California sued over law that holds industry responsible for harm caused by guns

The National Shooting Sports Foundation claims the new state law is unconstitutional.

by Sam Ribakoff, Court House News, May 23, 2023

(CN) — California Governor Gavin Newsom heralded a new state law that's set to go into effect in July as an important tool in preventing more mass shootings and other gun related deaths by holding the gun industry responsible for harm caused by their weapons. But the initiative came under fire Tuesday, when the National Shooting Sports Foundation filed a federal lawsuit that claims the law is unconstitutional. 

The law, signed in 2022 along with a number of other gun control measures, allows Californians, the state, and local governments to sue gun manufacturers, distributors and dealers that don't follow strict safety and marketing standards — targeting, for instance, those that market their products to people at risk of harming themselves or others, and market weapons to minors. 

Newsom signed the bill into law weeks after the U.S. Supreme Court’s majority decision in New York State Rifle & Pistol Association, Inc. v. Bruen which lifted most state laws on carrying guns in public.

In its lawsuit filed in the U.S. District Court for the Southern District of California against Rob Bonta, the state's attorney, the national trade association for the firearm industry claims that Newsom signed the law in open defiance of the Bruen decision.

“California’s General Assembly and Governor Newsom made a spectacle of defying the U.S. Supreme Court’s Bruen decision when this bill was passed and enacted,” Lawrence Keane, National Shooting Sports Foundation senior vice president and general counsel, said in a statement. “This law is openly hostile to the firearm industry and also defiant to Congress, the U.S. Supreme Court and the Constitution. Governor Newsom’s angst toward the foundations of America’s freedoms exceeds the borders of his state and his law attempts to exert California’s radical gun control agenda across the United States. NSSF will defend our Constitutionally-protected industry against the broadsides of this extremist agenda.”

The organization claims the law is unconstitutional as it violates the Bruen decision’s interpretation of the Second Amendment that gun laws must be “consistent with this Nation’s historical tradition,” and guns that are “in common use today” cannot be explicitly banned. The lawsuit says California’s law preempts federal law by applying a different standard, 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 allow 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.”

“Because of the nature of firearms and self defense, characteristics that might make a weapon 'most suitable for assaultive purposes' are quite likely the exact characteristics many citizens will prioritize in selecting a firearm for self-defense," the lawsuit states. 

The National Shooting Sports Foundation also claims the law is an unconstitutional extraterritorial regulation, since it could affect businesses operating outside of California.   

As an example, the lawsuit outlines a scenario in which a gun manufacturer that operates in New Hampshire, Arizona and North Carolina, and sells their guns to distributors, faces litigation under the California law because of where those guns end up.

”So an out-of-state company could face California liability if one of its out-of-state distributors got robbed or, more likely, sold to a licensed retail outlet that inadvertently sold one of the manufacturer’s products to a person prohibited from possessing it,” the lawsuit states. “None of that is remotely consistent with the Constitution. Indeed, imposing state-law liability (and damages and other relief) on out-of-state actors for actions taken entirely out of state is the definition of unconstitutional extraterritorial state regulation.”

In a similar vein, the National Shooting Sports Foundation claims that the law violates the Due Process Clause because it punishes one private party for the conduct of another party.

“This is akin to taking Ford and Anheuser-Busch to court for causing drunk driving accidents,” said Mark Oliva, the managing director of public affairs for the National Shooting Sports Foundation.

Oliva said his organization is tracking similar gun regulation laws in multiple states, including New York, New Jersey, Hawaii and Illinois.  

“This is an attack on First Amendment rights as well,” Oliva added.

The lawsuit also claims that the law violates the First Amendment, because gun marketers can be held responsible for the harm caused by the guns they market.

The California Department of Justice did not immediately respond to requests for comment.

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Hawaii HB426 - Act 28: “Establishes standards of conduct for firearm industry members. Authorizes any person who has suffered harm because of a firearm industry member's violation of the standards of conduct to bring a civil action. Authorizes the attorney general or any county attorney or public prosecutor to bring a civil action against a firearm industry member for violation of standards of conduct.”

Complaint: NSSF v. Bonta

News Release: NSSF CHALLENGES CALIFORNIA’S LAW ENCOURAGING FRIVOLOUS FIREARM INDUSTRY LAWSUITS