California Gun Law Shows Nonpartisan Open Primary Effect

California Gun Control SB 140

Last week, the United States Senate could not reach a consensus on gun trafficking or background checks. The inaction in the U.S. Senate is to be contrasted with the final passage on supermajority vote of SB 140 in the California Legislature and shows the effect of the Open Primary and competitive redistricting by commission in creating a less partisan atmosphere.

Connecticut, as an example, last month passed comprehensive legislation on a bipartisan vote. Similarly, on a bipartisan vote, Delaware expanded its current verification procedures to cover all firearms on essentially all transactions.

Yesterday, the California State Senate unanimously concurred in minor Assembly Amendments to SB 140 by Senator Mark Leno, thus sending the bill to Governor Brown for his expected signature. The bipartisan votes on SB 140 is the first, but not the last beneficial effect of the Open Primary and competitive redistricting.

California for many years has required registration of handguns at point of transfer of ownership. In addition, persons who move into the state with handguns have to register the same and licensed collectors who acquire guns outside the state have to register them as well.

There is also a voluntary system of firearms that has been in code for over 25 years and is now reflected in Penal Code Section 28000. The Department of Justice has taken the position that it will accept a variety of means of registration and place in the centralized registry using the “voluntary system” codified in Section 28000 of the Penal Code where the ownership of a firearm is, where the person is not within a prohibited status, the gun is not reported lost or stolen, and the person is at least 18 years of age.

In 2001, the Legislature enacted SB 950 by then-Republican Senate Leader Jim Brulte, who is the State Republican Party Chair.  In a nutshell, SB 950 mandated that the CA Department of Justice compare databases of gun registrants, DMV files, and the list of persons who become ineligible to possess guns and combines that into an Armed Prohibited Persons File, which seeks to disarm the same using that APPS list.

In July of 2003, CA DOJ received funding to build a database of this information — the Armed and Prohibited Persons System — which became operational in 2006 and made fully available to local law enforcement in 2007. The APPS program has been copied in other states, principally Connecticut, Illinois and New York. Polling shows overwhelming support for the program with the wider pool of voters not interested in the funding sources.

In addition, in 2003, AB 161, authored by then-Assemblyman Darrell Steinberg, was enacted into law. AB 161 allowed the use of the DROS account for general gun law enforcement by CA DOJ.

At the time of AB 161, there were at least 14 discrete gun fees from various users going into DROS. At that time, there was a consensus that the pooling of resources and sharing of equipment and supervision was consistent with California law, required by code, and made sense. While certain parties objected to this consolidation and expenditure, no one challenged it.

The code sections amended by AB 161 were subsequently amended often on super majority votes. As the California Supreme Court has repeatedly noted, under the re-enactment rule set forth in Article IV, § 9 of the State Constitution, the code section was in effect re-enacted in its entirety with two-thirds votes on numerous occasions. If there was any legal validity to a “tax challenge” to the use of the money for these purposes based on a super majority vote basis, those subsequent votes eliminated that argument.

In 2011, because of a temporary withdrawal of General Fund support for APPS, SB 819 by Senator Leno was enacted.  SB 819 amended the code section amended by AB 161 to insert the word “possession” in two places. The reason for this was to expressly allow the use of DROS monies for APPS Law enforcement.

Because registration tied to possession has long existed, SB 819 was really a technical clarification of law. After SB 819 was enacted, Governor Brown indicated that on a going forward basis, APPS should be funded permanently out of DROS.

Over time, because of the spikes in transactions and for other reasons, the monies in the DROS account have grown. At the same time, the number of prohibited possessors has grown with something in excess of 20,000 persons with about 39,000 guns, including almost 2,000 assault weapons, on the APPS list.

To address the backlog, SB 140 was introduced. In essence, 140 appropriated or reallocated within the DROS account $24 million to address this backlog within 3 years. It had related provisions on reporting. The bill passed both houses of the Legislature on almost unanimous votes and it’s a testament to the Open Primary and Commission Redistricting.

There is no doubt given NRA and other opposition, but for the Open Primary and Commission Redistricting, SB 140 would have been in trouble. Instead, 12 Assembly Republicans voted for the measure.

With exception of Assembly Republican Leader Connie Conway, who no doubt heard from Jim Brulte on this issue, every single Assembly Republican yes vote came from a competitive district, a district in transition, or where the Assembly member needs cross-over votes to get into a runoff to get elected in a General Election.

As one Senate Republican staffer explained to a gun rights lobbyist, “try explaining the funding source in Paragraph 8 of a 4 paragraph story why Republicans did not want to disarm criminals and the mentally ill in an Open Primary.”  In fact, various Assembly Republicans in voting for 140 made the tax argument not realizing that their votes neutered the two-thirds vote tax argument if there was any to begin with.

One final note — during the Assembly Appropriations Committee hearing on SB 140, Assemblyman Tim Donnelly (R-Twin Peaks), who is a poster child of the tea party movement, compared APPS to Nazi gun confiscation. Given the pride that Chairman Brulte takes in APPS, there is no doubt that Donnelly faces a vigorous and well-funded primary challenge in an evolving district.