California Gov. Gavin Newsom thinks he proposed something clever. After all, he took the Texas abortion bill and flipped the script. Now he wants to do the same thing to gun manufacturers.
Of course, people tried to sue gun makers for years previously, so I don’t think he’s actually done anything particularly innovative here except for the framing.
And now gun rights groups are gearing up to fight back.
One such group is the Firearms Policy Coalition.
The California governor directed staff to draft a bill that would allow private citizens to seek injunctive relief “against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California,” which raised alarm bells among some gun rights advocates.
“[We] predicted that tyrants like Gavin Newsom would use the Texas model against fundamental human rights including the freedom of speech and the right to keep and bear arms,” the Firearms Policy Coalition said in a statement on Saturday.
“FPC’s work to address Newsom’s policy preferences won’t end at litigation,” the group added. “For example, we will continue to robustly promote the right and ability to personally manufacture firearms at home, including by 3D printing and the sharing of knowledge.”
During oral arguments last month over the Texas abortion law, also known as S.B. 8, the conservative-leaning Justice Brett Kavanaugh raised a hypothetical situation with Texas Solicitor General Judd Stone, asking about the “implications of your position for other constitutional rights.”
Kavanaugh asked whether the same procedures Texas used to allow abortion providers to become subject to private lawsuits could be used on a seller of an AR-15 semi-automatic weapon, asking whether weapons providers could be theoretically sued for $1 million.
This is a problem, to be sure.
However, there are some significant differences that we need to keep in mind. Those differences mean the courts will likely be forced to look at this case differently.
First, there’s the Protection of Lawful Commerce in Arms Act (PLCAA). That’s a federal law that blocks lawsuits against gun manufacturers from these kinds of lawsuits. Being as it’s federal law, it should trump state laws to the contrary.
Second, there’s the fact that gun companies cannot be expected to know that the product they sold in a lawful fashion would be used for criminal purposes. Abortion providers are providing abortions. They know what they’re doing is abortion. Regardless of how you feel about abortion, that shouldn’t be a controversial position. Abortion providers are performing abortions.
A lawsuit over that act is because everyone knows what that provider was doing, including that provider.
But a gun manufacturer can’t be expected to have that level of knowledge.
Let’s say a company makes an incomplete handgun lower receiver. They get an order from a PO Box in Nevada. Now, a lot of rural addresses use a post office box number, even though they’re actually residences. So that manufacturer sees nothing wrong with it and sends the product along.
The problem is that the address is used for someone who zips across state lines to pick up the products, then takes them back into California to make them into functional firearms. One of those guns gets used in an armed robbery that results in someone being killed.
Under Newsom’s proposal, that company can be sued because of things that happened way beyond their control. That’s something the courts will have to decide.
The good folks at the Firearms Policy Coalition will be among those who are going to challenge this–personally, I think everyone will challenge this–and I sincerely hope the courts have the good sense to notice those profound and serious differences.
Newsom needs to get spanked on this by the courts, but then he needs to get spanked by the voters as well. Then again, this is California, so I’m not holding my breath.