[/url]www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2001/06/29/MN185060.DTL[/url]

Gunmakers win round in high court
Only state attorney general can outlaw assault weapons

Harriet Chiang, Chronicle Legal Affairs Writer



In a victory for the gun industry, the California Supreme Court ruled yesterday that law enforcement and trial judges do not have the authority to outlaw firearms as illegal assault weapons.

Only the state attorney general has the power to add to the list of outlawed firearms under the state's 1989 assault weapons ban, a move intended to give gun owners adequate notice, the court said in a 4-2 vote.

The justices overturned a Kings County judge's decision to ban an "AK" rifle because it was only slightly different from the Chinese-made AK models specifically outlawed under the 1989 ban. The weapon is popular among drug dealers and gang members because it is inexpensive and packs high firepower.

The decision could affect cases brought under the 1989 law, the nation's first ban on assault weapons. But the impact of yesterday's ruling may be softened by an amendment to the law.

The original law outlawed a specific list of more than 60 weapons. But Gov. Gray Davis signed an amendment in 1999 banning weapons based on their characteristics, an effort to ban "copycat weapons" designed with slight modifications to skirt the original law.

Gun control advocates also say that state Attorney General Bill Lockyer is far more aggressive than his predecessor, Dan Lungren, in adding to the list of banned weapons.

Nonetheless, Chief Justice Ronald George issued a strongly worded dissenting opinion, saying that the Legislature intended to ban the entire series of AK rifles, not just those specifically listed.

He accused the court of creating a new loophole in the law.

"The majority eviscerates a key provision of California's Assault Weapons Control Act that is directed at a type of assault weapon commonly used by drug dealers and gang members," George wrote.

But in the majority decision, the court agreed with the National Rifle Association that allowing trial judges to ban a weapon could lead to firearms' being outlawed in some counties and not others.

"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," Brown said.

The decision was a victory for Jimmy W. Harrott, a Delano attorney who received the AK rifle as part of a gun collection he received from a client as payment for his legal fees.

The gun collection had been seized from the client by the Kings County Sheriff's Department, which refused to turn over the AK rifle.

Harrott sued,and Kings County Superior Court Judge Peter Schultz ruled against him, finding that the rifle was banned even though it was not specifically named on the list of assault weapons.

But a state appeals court in Fresno reversed that decision, saying the state Attorney General had the sole power to decide which firearms qualified as assault weapons.

In yesterday's decision, the high court sent the case back to the trial court because the state attorney general now argues that the rifle is on the banned list.

"We're pretty happy with the decision" said Harrott's attorney, John Dulcich. The statute is confusing for gun owners, he said, because it is vague and leaves a lot of discretion to the state attorney general.

Dennis Henigan, general counsel for the Center to Prevent Handgun Violence in Washington, D.C., said that the state Legislature clearly intended to ban the entire family of AK guns. But Henigan, who filed a brief on behalf of several law enforcement groups, said that the effect of the decision was limited by the 1999 amendment and Lockyer's aggressive enforcement of the law.

E-mail Harriet Chiang at [email protected].

©2001 San Francisco Chronicle   Page A - 3

The way it works (today) is this:

Look at the current list.  IF you can find a lower that doesn't match the exact designations on the list, and IF you can find an FFL who will import one for you, then technically you could buy that lower in the PRK.  Of course, the lower could not be configured with a pistol grip unless/until that lower's designation was specifically added to the list, which Lockyer can now do at anytime at his whim.

For those of you in the PRK who want an AR lower, get to work NOW and do it FAST.  The door that was closed as been opened a tiny crack, but expect it to be closed quickly.

-Troy