Following the SCOTUS New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision, Governor Newsom signed four new bills concerning gun restrictions and safety: AB 1594, AB 2571, AB 1621, and SB 1327. Generally, these bills are intended to allow civil suit against gun-makers, restrict marketing to minors, restrict ghost guns, and limit the spread of assault weapons. However, these laws are certain to be challenged under the legal standard in Bruen, which held “only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
AB 1594 is the Firearm Industry Responsibility Act. (Civ. Code, §§ 3273.50-3273.55). It creates a right of action to sue firearm industry members for injunctive relief, damages, and attorney’s fees and costs, as well as creating a firearm industry standard of conduct. According to the declaration, the Act will increase accountability for manufacturing, selling, distributing, and marketing products such as unserialized ghost gun build kits, bump stocks, and bullet button assault weapons. The provisions are modeled after other products liability laws and industry standards which prevent foreseeable and unreasonable risk to the public. Therefore, firearm-related products cannot be “abnormally dangerous and likely to create an unreasonable risk of harm,” such as having a design that is “most suitable for assaultive purposes” or promote illegal firearm conversion. An industry member must also reasonably prevent sales to anyone with which the industry member has “cause to believe is at substantial risk of using a firearm-related product to harm themselves or another” (i.e., straw purchasers, firearm traffickers, etc.). In addition, an industry member must prevent loss or theft. The indirect effect to consumers will likely be an increase in the cost of firearms and ammunition, because the firearm industry members will protect themselves financially by spreading the cost of insurance and litigation to consumers.
AB 2571 prohibits advertising firearm-related products to minors. (Bus. & Prof. Code, § 22949.80). Although advertising is usually protected under the First Amendment, existing laws restrict the content and placement of alcohol, cannabis, and tobacco advertisements to protect minors. The legislature used the same logic to justify restricting firearm marketing. The restrictions prohibit advertising of a firearm-related product in a way that is attractive to minors. Courts will consider the totality of the circumstances, including whether the ads use cartoons, offer brand-name merchandise for minors, sell products in sizes, colors, or designs for minors, use images of minors, or are placed in a publication created for an audience composed of minors. This bill has already been applied to prohibit advertisement of youth shooting sports and caused the California State high School Clay Target League to fold. In addition to the Second Amendment, this bill may also violate the First Amendment.
AB 1621 broadens restrictions of unserialized firearms, also known as “ghost guns.” (Pen. Code*). The restrictions redefine a firearm precursor part as “any forging, casting, printing, extrusion, machined body or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm.” This bill also creates a process for firearm users to apply for a determination of whether an item is a firearm precursor part. Owners of unserialized firearms must apply for a mark of identification before 2024. In addition, the bill includes the following changes to existing law: a person can only buy one completed frame, receiver, handgun, semiautomatic, or precursor part in a 30-day period, and a person convicted of manufacturing an unserialized firearm may not possess a firearm for 10 years.
SB 1327 creates a private right of action to sue various possessors in the firearm trade. (Bus. And Prof. Code §§ 22949.60-22949.71). Any person in the state can sue anyone who (1) manufactures, distributes, sells, or transports an unserialized firearm, an assault weapon, or a .50 BMG rifle; (2) purchases, sells, or transfers a precursor part that is not federally regulated; or (3) is a licensed dealer who sells or gives a firearm to anyone under 21. The requirements of SB 1327 can only be enforced through private civil actions.
Seeking to insulate these Constitutionally dubious laws for judicial review, SB 1327 provides that any person who unsuccessfully challenges the Constitutionality of any firearm regulation is jointly and severally liable to pay attorney’s fees and costs. (Code Civ. Proc. § 1021.11) By affording attorney’s fees and costs only against parties who sue to prevent enforcement of firearm regulations (and not for litigants who successfully prevent enforcement of unconstitutional firearm regulations), this section itself is subject to Constitutional challenge. Ordinarily, a prevailing defendant can only recover attorney’s fees where the suit is vexatious, frivolous or brought to harass the defendant.
As expected, gun-rights groups are already seeking legal recourse to limit the effect of these laws in light of Bruen. For example, Junior Sports Magazines and other youth-centric associations and businesses already filed a complaint against Attorney General Bonta regarding the new prohibition on advertising to minors. The complaint alleges several constitutional violations, including infringement on free speech, the right to association, and equal protection. As the law stands today, youth hunting clubs, school skeet shooting teams, and other sporting groups in rural areas are unable to fully promote their organizations. Further, the California Rifle and Pistol Association recently commenced a federal action challenging the Unsafe Handgun Act which severely limits the number and type of handguns available for sale in California.
Considering the legal issues now surfacing and the current wave of lawsuits in response, you can expect to see more push-back in the coming months.
* Amendments, repeals, and additions to the Penal Code §§ 16515, 16517, 16519, 16520, 16531, 16532, 17312, 18010, 23910, 23920, 23925, 26835, 27510, 27530, 27535, 27540, 29180, 29181, 29182, 29185, 29805, 30400, 30401, 30405, 30406, 30412, 30414, 30420, 30442, 30470, 30485