Date: Tue, 5 Aug 1997 09:05:43 -0400 (EDT)
From: <[p--t--n] at [utdallas.edu]>
To: Multiple recipients of list <[n--b--n] at [Mainstream.net]>
Subject: INSIGHT:ANTI FIREARMS LEGISLATION:Hesley 2/14/91 Memo (fwd)
---------- Forwarded message ----------
Date: Mon, 04 Aug 1997 17:18:43 -0700
From: Joe Horn <[c--su--s] at [primenet.com]>
Reply-To: [texas gun owners] at [zilker.net]
Subject: INSIGHT:ANTI FIREARMS LEGISLATION:Hesley 2/14/91 Memo
Posted to texas-gun-owners by Joe Horn <[c--su--s] at [primenet.com]>
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I just saw this on the firearmsreg list (the UCLA Firearms Academic,
Professional and Regulatory discussion list) not Frank Warren's listbox.com
list of the same name. It gives a rare insight into the logic used in
approaching legislation and should be taken to heart by activists if they
intend to successfully oppose legislation. This is insight into California
legislating, but I am sure it will be no more or less than this
in other venues.
Joe Horn
IQC#1933156
TO: Patrick Kenady
Assistant Attorney General
FR: S. C. Helsley, Assistant Director
Investigation & Enforcement Branch
Roberti-Roos Assault Weapons Control Act of 1989
On February 5, 1991, DAG Paul Bishop asked me, on your behalf, to comment
on the process that resulted in Roberti-Roos Act. It is important to
point out that my recollection may not be entirely accurate concerning
the sequence of events, but the overall flavor will be apparent.
In October 1988, I was asked to comment on the assault rifle issue by the
Director's Office. A copy of my memorandum is Attachment 1.
In December 1988, 1 was directed to attend a meeting in Oakland with a
number of law enforcement officers and prosecutors. Their objective was
to reinvigorate the push to achieve some level of assault weapon control.
As a result of my attendance, I became the Departmental lead for issues
involving firearms technicalities. As a follow-up to the meeting, a
survey instrument to assess the assault weapon problem was developed and
distributed by DLE. The results were not compelling and many large
agencies did not respond. A generic description of what was not an
assault weapon was also developed and became the foundation for later
"lists." The first Legislative draft was also prepared which included the
notion of a commission which would decide twix good and bad assault
weapons.
In early January 1989, the Attorney General and his Executive Staff were
briefed on the difference (or lack thereof) between assault and
non-assault weapons. At the conclusion of that briefing, the Attorney
General, to the obvious displeasure of some of his key advisors, said
that he would not support assault weapon legislation unless hard data
could be develped.
With the Purdy Stockton school yard shooting in January 1989, the
Attorney General immediately announced his support for the Roberti/Roos
initiatives. In late January, a meeting was hosted by Attorney General
Van de Kamp in Los Angeles that was attended by Senator Roberti,
Assemblyman Roos, Sheriffs Block and Craig, and a number of ranking law
enfforcement administrators.
A number of issues were addressed.
* Senator Roberti described his overall strategy and
emphasized the need to move quickly.
* Four weapons (AK 47, UZI, MAC, and the Street Sweeper) would the
focus of the legislation.
* It was agreed that certain weapons probably had too large
constituency to ever be worth the risk of including, i.e., Ruger Mini 14,
MI Carbine, MI Garand, etc.
* Information on assault weapons would not be sought from forensic
laboratories as it was unlikely to support the theses on which the
legislation would be based (Attachment 2).
During the next three weeks which led up to one of Senator Roberti's key
strategic milestones -- the Assembly of the Whole on February 13, 1989 --
the following events occurred.
* The original four-gun commission configuration of December was
discarded.
* I directed the compilation of a list of all weapons which were
not covered by the exclusionary language developed in December.
* Roberti and Roos took different tacks with their bills.
* The DOJ approach alternated between language which listed "good"
semi-automatic weapons and banned everything else, and a "bad" Iist which
"blessed" those weapons not on the bad list.
As we approached the final days of legislative activity on the two bills,
we experienced what I would describe as a "feeding frenzy" as it became
clear that the NRA was in retreat. The good gun/bad gun list was ever
changing as modifications were made by legislative request, by "staffers"
who wanted an emphasis on foreign firearms and through the personal
efforts of an Oakland Police Department Sergeant. As late as March 17th,
our legislative staff was trying to get weapons like the HK PSG-1 and the
FN/FAL removed from the list.
As finally comprised, the list had become an odd collection of firearms
which range from the long out of production, to exorbitantly expensive,
to the "evil" AK 47. As no specifically defined problem drove our
efforts, such an odd collection should not be surprising.
The old adage of "If you don't know where you're going - you won't know
when you get there" seems relevant to our efforts in support of the
Roberti/Roos Act. The group for whom we were performing our staff support
had different long-term objectives. The objectives ranged from control of
a limited number of weapons to sweeping controls. Senator Roberti clearly
indicated that he saw his bill as a "first step." My function throughout
the process was to generate lists of weapons to be banned or exempted. As
these lists were produced, there was ongoing anxiety about how to
describe the weapons in the legislation. The "AK" is the best example.
Our attempt to describe them had four distinct stages. They were:
* All AVTOMAT KALASHNIKOV semi-automatic rifles of military style.
* By model AKS, AKM, etc.
* By manufacturer or importer NORINCO, POLY
TECHNOLOGIES, etc., and
* Finally by AVTOMAT KALASHINIKOV (AK) series
The reasoning which led to the final "series" description was based on
four factors. They were:
* Not all AK's were of "military style."
* Given the time frame involved, we were not convinced that we
could determine all the manufacturers whose AK's has been imported.
* The use of model numbers/names was impractical as
wholesalers were advertising weapons with designations that were at odds
with the manufacturers description.
* Manufacturers emphasized the semi-automatic AK's lineage with the
military version. Advertisements also referred to "series."
Since the law took effect, AK 47's have been assembled in the United
States with a whole new set of model-numbers (Attachment 3).
At least three other weapons have an equally confusing status. There are
AR-15 and FN/FAL type weapons that are now being built and sold with
"after market" receivers and surplus parts. They are exactly the same as
the weapons identified on the Roberti/Roos list - only the company name
on the receiver is different. Given that the argument the Department made
in the Fresno Court hearing was that the specific weapons on the list
were the legislation's-target and not the generic "series," it would seem
that "aftermarket" AR-15's and FN/FAL's must move to the "good gun" list.
Using the Fresno logic, how can any of the AK's be covered? The third
weapon is the SKS. When the list was developed, there were two distinct
models - one with a fixed magazine and the other with a detachable
magazine. The detachable magazine model is identified on the
Roberti/Roos list. Since the law took effect, "after market" magazines
have become available for the fixed magazine version which is a "middle
ground" half detachable half fixed magazine. The Roberti/Roos language
does not define the difference between fixed and detachable magazines. It
is important to note that a number of other weapons present equally
vexing problems.
With the benefit of two years of perspective on our Roberti/Roos efforts,
I have concluded that little could have been done to improve our
precision. Some of the challenges we faced were:
* No specifically defined problem.
* Artificial distinctions were made between semi-automatic weapons.
The AK 47 was targeted but the Ruger Mini 14 was
exempted. The two weapons are the same caliber, magazine
capacity, size, etc.. Past legislation which focused on machine guns and
submachine guns was successful because it dealt with an entire class of
weapons. The Roberti/Roos Act attempts to make
distinctions between weapons in the same class (semi-automatic).
* Too many people were adding or subtracting weapons from the
legislation.
* Most if not all of the principal players in crafting the
legislation
had absolutely no knowledge of firearms.
* Most of the weapons on the list are low production or long out of
production items that constitute absolutely no conceivable threat.
* No data collection mechanism was built into the legislation to
provide data-for objective decisions concerning possible future additions
or deletions.
* The ongoing diversity and inconsistency of legal opinions: For
example, in May 1989 Deputy Legislative Counsel Thomas Heuer opined that
the Norinco 56MS (an AK 47 variant) which Purdy used was not covered by
the bill Attachment 4). While we were crafting the legislative language,
the foundational legal logic provided was that the AK/AR "series"
approach was valid. This seems to have now been cast aside.
A lot of people worked very hard to make the Roberti/Roos Act successful.
Those with some knowledge of firearms felt the task was an impossibility.
Those with little or no knowledge of the subject were ever emboldened. As
Montaingue said "Nothing is so firmly believed as that which is least
known." The more our staff has worked with the legislation the more
confused they have become. How the average cop on the beat or Joe "Six
Pack" who owns one of the weapons will ever figure it all out escapes me.
There is no simple fix. Publication of a manual for public or law
enforcement use will require that we reach some yet unreached conclusion
about which weapons are covered.
We can effectively control all semi-automatic weapons or leave them all
alone. What I don't think we can accomplish is proper
implementation of a vague and ambiguous law.
================================================================
"Life is tough. It's tougher if you're stupid."
- John Wayne as Sgt Stryker, "Sands of Iwo Jima"
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