So this happened last night. California Governor Gavin Newsom, having nothing else to do on a Saturday evening, issued the following proclamation . . .
If states can shield their laws from review by federal courts, then CA will use that authority to help protect lives.
We will work to create the ability for private citizens to sue anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in CA. pic.twitter.com/YPBJ00vN6z
— Office of the Governor of California (@CAgovernor) December 12, 2021
On Friday, the Supreme Court let a Texas law stand which allows individuals to sue abortion providers who perform the procedures after 15 weeks. The Court hasn’t upheld the law. Instead, they let it remain in effect while lower courts consider its constitutionality.
Newsom, in a fit of hoplophobic pique, has decided to use the same tool to go after manufacturers, distributors, and sellers of “assault weapons” or “ghost gun” kits in the formerly Golden State. In other words, he’ll work with the legislature to draft, pass, and sign a law that will allow any Californian to sue those who make and sell the kinds of guns Newsom doesn’t like, unleashing a torrent of nuisance suits intended to put such companies and individuals out of business.
There are a couple of problems with Newsom’s brainstorm. First, California already has laws in place outlawing both “assault weapons” and “ghost guns.” Earlier this year a lower court ruled that the ban on “assault weapons” is unconstitutional, but the Ninth Circuit has kept the ban in place until it can overturn review the decision. And it’s also verboten for an individual to make a gun in California without serializing it and passing a background check.
There’s also something called the Protection of Lawful Commerce in Arms Act which the governor seems blissfully unaware of.
As the AP notes, despite last night’s statement, nothing is going to happen any time soon.
Newsom’s gun proposal would first have to pass California’s state Legislature before it could become law. The Legislature is not in session now and is scheduled to reconvene in January. It usually takes about eight months for new bills to pass the Legislature, barring special circumstances.
It’s also pretty clear what the oleaginous chief executive is really doing here.
State Sen. Brian Dahle, a Republican from Bieber, would oppose the plan but predicted it could probably pass California’s Democratic-dominated state Legislature. He said the proposal was most likely a stunt for Newsom to win favor with his progressive base of voters ahead of a possible run for president in the future.
“The right to bear arms is different than the right to have an abortion. The right to have an abortion is not a constitutional amendment. So I think he’s way off base,” Dahle said. “I think he’s just using it as an opportunity to grandstand.”
The Governor’s anti-gun weekend gambit shouldn’t surprise anyone who’s been paying any attention at all. It certainly didn’t surprise the Firearms Policy Coalition.
That’s why, earlier this year, FPC filed an amicus brief in the Texas abortion case supporting the abortion rights activists’ lawsuit opposing the law. As FPC wrote . . .
From Amicus’s perspective, if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms. While the political valences of those issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and Casey, many States view Heller as wrongly decided.
Many in our active comments section came down hard on FPC for “supporting abortion” when the abortion issue wasn’t what motivated FPC’s brief at all. Rather, they had the foresight to see that the unique design of the Texas law provides a blueprint that, if upheld, could be used against Second (or First) Amendment rights by unscrupulous grandstanders like Gavin Newsom. Now, here we are.
Our friends at the FPC wasted no time in responding to Newsom’s Saturday night proclamation. They issued this statement . . .
FPC released the following statement responding to California Governor Gavin Newsom’s latest threats against human rights and the people he works for:
Our brief in Jackson v. Whole Woman’s Health 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. We built FPC Law (FPCLaw.org), the nation’s first and largest public interest legal team focused on the right to keep and bear arms, to be the leader in the Second Amendment litigation and research space, capable of quickly responding to policy changes like those Newsom proposed. Just as FPC secured a trial judgment against the State of California’s unconstitutional ban on so-called “assault weapons” in our Miller v. Bonta case before Judge Roger T. Benitez, we are prepared to litigate these important issues in state courts and then up to the U.S. Supreme Court.
FPC’s work to address Newsom’s policy preferences won’t end at litigation. 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. We recently announced a timely new scholarly article on the Second Amendment right to self-manufacture arms, including firearms. The article, “The American Tradition of Self-Made Arms,” is based on original research by our director of constitutional studies, attorney Joseph Greenlee, and traces the right from Colonial America through modern times. The “article finds that the tradition of building arms for personal use is deeply rooted in American history, and that there is no tradition of regulating self-built arms. Moreover, under Supreme Court precedent, common arms are constitutionally protected regardless of how they are acquired. Thus, the Second Amendment protects an arm that is self-built if that type of arm (i.e., a handgun) is commonly possessed.”
FPC will not only fight Newsom’s war on human rights head-on, we will also actively undermine it through cultural change and empowerment until his authoritarian policies are as irrelevant and impotent as Newsom himself. And Newsom’s unconstitutional ‘wish list’ may be entirely irrelevant soon anyway. Days from now we will be petitioning for Supreme Court review in our Bianchi v. Frosh lawsuit challenging Maryland’s ban on so-called “assault weapons,” a legal scheme much like California’s. Bianchi is an ideal case for the Supreme Court to address these issues once and for all, and we look forward to continuing to execute our mission in the coming months and years.
If Gavin Newsom wants to play a game of constitutional chicken, we will prevail.
