Court (1988) 46 Cal. 3d 64, 76 [249 Cal. Rptr. 300, 757 P.2d 11]; Parker v. Riley (1941) 18 Cal. 2d 83, 89 [113 P.2d 873, 134 A.L.R. 1405].)

However, it may be objected, the separation of powers doctrine not only guards against the concentration of power in a single branch of government; it also protects one branch against the overreaching of the others. (See In re Attorney Discipline System, supra, 19 Cal.4th at p. 596; Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal. 3d 329, 338 [178 Cal. Rptr. 801, 636 P.2d 1139]; Bixby v. Pierno (1971) 4 Cal. 3d 130, 141 [93 Cal. Rptr. 234, 481 P.2d 242].) The Court of Appeal found overreaching in this delegation. "The Legislature cannot bestow legislative power on judges. For example, in Epperson v. Jordan (1938) 12 Cal. 2d 61 [82 P.2d 445] (Epperson), the California Supreme Court invalidated statutes which tried to draft members of this court to write titles for initiative measures because 'they purport to confer nonjudicial duties on the appellate justices ....' "

Was the Legislature here guilty of the overreaching we condemned in Epperson? The rationale of our decision, we said in Epperson, supra, "12 Cal.2d at page 64, "need not be discussed at length. The principles involved have recently and exhaustively been considered by this court in Abbott v. McNutt [(1933)] 218 Cal. 225 [22 P.2d 510, 89 A.L.R. 1109].)" In Abbott v. McNutt, supra, 218 Cal. 225, this court reviewed the constitutionality of a county charter provision that judges of that county, or their nominees, were to serve as members of a " 'qualification board' " to recruit and submit to the board of supervisors candidates for the position of county executive. Although we mentioned the nondelegation doctrine, our decision did not turn on it. (Id. at p. 228.) Instead, we held that service on the qualifications board would have violated the prohibition of article VI, former section 18 (see now § 17) of the California Constitution against judges' holding "any other office or public employment" during their judicial term. The "purpose and policy" underlying this constitutional prohibition, we observed, was cogently stated by Justice Cardozo in In re Richardson (1928) 247 N.Y. 401 [160 N.E. 655 [247 N.Y. 401, 160 N.E. 655]]. " 'The policy is to conserve the time of the judges for the performance of their work, and to save them from the entanglements, at times the partisan suspicions, so often the result of other and conflicting duties.' In other words, it is intended to exclude judicial officers from such extrajudicial activities as may tend to militate against the free, disinterested and impartial exercise of their judicial functions." (Abbott [23 Cal. 4th 496] v. McNutt, supra, 218 Cal. at p. 229, quoting In re Richardson, supra, 160 N.E. at p. 661.) Service on the qualification board, we noted, might involve the county's judges "in those 'entanglements' and subject them to those 'partisan suspicions' of which the constitutional inhibition, in its wisdom, seeks to free them." For example, they might one day have been required to try charges of misfeasance against a county executive they had recommended as qualified. (Abbott v. McNutt, supra, 218 Cal. at p. 230.)

Was the policy that informed our decisions in Epperson and Abbottthe policy, in the words of Justice Cardozo, "to conserve the time of the judges for the performance of their work as judges, and to save them from the entanglements, at times the partisan suspicions, so often the result of other and conflicting duties"violated by the delegation here? (In re Richardson, supra, 160 N.E. at p. 661.) Insofar as the first prong of Justice Cardozo's stricture is concernedconserving the time of judges for the performance of their workany violation was de minimis, certainly as measured against the facts of In re Richardson. In that case, the Governor of New York, pursuant to statutory authorization, directed a New York judge to take evidence and report to him as to whether the president of the Borough of Queens should be removed. In holding that the judge was disqualified, while retaining judicial office, from acting as the governor's delegate in such a matter, Justice Cardozo observed that the inquiry had "already separated the respondent for more than two months from the discharge of his judicial duties, and ... is likely to continue [to do so] for many weeks to come.... Interference so prolonged with assignments to judicial duty is the very evil that was meant to be hit by the prohibitions of the [New York] Constitution directed against dual office." (Ibid.)

The duties imposed upon the judicial officers in Epperson and Abbott were not nearly as time-consuming as those in In re Richardson, but they still posed an unacceptably high risk of " 'entanglements' " and " 'partisan suspicions.' " (Abbott v. McNutt, supra, 218 Cal. at p. 230.) Does the delegation here carry a significant risk of that sort? It might well, if the judge were called upon to initiate the process of adding firearms to the list of assault weapons, but that role is played by the Attorney General under section 12276.5, and the court plays its familiar role of reviewing a legal questionwhether the criteria set forth in the statute were satisfied.

A related concern is whether the role the Legislature assigned to the courts in section 12276.5 will undermine the public's confidence in the impartiality of the judiciary. A concern in this regard led the United States Court of Appeals for the Eleventh Circuit to hold that the appointment of two article III judges to the Organized Crime Commission, which was to advise the [23 Cal. 4th 497] President and the United States Attorney General of actions that could be taken to improve law enforcement efforts directed against organized crime, violated the separation of powers doctrine. "Impartiality is one of the central, constitutionally-ordained, requirements of the federal judicial office, ... and this impartiality is threatened by many of the activities of the Commission. A judge who is charged with assisting and improving enforcement efforts against organized crime must adopt a pro-government perspective which is ill-suited to his obligation to be neutral in the courtroom. The kind of information he might uncover through the investigatory activities of the Commission would further endanger his impartiality. If the data and testimony surveyed by the Commission were to demonstrate, for example, that the magnitude of the threat posed by organized crime was greater than had previously been suspected, that a substantial amount of organized crime activity was never prosecuted, or that law enforcement officials in many parts of the country employed methods which were poorly chosen, subject to abuse or inadequate to combat the problem, such discoveries could affect the way the judge approached those organized crime suspects and law enforcement officials ... who appeared before him. Moreover, even if a judge could satisfy himself that he could separate his participation on the Commission from his judicial functions, it is not clear that litigants could sustain equal faith in his impartiality." (Application of President's Com'n on Crime (11th Cir. 1985) 763 F.2d 1191, 1197.)

The duty imposed upon the courts here, reviewing the question whether a firearm the Attorney General wishes to add to the list of assault weapons satisfies the criteria set forth in section 12276.5, clearly does not raise the same sorts of concerns with regard to impartiality that service on the Organized Crime Commission did. Moreover, the United States Court of Appeals for the Third Circuit did not share the concern of the Eleventh Circuit that such service would undermine the impartiality of the judiciary in fact or appearance. (See Matter of President's Com'n on Organized Crime (3d Cir. 1986) 783 F.2d 370 (Scarfo).) A separation of powers challenge involving the conferral of power upon the judicial branch, the Third Circuit said, should be reviewed in terms of the functional analysis set out in Nixon v. Administrator of General Services, supra, 433 U.S. 425, 443 [97 S. Ct. 2777, 2790]; that is, the focus should be upon the extent to which the challenged action prevents the judiciary from accomplishing its constitutionally assigned functions. (Scarfo, supra, 783 F.2d at p. 375.) The service of two judges on the Organized Crime Commission "does not disable any other Article III judge or any court from performing properly assigned duties. In the event of recusals there will be a substitution of Article III judges and the work of the courts will not be impaired. [¶] ... What is present here is a limited dislocation and not one which would require reassignment of a large [23 Cal. 4th 498] number of cases." (Id. at p. 381.) The same holds true here. Under section 12276.5, subdivision (a), the Attorney General may file a temporary suspension petition only in superior courts of counties with a population of more than 1,000,000, and the likelihood that a judge would be called upon to try a prosecution under the AWCA involving a firearm of a sort that she or he had earlier declared an assault weapon under section 12276.5 is remote, so any recusals occasioned by section 12276.5 should not be disruptive.

Finally, some commentators perceive in legislative bodies a tendency to duck controversial issues, and upholding a delegation of this sort will only encourage that tendency, they would argue. His dissents in Morrison v. Olson, supra, 487 U.S. 654, 697 [108 S. Ct. 2597, 2622] and Mistretta, supra, 488 U.S. 361, 413 [109 S. Ct. 647, 676], suggest Justice Scalia might be in this camp. In criticizing the legislative veto, then Professor Scalia deplored the inclination he found in Congress to delegate political judgments it considered "too hot to handle." Title IX of the Education Amendments of 1972 was a good example of this tendency, he suggested. "It was apparent when that law was passed that its concrete application would arouse heated controversy over precisely such issues as all-male sports, unisex dorms, and even unisex toilets. Was it not more appealing for Congress to take the high road, winning approval from all sides by being against 'sex discrimination'and leaving to the agencies the inevitable alienation of one or another constituency which accompanies the act of giving that term content?" (Scalia, The Legislative Veto: A False Remedy for System Overload (Nov.-Dec. 1979) Regulation, pp. 19, 24.) We must not assume, however, that such unworthy motives prompt a delegation. As Judge Carl McGowan of the District of Columbia Circuit noted, while Congress may "fix[] upon broad delegation for reasons of internal political maneuver or as an escape from having to stand up and be counted," most delegations are legitimate responses to the fact that Congress, "in an increasingly complex and changing world, is called upon to deal with subject matter that is novel and imprecise, and for which it is frequently ill-equipped to do more than to paint with a broad brush, leaving the details to be filled in by less unwieldy and more expert administrative authority." (McGowan, Congress, Court and Control of Delegated Power (1977) 77 Colum. L.Rev. 1119, 1128-1129.) The delegation in the present case is manifestly of the latter sort. For good or ill, the Legislature stood up and was counted on this issue, one of the most contentious in modern society. The task it delegatedamending the list of assault weapons to capture the protean modifications of the weaponswas one it could not reasonably be expected to perform itself.

C. Due Process

[5] A law failing to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited violates due process under both the [23 Cal. 4th 499] federal and California Constitutions. (Grayned v. City of Rockford (1972) 408 U.S. 104, 108 [92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222]; People v. Heitzman (1994) 9 Cal. 4th 189, 199 [37 Cal. Rptr. 2d 236, 886 P.2d 1229].) Section 12276.5 violates this standard, the Court of Appeal held, "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. (§ 12276.5, subd. (a)(1), (2).) Reasonable persons can understand renaming and renumbering. But what is a 'slight' modification or a 'redesign?' "

The questions raised by the Court of Appeal are not questions ordinary citizens must answer at their peril. Rather, they are questions the Attorney General must address in deciding whether to petition the superior court for a declaration of temporary suspension (§ 12276.5, subd. (a)), and that the superior court must resolve in determining whether to issue a permanent declaration that a firearm is an assault weapon (§ 12276.5, subd. (f)). If the superior court issues a permanent declaration that a specified firearm is an assault weapon, then the Attorney General must, within 90 days, promulgate an amended list of the firearms designated as assault weapons in section 12276, or added to the list pursuant to section 12276.5, and the amended list must be filed by the Attorney General with the Secretary of State for publication in the California Code of Regulations. (§ 12276.5, subd. (h).) Therefore, concerned citizens need not struggle with the question whether, for example, a particular firearm is identical to one of the listed assault weapons except for slight modifications. The citizens may simply consult the amended list. (The availability of the amended list distinguishes the cases upon which the Court of Appeal relied in holding the AWCA unconstitutionally vagueSpringfield Armory, supra, 29 F.3d 250, and Robertson v. City and County of Denver (Colo. 1994) 874 P.2d 325 [29 A.L.R.5th 837].) Because the standard set forth in section 12276.5, subdivision (a), is to be applied by the Attorney General and the superior court, we need not and do not reach the question whether it would be unconstitutionally vague if ordinary citizens were required to apply it.

[6] The Court of Appeal held the AWCA violates due process in a second respect: "[T]he 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.... 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."

As to this challenge, the Attorney General defends the AWCA on a number of grounds, not all of them consistent with one another. First, the [23 Cal. 4th 500] Attorney General argues that the giving or lending of a firearm during the "temporal gap" would never be the subject of a temporary suspension order. As the Attorney General notes, section 12276.5, subdivision (a) contains disjunctive clauses: "Upon request by the Attorney General ..., the superior court shall issue a declaration of temporary suspension of the manufacture, sale, distribution, transportation or importation into the state, or the giving or lending of a firearm alleged to be an assault weapon within the meaning of Section 12276 because the firearm" satisfies the criteria set out in paragraphs (1) and (2) of subdivision (a). (Italics added.) Seizing upon the disjunction, the Attorney General argues: "Only the Attorney General determines whether one or both of these groups will be subject to the temporary suspension. The reason for a temporary suspension is to prevent distribution of weapons declared to be assault weapons during the pendency of the [permanent suspension] hearing.... It seems illogical to assume that the Attorney General will choose to apply a temporary suspension to individuals who already possess the weapon." Illogical, perhaps, but not inconceivable. The Legislature apparently felt it important, and not illogical, to give the Attorney General the authority to temporarily suspend the giving or lending of a firearm alleged to be an assault weapon, so we cannot with confidence assume the Attorney General would never use that authority.

The Attorney General next argues that even if the giving or lending of a firearm alleged to be an assault weapon were temporarily suspended, the hunter in the Court of Appeal's hypothetical would receive constructive notice of the temporary suspension order pursuant to section 12276.5, subdivision (c).

Subdivision (c) of section 12276.5 provides: "Upon declaration of temporary suspension, the Attorney General shall immediately notify all police, sheriffs, district attorneys, and those requesting notice pursuant to subdivision (d), shall notify industry and association publications for those who manufacture, sell, or use firearms, and shall publish notice in not less than 10 newspapers of general circulation in geographically diverse sections of the state of the fact that the declaration has been issued." (Italics added.) Subdivision (d) of section 12276.5 provides in pertinent part: "The Attorney General shall maintain a list of any persons who request to receive notice of any declaration of temporary suspension and shall furnish notice under subdivision (c) to all these persons immediately upon a superior court declaration." Subdivision (b) of section 12276.5 provides that upon the issuance of a declaration of temporary suspension "and after the Attorney General has completed the notice requirements of subdivisions (c) and (d)," the penalty provisions of subdivision (a) of section 12280 shall apply with [23 Cal. 4th 501] respect to the weapons subject to the temporary suspension declaration. And finally, subdivision (a)(1) of section 12280 makes it a felony for a person to manufacture, distribute, transport, import, sell, possess, or lend an assault weapon in this state, except as provided in the AWCA.

Plaintiffs object that an ordinary gun owner is not likely to request notice of temporary suspensions pursuant to subdivision (d) of section 12276.5, and that constructive notice in newspapers is not constitutionally adequate. Amici curiae in support of the Attorney General respond, "gun owners can hardly be heard to complain about the unfairness of a statute which gives them the extraordinary right to receive from the Attorney General, upon request, specific notice of a temporary suspension." After all, amici curiae note, "California law attributes to all citizens constructive knowledge of the content of state statutes...." In Hale v. Morgan (1978) 22 Cal. 3d 388, 396 [149 Cal. Rptr. 375, 584 P.2d 512], the case upon which amici curiae rely, we acknowledged that the policy of charging citizens with knowledge of the law is based on a fiction because no one, of course, can know all the law. What amici curiae are impliedly asking us to do is stretch the fiction to cover cases where the law is to be found, not in the statute books, nor even at this point in the process in the California Code of Regulations, but rather in "10 newspapers of general circulation in geographically diverse sections of the state." (§ 12276.5, subd. (c).)

Tellingly, not even the Attorney General appears to be prepared to go that far, for he all but concedes that a person who did not have actual notice of a temporary suspension could not constitutionally be convicted of violating section 12280. "It is highly speculative and unlikely that anyone would be prosecuted under the law if they did not have prior notice of the temporary declaration. Furthermore, to the extent that a person could establish a lack of actual or constructive notice of a temporary declaration order and that there was not sufficient information to alert that person of the likelihood that their firearm was subject to regulation, that person would be able to raise an affirmative defense to a possible prosecution for a violation of the temporary declaration. The provisions of section 12276.5[, subdivision] (b), which require [completion] of the notice requirements before criminal sanctions apply, indicate that the reasonable interpretation of those provisions require[s] a knowing violation of the temporary declaration, as a[n] element of that crime." We cannot agree with the Attorney General. The AWCA seems clearly to contemplate a section 12280 prosecution where the only notice of a temporary declaration would be predicated upon publication of the notice "in not less than 10 newspapers of general circulation in geographically diverse sections of the state." (§ 12276.5, subd. (c).) Such a prosecution would raise grave due process concerns. However, plaintiffs have failed to [23 Cal. 4th 502] shoulder their burden of showing the temporary declaration provision of the AWCA to be facially unconstitutional.

The standard governing a facial challenge to the constitutional validity of a statute has been the subject of controversy within this court. (See American Academy of Pediatrics v. Lungren (1997) 16 Cal. 4th 307, 342-343 [66 Cal. Rptr. 2d 210, 940 P.2d 797] (plur. opn. of George, C. J.) (American Academy); id. at p. 412 (dis. opn. of Baxter, J.); id. at p. 421 (dis. opn. of Brown, J.); see also California Teachers Assn. v. State of California (1999) 20 Cal. 4th 327, 347 [84 Cal. Rptr. 2d 425, 975 P.2d 622] (California Teachers).) We need not revisit that controversy here because plaintiffs have not even made the showing required under the formulations of the standard most favorable to their position; that is, they have failed to demonstrate that the temporary suspension provision of the AWCA would present due process notice issues in the "vast majority of its applications" (American Academy, supra, 16 Cal.4th at p. 343), or that it would present such problems " 'in the generality of cases' " (California Teachers, supra, 20 Cal.4th at p. 347). Accordingly, their facial challenge to the constitutionality of the statute must be rejected.

For the same reason, we reject plaintiffs' facial challenge to the statute based on a due process argument focusing on opportunity to be heard. When a hearing is set on permanent declaration that a weapon is an assault weapon, only manufacturers or California distributors of the weapon have a right to intervene. Others, including gun owners, "may, in the court's discretion, thereafter join the action as amicus curiae." (§ 12276.5, subd. (e).) Plaintiffs complain that gun owners might become criminally liable for failure to register without ever having had an opportunity to contest the addition of their guns to the list of assault weapons. This claim suffers from the same defect as plaintiffs' notice claim. While due process requirements might arguably prevent prosecution in a particular casewhere a gun owner sought but was denied amicus curiae status at the section 12276.5, subdivision (e) hearing, or where the Attorney General's petition went unopposed because no one with an incentive to oppose it received actual notice of the hearingplaintiffs' facial attack is inadequate because they have not demonstrated a deprivation of due process in the "vast majority" (American Academy, supra, 16 Cal.4th at p. 343) or " 'generality' " (California Teachers, supra, 20 Cal.4th at p. 347) of cases.

II. Disposition

We reverse the judgment of the Court of Appeal.

George, C. J., Baxter, J., Werdegar, J., and Chin, J., concurred. [23 Cal. 4th 503]



I concur in the result and much of the reasoning of the majority opinion. I write separately to articulate a somewhat different view of the separation of powers issue.

As the majority correctly recognize, the role that courts play in the add-on procedures of Penal Code section 12276.5 is "essentially adjudicatory." (Maj. opn., ante, at p. 492.) Yet the majority's extensive discussion of cases involving the judiciary's performance of extrajudicial functions obscures this point. To my mind, the role the court is being asked to play in section 12276.5 is the traditional one of judicially reviewing whether administrative regulations comply with a statute, and there is therefore no real separation of powers issue.

Typically, quasi-legislative administrative regulations are reviewed via a writ of mandate under Code of Civil Procedure section 1085. (See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal. 4th 559, 567 [38 Cal. Rptr. 2d 139, 888 P.2d 1268].) In this case, the Attorney General is for all intents and purposes promulgating a regulation pursuant to the very specific guidelines of Penal Code section 12276.5. The Legislature could have simply prescribed procedures by which the Attorney General would issue the regulations, and allow the challenge of the regulations through the normal writ of mandate procedures. It chose instead to use an alternate procedure for judicial review, one that occurs before the regulation can take effect. This procedure also places the burden on the government to prove the validity of the regulation rather than, in the usual writ of mandate proceedings, placing the burden on the one challenging the regulation to prove an abuse of discretion. (Western States Petroleum, supra, 9 Cal.4th at p. 568.) Although this form of judicial review is unconventional, it is not unconstitutional. Indeed, the judicial review prescribed by section 12276.5 is more protective of the individual's right to be free of overreaching government regulations than is conventional judicial review. Therefore, cases cited by plaintiffs regarding the delegation to the judiciary of extrajudicial functions (see, e.g., Mistretta v. United States (1989) 488 U.S. 361 [109 S. Ct. 647, 102 L.Ed.2d 714]) are simply inapposite.

For this reason, I agree that Penal Code section 12276.5 does not violate the constitutional separation of powers.

Werdegar, J., concurred.




I concur in the judgment and opinion of the court. I am writing separately because, although the rejection of the equal protection claim is compelled by [23 Cal. 4th 504] the majority opinion in Warden v. State Bar (1999) 21 Cal. 4th 628 [88 Cal. Rptr. 2d 283, 982 P.2d 154] (Warden), I would independently reach the same conclusion under the unique circumstances of this case.

In Warden, a majority of this court abandoned our long-standing commitment to " ' "serious and genuine judicial inquiry" ' " into equal protection claims in favor of the highly deferential rational basis formulation articulated by the United States Supreme Court. (Warden, supra, 21 Cal. 4th 628, 661 (dis. opn. of Brown, J.), quoting Newland v. Board of Governors (1977) 19 Cal. 3d 705, 711 [139 Cal. Rptr. 620, 566 P.2d 254], quoting Dorrough v. Estelle (5th Cir. 1974) 497 F.2d 1007, 1011.) Under the standard adopted by the Warden majority, " '[I]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are "plausible reasons" for [the classification] "our inquiry is at an end." ' (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313 [113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211], italics added, quoting U.S. Railroad Retirement Bd. v. Fritz (1980) 449 U.S. 166, 179 [101 S. Ct. 453, 461-462, 66 L. Ed. 2d 368]; see, e.g., Central State Univ. v. American Assn. of Univ. Professors, Central State Univ. Chapter (1999) 526 U.S. 124, 126-128 [119 S. Ct. 1162, 1163, 143 L. Ed. 2d 227]; Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal. 2d 121, 130-132 [216 P.2d 825, 13 A.L.R.2d 252].)" (Warden, at p. 644.)

The dichotomy between the United States Supreme Court's laissez-faire treatment of social and economic rights and its hypervigilance with respect to an expanding array of judicially proclaimed fundamental rights is highly suspect, incoherent, and constitutionally invalid. "[T]he outcome in every case turns on how the court chooses to characterize the classification. Suspect classifications, such as those based on race or that impact rights the court deems 'fundamental,' warrant strict (read 'fatal') scrutiny; other classifications warrant rational basis (read 'anything goes') review. (FCC v. Beach Communications, Inc., supra, 508 U.S. 307, 313-316 [113 S. Ct. 2096, 2100-2103].) As Justice Mosk so aptly put it, '[t]he vice of the binary theory ... is that it applies either a standard that is virtually always met (the rational relationship test) or one that is almost never satisfied (the strict scrutiny test). [Citation.] Once the test is selected, the result of its application is foreordained ....' (Hays v. Wood (1979) 25 Cal. 3d 772, 796 [160 Cal. Rptr. 102, 603 P.2d 19] (conc. opn. of Mosk, J.).)" (Warden, supra, 21 Cal.4th at pp. 661-662 (dis. opn. of Brown, J.).) Just so, the result here was foreordained once we assumed "the AWCA does not burden a fundamental right under either the federal or state Constitutions, [and therefore] the [23 Cal. 4th 505] rational basis test applies. (See Peoples Rights Organization, Inc. v. City of Columbus (6th Cir. 1998) 152 F.3d 522, 531-533; Coalition of New Jersey Sportsmen, Inc. v. Whitman (D.N.J. 1999) 44 F. Supp. 2d 666, 685; California Rifle [& Pistol Assn., Inc. v. City of West Hollywood (1998)] 66 Cal. App. 4th 1302, 1329 [78 Cal. Rptr. 2d 591]; Suter v. City of Lafayette (1997) 57 Cal. App. 4th 1109, 1133 [67 Cal. Rptr. 2d 420]; In re Evans (1996) 49 Cal. App. 4th 1263, 1270 [57 Cal. Rptr. 2d 314].)" (Maj. opn., ante, at p. 481.)

This case, however, illustrates the illusory nature of the distinction between "fundamental rights" and "areas of social and economic policy." Curiously, in the current dialectic, the right to keep and bear armsa right expressly guaranteed by the Bill of Rightsis deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions. (See, e.g., Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 278-279 [110 S. Ct. 2841, 2851-2852, 111 L. Ed. 2d 224]; Zablocki v. Redhail (1978) 434 U.S. 374, 384-387 [98 S. Ct. 673, 679-681, 54 L. Ed. 2d 618]; Moore v. East Cleveland (1977) 431 U.S. 494, 499-500 [97 S. Ct. 1932, 1935-1936, 52 L. Ed. 2d 531].) But surely, the right to preserve one's life is at least as fundamental as the right to preserve one's privacy.

The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense. Blackstone described self-defense as the "primary law of nature," which could not be taken away by the law of society. (2 Jones's Blackstone (1976) p. 4.) "[T]he peaceable part of mankind will be continually overrun by the vile and [the] abandoned, while they neglect the means of self defence.... The supposed quietude of the good man allures the ruffian; ... (but) arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world.... Horrid mischief would ensue were [the good] deprived of the use of [weapons] ... the weak will become a prey to the strong." (1 Paine, The Writings of Thomas Paine (Conway edit. 1894) p. 56.) Extant political writings of the period repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.

After the Civil War a series of enactments, culminating with the Fourteenth Amendment, acknowledged the correlation between self-defense, citizenship, and freedom. Section 14 of the Freedmen's Bureau Act, which the 39th Congress passed over the President's veto, provided: "That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, ... the right to ... have full and equal [23 Cal. 4th 506] benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery...." (Freedmen's Bureau Act, § 14 (July 16, 1866) 14 Stat. 176, italics added; see Halbrook, Second Class Citizenship and the Second Amendment in the District of Columbia (1995) 5 Geo. Mason U. Civ. Rts. L.J. 105, 141-150 (Second Class Citizenship).)

Halbrook concludes the Freedmen's Bureau Act, the Civil Rights Act of 1866, and the Fourteenth Amendment leave no doubt that " 'the constitutional right to bear arms' is included among the 'laws and proceedings concerning personal liberty, personal security,' and property, and that 'the free enjoyment of such immunities and rights' is to be protected" (Second Class Citizenship, supra, 5 Geo. Mason U. Civ. Rts. L.J. at p. 150) under the Fourteenth Amendment, which would confer citizenship on all persons born in the United States and imbue them with every right of citizenship, including the right to keep and bear arms. (Ibid.) In more recent times, Congress has continued to recognize that the right of law-abiding citizens to keep and bear arms is guaranteed by the Second and the Fourteenth Amendments. (Firearms Owners' Protection Act of 1986, Pub.L. No. 99-308 (May 19, 1986) 100 Stat. 449.)

The judiciary, too, has consistently acknowledged the interplay between express provisions and implicit protections. In Poe v. Ullman (1960) 367 U.S. 497 [81 S. Ct. 1752, 6 L. Ed. 2d 989], the seminal case in the Supreme Court's fundamental rights jurisprudence, Justice Harlan, dissenting, argued the Fourteenth Amendment due process clause protects privacy. He claimed the due process clause covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the Constitution," including "freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." (Id. at p. 543 [81 S.Ct. at pp. 1776-1777] (dis. opn. of Harlan, J.).) The court continues to cite Justice Harlan's enumeration as part of the full scope of liberty guaranteed by the Fourteenth Amendment against state infringement. (Planned Parenthood of Southeastern Pa. v. Casey (1992) 505 U.S. 833, 848-849 [112 S. Ct. 2791, 2805-2806, 120 L. Ed. 2d 674]; Roe v. Wade (1973) 410 U.S. 113, 169 [93 S. Ct. 705, 734-735, 35 L. Ed. 2d 147] (conc. opn. of Stewart, J.); Griswold v. Connecticut (1965) 381 U.S. 479, 499 [85 S. Ct. 1678, 1689-1690, 14 L. Ed. 2d 510] (conc. opn. of Goldberg, J.).)


We got it right two decades ago: "The constitutional bedrock upon which all equal protection analysis rests is composed of the insistence upon a [23 Cal. 4th 507] rational relationship between selected legislative ends and the means chosen to further or achieve them." (Hays v. Wood, supra, 25 Cal. 3d 772, 786.) The reasoning on which we relied has even greater force now. " 'The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.' " (Id. at pp. 786-787, quoting Railway Express v. New York (1949) 336 U.S. 106, 112-113 [69 S. Ct. 463, 466-467, 93 L. Ed. 533] (conc. opn. of Jackson, J.); Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv. L.Rev. 1, 8.) It is true, of course, that even a searching equal protection analysis will not preclude all underinclusive classifications. Rational basis with bite merely requires that when a legislature addresses an area of concern "in less than comprehensive fashion by 'striking the evil where it is felt most' [citation], its decision as to where to 'strike' must have a rational basis in light of the legislative objectives." (Hays v. Wood, supra, 25 Cal.3d at p. 791, quoting Werner v. Southern Cal. etc. Newspapers, supra, "35 Cal.2d at p. 132.) The anomaly here, of course, is that those complaining of unequal treatmentgun owners and dealersare not a powerless minority, but rather one of the most focused and well-financed interest groups in modern American politics.

Politics is the art of the possible under pressure. "Everything that emerges from the legislative forum is tainted by its journey through the lobby. And the demand for perfection must inevitably compromise with the hard facts of political life." (Tussman & tenBroek, The Equal Protection of the Laws (1949) 37 Cal. L.Rev. 341, 350.) The pledge of equality before the law becomes meaningless if courts routinely validate legislative acquiescence to the strongest pressure group; but democratic processes are undermined if courts exhibit zero tolerance for any deviation from the great principle of equal protection. And the toughest and most delicate of questions is how to apply the principles of equal protection in a case like this one which defies or perhaps redefinesthe paradigm. The answer does not depend on "a mechanical application of convenient formulae," but rather requires a "complex and creative act of judgment." (Id. at pp. 350-351.) In this narrow intersection, rational basis analysis and heightened scrutiny may look the same.

Plaintiffs complain that the ban is irrationally underinclusive. Admittedly, the Legislature's findings and declarations seem internally inconsistent. [23 Cal. 4th 508] While declaring that it banned the semiautomatic firearms listed in Penal Code section 12276 because each weapon "has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings," the Legislature goes on to declare that it does not intend "to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (Pen. Code, § 12275.5.) Conspicuous by its absence is any finding that the listed weapons differ from those not listed with respect to the salient characteristic, namely, their "rate of fire and capacity for firepower." (Ibid.)

On the other hand, plaintiff's claim that the ban is irrational because it will have no effect on violent crime proves too much. The insistence upon a rational relationship between selected legislative ends and the means chosen to further them cannot be so exacting. To declare murder a crime will not prevent murder. Prohibiting the possession of weapons by convicted felons will not stop criminals from obtaining guns. Assessing ever greater penalties has not eliminated the scourge of drug abuse. Means scrutiny assumes the law will have some effect and compares that effect with the means the Legislature has chosen.

Were courts to overturn every legislative action that is likely to be ineffective, few laws would survive. As in other spheres of human endeavor, legislative action is often fated to be more symbolic than real, and the understandable human desire to do something to address the crisis of the moment, not to mention the political necessity of being seen to be doing something, may be the real object of many legislative exercises. (See Kobayashi & Olson, In re 101 California Street: A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of "Assault Weapons" (1997) 8 Stan. L. & Pol'y Rev. 41, 43.) And, to be fair, the most severe problems confronting uslike the current plague of violenceare quite beyond the capacity of government to cure. As Solzhenitsyn observed half a century ago, "the line separating good and evil passes not through states, nor between classes, nor between political parties eitherbut right through every human heartand through all human hearts." (Solzhenitsyn, The Gulag Archipelago (1992) p. 615.)

Constitutional provisions divide into two categories: the "historically defined hard core of procedural provisions," including the Bill of Rights, the mechanics of institutional arrangements, political processes, and power allocations (Bickel, The Morality of Consent (1975) p. 29) and the "constitutional generalities" which must make it possible for future battles to be [23 Cal. 4th 509] fought and for the Constitution "to transcend and to endure beyond the fiercest political differences." (Bickel, The Least Dangerous Branch (1962) p. 105.) While the courts must enforce both, the necessary open-endedness of concepts like equal protection means judicial review has important practical limits in a democracy. Where legislative compromise is still possible under conditions which are likely to fairly reconcile competing interests, courts may decline to intervene. The court's duty to restrain the tyranny of the majority must be measured against its obligation to act prudentially and with deference to the political process. Under our regime, a court must oppose arbitrary injustice even when acts of oppression have been duly enacted, and may vouchsafe no answer though contending political forcesmomentarily in equipoiseteeter on the edge of tyranny.

Here, the underinclusiveness of the statute is not an attempt to exploit a despised minority. Instead, the Legislature sought to satisfy its need to do something about gun violence without awakening the political enmity of a large and effective constituency. Gun owners may be, as amici curiae argue, "a class of people subjected ... to vicious stereotypes," but in the political realm a vicious stereotype is a constitutional disadvantage only when it results in impotence.


The issue before us may be among the most troubling and intractable of the last 30 years. Predictably, as cultural disintegration accelerates, the level of lethal violence escalates. Even cynics, quick to accuse elected officials of political posturing and empty symbolism, are stunned by the steadily mounting body count. Like the poet, we are forced to "put [our] eyes on a diet" because our "tears are gaining too much weight." (Kaufman, Golden Sardine (1967) "Heavy Water Blues," p. 60.) It is impossible not to grieve for the thousands of young men cut down in their prime; impossible not to mourn toddlers slaughtered in the midst of innocent play; impossible to ignore the grim reality of schoolchildren whose final moments echo with screams of terror and the sudden slap of bullets. And worse even than the slaughter of innocents is the death of innocence. All too often, the killers are children, too.

Some antigun advocates candidly admit they welcome " '[shooting] incidents' " and hope " 'more heinous ones with more tragic or more important victims' " will help move public opinion beyond support for narrow controls to the desired goal of complete disarmament. (Kates, Gun Control: Separating Reality From Symbolism (1994) 20 J. Contemp. L. 353, 358, quoting Ross, Book Review (1992) 98 Am. J. Soc. 661.) Amitai Etzioni, as spokesman for the Communitarian Network, dismisses the gun control measures [23 Cal. 4th 510] that have been enacted and those currently under discussion as but " 'vanilla-pale' " measures. (Kopel et al., Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibitions (1997) 56 Md. L.Rev. 438, 450, quoting Etzioni et al., The Case for Domestic Disarmament (1992) The Communitarian Network