December 6, 2013
Pursuant to Elections Code Section 9005, we have reviewed the
proposed constitutional initiative related to the possession and sale of
firearms (A.G. File No. 13‑0031).
Background
Federal Firearm Laws. TÂhe Second Amendment
of the U.S. Constitution guarantees the right of citizens to keep and
bear arms. While the Second Amendment confers specific rights regarding
the right to bear arms, the courts have allowed federal, state, and
local governments to establish prohibitions and restrictions on firearm
ownership. For example, a number of existing federal laws regulate the
possession of firearms, such as by requiring dealers to register with
the federal government, placing restrictions on shipping and
transporting firearms, and prohibiting firearms in school zones.
In addition, existing federal law restricts the possession of
firearms by certain individuals. For example, federal law prohibits
individuals who are under the age of 21 from possessing handguns and
those who are under the age of 18 from possessing rifles. Moreover,
federal law prohibits felons, individuals convicted of domestic
violence, and certain drug users from possessing firearms. Federal law
also prohibits other specified persons (such as noncitizens and
individuals with certain serious mental health diagnoses) from
possessing firearms. Additional federal laws restrict the possession of
certain firearms and ammunition. For example, federal law restricts the
possession of armor piercing ammunition and requires an extensive
regulatory process to purchase specified firearms.
State and Local Firearm Laws. Like federal
law, existing state law prohibits certain individuals from possessing
firearms. For example, individuals convicted of felonies and certain
misdemeanors are prohibited from possessing firearms either for life or
for specified periods of time. Additionally, certain individuals with
serious mental health problems, mentally disordered sex offenders, and
individuals subject to a protective or restraining order are prohibited
from possessing firearms.
Current state law also imposes additional restrictions on the types
of firearms and ammunition that individuals may possess. For example,
state law generally bans the possession of firearms defined to be
assault weapons and the use of lead ammunition for hunting. (We note,
however, that certain firearms defined under state law as assault
weapons are not prohibited under existing federal law.) State law also
specifies the conditions under which firearms may be transported and
stored, and limits where firearms may be carried. In addition, local
governments can enforce additional firearm-related restrictions. For
example, the county of Los Angeles recently banned the possession of
high-capacity magazines.
State and Local Regulation and Enforcement.
Under current state law, in order to purchase a firearm,
individuals must pass a background check administered by the California
Department of Justice (DOJ) and wait ten days for the background check
to occur. The DOJ background check system searches various federal and
state databases (such as the California Mental Health Database and the
Automated Criminal History System) and uses such information to
determine whether the individual is eligible to purchase firearms under
state and federal law. Individuals are generally required to pay $25 in
fees when purchasing a firearm, which helps support the regulatory and
enforcement activities carried out by DOJ and other state and local
entities. Currently, DOJ keeps registries of assault weapon and handgun
purchases. Beginning on January 1, 2014, DOJ will begin keeping a
registry of all other firearm purchases.
Currently, law enforcement officers are authorized to seize firearms
under various conditions. For example, law enforcement officers may
seize a firearm when (1) allegations of abuse or domestic violence have
been made against an individual, (2) a firearm has potentially been
involved in a crime, or (3) an individual is suspected of possessing the
firearm illegally. Under such circumstances, the seized firearm may be
returned to the owner no earlier than 48 hours after seizure and no
later than five business days after the owner has completed
documentation to retrieve the firearm. In addition, DOJ uses the Armed
and Prohibited Persons System database to identify individuals who,
subsequent to purchasing a firearm that was registered with DOJ, become
ineligible to possess a firearm. Once these individuals are identified,
law enforcement may seize the firearms they possess.
Under existing state law, county sheriffs and local police chiefs
may issue a license to carry a concealed firearm to an individual
who applies for such a license and provides proof of (1) good moral
character; (2) good cause for the license; (3) residence or, under
specified circumstances, employment in the jurisdiction; and (4)
completion of a certified firearms training course. Currently,
information on individuals with concealed weapons permits is maintained
by the issuing agency and is publically available.
Proposal
This measure amends the California Constitution to state that
“individuals have the right to acquire, possess, transport, transfer,
and use firearms for lawful purposes that include hunting, sports
shooting, and for the common defense of self, family, home, and
property.” In addition, the measure specifies that existing state laws
that are in conflict with the provisions of the measure shall be void.
As we discuss below, the measure would effectively limit the ability of
state and local governments to regulate and restrict firearms,
ammunition, and accessories.
Expands Eligibility for Firearm Possession.
Overall, the measure would expand the number of individuals who
may legally possess firearms. For example, the measure would enable
individuals convicted of certain misdemeanors to possess firearms.
However, the measure specifies that the state could still prohibit or
regulate the ownership of firearms by, or the sale or transfer of
firearms to, felons, individuals determined to be a danger to self or
others due to mental illness, and mentally disordered sex offenders.
Limits Restrictions on Firearms, Ammunition, and
Accessories. The measure explicitly prohibits state and
local governments from placing certain restrictions on certain types of
firearms, ammunition, and accessories. For example, the measure
specifies that, unless required by federal law, state and local
governments generally cannot restrict the possession, sale, or transfer
of certain assault weapons. In addition, the measure prohibits state and
local governments from regulating or banning ammunition. However, the
measure does allow restrictions on the use of lead ammunition within
habitat of the California condor and ammunition restricted by the
federal government (such as armor piercing bullets). The measure also
prohibits the state from restricting the sale of magazines and clips not
prohibited by federal law. Finally, depending on the manner in which the
measure is interpreted by the courts, it may also have the effect of
legalizing all firearms currently not restricted under federal law.
Other Changes. This measure also makes
various changes to state law regarding the following:
- Charges Applied to Firearm-Related Purchases.
The measure prohibits state and local governments from
imposing any charge on the purchase of firearms, ammunition, or
accessories except statewide sales taxes. The prohibition would
apply whether the charge is payable to a governmental entity or a
third party. Accordingly, this would eliminate local sales taxes and
the $25 in fees that are currently applied to firearm purchases.
- Concealed Firearms. The measure
prohibits the state from imposing a total ban on the carrying of
concealed weapons. It also prohibits state and local governments
from releasing the personal information of concealed firearm permit
holders.
- Firearm Registries. This measure
prohibits state and local governments from requiring firearm or
firearm owner registration, except as required by federal law.
Accordingly, DOJ would no longer be able to keep or maintain its
firearm registration databases. In addition, the measure prohibits
state and local governments from requiring registration or
fingerprinting for the purchase or transfer of ammunition or
accessories.
- Firearm Seizure. This measure would
limit the ability of law enforcement to temporarily seize firearms.
Specifically, law enforcement officers would only be able to seize
firearms when there are allegations of domestic violence or when
individuals are taken into custody or evaluated for a mental
disorder or illness. Firearms seized due to allegations of domestic
violence would have to be returned within 72 hours. Firearms seized
in circumstances related to mental disorders or illness could only
be held for a reasonable amount of time to allow authorities to
determine whether return of the firearms would be appropriate.
Fiscal Effects
The provisions of this measure would affect both costs and revenues
for state and local governments. We describe the major fiscal effects
below.
Effects on State and Local Revenues. As
discussed above, the measure would prohibit state and local governments
from imposing any charge on the purchase of firearms, ammunition, or
accessories except statewide sales taxes. Thus, local governments would
no longer be able to charge local sales taxes for firearms, ammunition,
and firearms accessories. We estimate that this would reduce sales tax
revenue received by local governments by several million dollars
annually. The measure, however, would likely increase state sales tax
revenue generated for the state by firearm-related purchases. This is
because the measure (1) increases the number of individuals able to make
firearms-related purchases; (2) increases the types of firearms,
ammunition, and accessories that can be purchased; and (3) eliminates
fees and local sales taxes associated with the purchase of firearms. The
precise amount of additional state sales tax revenue that could be
collected is unknown and would depend on choices made by consumers and
how certain provisions of the measure are interpreted by the courts.
In addition, the measure would eliminate the $25 in fees currently
applied to firearm purchases, which would reduce revenue to state and
local governments for various regulatory and enforcement activities
related to firearms by around $30 million annually. As we discuss below,
while some of the activities currently supported by the fee revenue
would be eliminated by the measure, other activities would still be
required under existing state law if the measure was enacted.
Effects on Regulatory and Enforcement Costs.
Overall, the provisions of the measure would reduce costs to
state and local governments of carrying out certain regulatory and
enforcement activities related to firearms that would no longer be
permissible under the measure. For example, the measure would remove
some of the restrictions on possessing certain firearms and prohibit the
state from maintaining firearm registries (such as those that are
accessed by the Armed and Prohibited Persons System administered by
DOJ). At the same time, however, some of the other regulatory and
enforcement activities currently funded by the revenue collected from
the $25 in fees applied to firearm purchases (such as background checks
of individuals purchasing firearms) would still be required under
existing state law if the measure was enacted. The precise cost of these
activities is unknown and would depend on the manner in which the
measure is interpreted and implemented.
Correctional Savings. The measure’s
provisions eliminating certain crimes—such as the possession of certain
assault weapons, or the possession of firearms by certain
individuals—would reduce state and local correctional costs. Although
the precise effect would depend on the interpretation of the measure,
state and local correctional savings could eventually exceed a couple
million dollars annually.
Other Fiscal Effects. Research in other
states has shown that the provisions related to firearm possession
contained in similar measures can result in indirect savings and costs.
On the one hand, savings could result from the potential reduction in
crime due to the deterrent effect of a larger number of citizens
possessing firearms for self defense. On the other hand, increased costs
could result from injuries and death from increased firearms use. The
net impact of these savings and costs is unknown.
Summary of Fiscal Effects. We estimate that
this measure would have the following major fiscal effects, which could
vary depending on the interpretation and implementation of the measure.
- Unknown increase in state sales tax revenue due to increased
purchases of firearms, ammunition, and accessories. Reduction in
local sales tax revenues of several million dollars annually due to
the elimination of local sales taxes on firearm-related purchases.
- Reduction of around $30 million in annual revenue from fees
applied to firearm purchases for various firearm regulation and
enforcement activities. Costs for some of these activities would
still be incurred by state and local governments if the measure was
enacted.
- Reduction in state and local correctional costs that could
eventually exceed a couple million dollars annually.
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