Earlier this year California Gov. Gavin Newsom called on his fellow Democrats in control of the state legislature to pass a bill aimed at both the firearms industry and a Texas law that empowered private citizens to sue anyone who performs or “aids” an abortion after the sixth week of pregnancy by allowing Californians to sue manufacturers of so-called assault weapons, .50 caliber rifles, or “precursor parts” if individuals unlawfully transport, sell, lend, or lease any of those items within the state’s borders. The bill, which is pure political clickbait, was introduced with much fanfare but has been quietly stewing in committee ever since.
With the dual decisions in Bruen and Dobbs last week, however, SB 1327 was suddenly a top priority once again, and this week the Assembly approved the measure along party lines. The Senate still needs to cast a procedural vote before the legislation gets to Gov. Gavin Newsom’s desk, but in short order this bad bill will become law.
The Supreme Court famously allowed the Texas law to take effect without considering a request for a temporary restraining order. Will the same be true for California’s new bounty on gun makers? Constitutional law professor Eugene Volokh says it’s possible, but notes that the state’s ban on “assault weapons” may not be long for our post-Bruen world.
“It makes it harder for the government to justify these kinds of laws,” Volokh said of the latest ruling, the court’s first major gun-related decision since 2008. “Certainly, some of the conservative justices have expressed skepticism about theses bans.”
He said, however, that California’s ban on ghost guns — which the user assembles using parts that are sold without serial numbers or background checks —would likely be easier to defend because it’s difficult to argue that requiring serial number infringes on the Second Amendment right to bear arms.
Yeah, there are a couple of different issues with what looks to be California’s next gun control law. First there’s the matter of whether or not the underlying laws targeting semi-automatic rifles and unserialized firearms will be held to be constitutional by the Supreme Court, but there’s also the issue of allowing citizens to sue gun makers if a private individual violates those gun control laws. And this is just one of at least two bills heading to the governor that are designed to bankrupt the gun industry through junk lawsuits. The other, approved by the state Senate on Monday, would allow gun manufacturers to be sued by private citizens who have “suffered harm” from one of their guns if they can demonstrate that the gun company wasn’t abiding by a new “firearm industry standard of conduct” that’s to be developed by the state.
The code of conduct “would require a firearm industry member, as defined, to establish, implement, and enforce reasonable controls, as defined, take reasonable precautions to ensure that the member does not sell, distribute, or provide a firearm-related product, as defined, to a downstream distributor or retailer of firearm-related products who fails to establish, implement, and enforce reasonable controls, and adhere to specified laws pertaining to unfair methods of competition, unfair or deceptive acts or practices, or false advertising. The bill would also prohibit a firearm industry member from manufacturing, marketing, importing, offering for wholesale sale, or offering for retail sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety, safety in California, as specified.”
If a gun store violates state or federal law, in other words, the gun manufacturer will have to pay the price, even if there’s no way anyone at the gun company could have known or policed the conduct of the store’s employees. The language about firearms marketing is also troubling. Gun control activists can point to any number of politically-motivated studies that claim owning a gun increases your risk of being shot, so if a gun maker markets a pistol by implying or stating outright that you’re safer armed than disarmed, private citizens could arguably sue them for false advertising.
All that’s bad enough, but you can just imagine the broad definition of “abnormally dangerous” the state will come up with when it comes to advancements in firearms technology. Not only will this be used to keep many new products from coming to market, it could be used to go after almost every firearm currently offered for sale if the state decided that, now that a few small manufacturers are pledging to bring “smart guns” to market this year, all non-“smart guns” are abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety in the state.
There is, however, the fact that these new laws have no historical analogue at any point in American history save for the abortion law in Texas, which can hardly be considered longstanding and has not, in fact, been officially upheld by the Supreme Court. Even the Ninth Circuit should reasonably conclude, then, that these gun control laws aimed at bankrupting the firearms industry are unconstitutional given the text, history, and tradition of the Second Amendment, and the case should be even easier to make before SCOTUS if and when it gets that far. In order for that to happen, however, a gun company may have to get sued first.
I hope the Supreme Court isn’t going to wait another 12 years between Second Amendment cases, because there are going to be a lot of truly terrible laws put on the books in reaction to Bruen (and in this case, Dobbs as well). SCOTUS better be ready to step in and swat these laws down, because if not the anti-gun left is going to make it nearly impossible to acquire those arms we have the right to keep and bear.
