California law to hold gunmakers liable for harm will remain blocked during litigation

SAN DIEGO (CN) — A California law that allows residents and local governments to sue gun manufacturers, distributors and dealers that don’t follow strict safety and marketing standards while remain on ice while a Second Amendment challenge works its way through the courts, a federal judge ruled Monday.

That law, the Firearm Industry Responsibility Act, was passed in 2022 by the Legislature and championed by Governor Gavin Newsom as a way to hold the firearm industry accountable for perennial mass shootings and gun violence across the country. The bill aims to create a “standard of conduct" for the industry, including by banning the use of products that make guns more suitable for use in assaults. The bill also bans marketing guns to minors.

In 2023. the National Shooting Sports Foundation sued California Attorney General Rob Bonta. In its lawsuit, filed in U.S. District Court for the Southern District of California, the group claims the law violates the Second and First Amendments as well as the commerce clause, a constitutional power granted to the U.S. Congress to regulate commerce. The clause also restricts individual states from hindering interstate trade.

That latter argument appeared most persuasive to U.S. District Judge Andrew Schopler, a Joe Biden appointee who granted the foundation’s motion to block the state from enforcing the law last year.

California then asked Schopler to reconsider his ruling.

The state didn’t offer any new evidence or legal changes or point to any case law to explain why he should reconsider his previous ruling, Schopler found in a order denying the request to amend the preliminary injunction, issued Monday. What the state did argue should have been brought up earlier in the case, he added.

The state argued that it should be allowed severance, meaning to amend the law to make it more constitutionally sound, by adding to the text that the law “may continue to be applied to firearm products that are (1) sold, made, or distributed in California, or (2) sold in other states to California residents.”

But severance is usually done by removing words from the text of the law, not adding words in, Schopler wrote.

“In short, the state has not met its burden of identifying any statutory words that clearly should have been cut to attain a narrower injunction. The court still sees no way for the ‘abnormally dangerous’ gun regulation to pass constitutional muster by severing only portions of it,’” he wrote, quoting his previous ruling granting the foundation’s motion to stop enforcement of the law. “This would amount to lawmaking with a legislative pen, not severing with a judicial scalpel.”

California permits judicial reformation, like rewriting statutes to preserve constitutionality, but only when a judge can see that it’s possible to amend the statute in a way that the Legislature or other government body that enacted the law would prefer over just invalidating the law, Schopler found.

“The state has not carried — nor even attempted to carry — its burden of establishing these difficult prerequisites,” he wrote. “Even if such judicial redrafting were advisable, the state’s edits would not fix the commerce clause problem. Take the attorney general’s proposed requirement that this gun ban only reach out-of-state sales when the buyers are ‘California residents.’ This revised version would still cover out-of-state merchants selling certain out-of-state-made guns in transactions conducted entirely outside California. So, the law would continue to violate ‘the dormant commerce clause as an impermissible regulation of wholly out-of-state conduct.’”

California had a reasonable opportunity to bring its arguments in supplemental briefings to the court before the injunction order was signed but failed despite being ordered to do so, Schopler found.

“What’s more, the state offers a flimsy excuse for omitting its proposals earlier: ‘space limitations.’ But its supplemental-briefing argument on all issues spanned barely 9 of the 10 pages allowed. And the attorney general never asked permission to file excess pages,” he wrote.

The foundation claims the law is unconstitutional as it violates the U.S. Supreme Court’s decision in Bruen that all gun regulations should be consistent with those in force during the 18th and 19th centuries in order to comply with the Second Amendment.

The plaintiffs say California’s law is preempted by federal law by requiring gun industry actors operating in the state to follow a firearm industry standard of conduct, which, among other things, prohibits the manufacturing, marketing, import, or sale of any firearm related product “that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety in California.”

The standard of conduct prohibits the manufacturing, sale or marketing of any product “most suitable for assaultive purposes instead of lawful self-defense, hunting, or other legitimate sport and recreational activities,” or any product that “is designed, sold, or marketed in a manner that is targeted at minors or other individuals who are legally prohibited from accessing firearms.”

The foundation wants the court to find the law unconstitutional and seeks nominal damages.

A spokesperson for California’s Office of the Attorney General said they are reviewing the ruling.

Representatives of the National Shooting Sports Foundation did not respond to requests for comment by press time.