How does Letitia James demagogue on gun control in this 92-second clip? Let us count the ways. Following Gavin Newsom’s lead in California, the Attorney General of New York tells The View that she has her office working on crafting a law that will allow private citizens to sue gun manufacturers and sellers, just as Texas passed targeting abortion providers. “This is a first,” James declared.”
Shall we review all the ways in which it will be a last?
New York Attorney General @TishJames tells #TheView she plans to follow California Gov. Gavin Newsom's lead to create a law that empowers private citizens to enforce an assault weapons ban: "What we need to do is hold these gun manufacturers and these gun distributors liable." pic.twitter.com/1rurfhTT17
— The View (@TheView) December 14, 2021
Let’s start with some basic civics. Who writes the laws in our form of government? Why, that task belongs to legislature, not the executive branch! And to which branch of government does the AG belong? I’ll give you a hint — it rhymes with shmegistature. As AG, James can no more “create a law” than any other citizen in New York. The Texas law on which this proposal is modeled was passed in the state legislature.
Technically, that constrains Newsom in California as well. Governors can informally propose legislation, and in the Golden State and its veto-proof Democratic supermajorities, such a proposal would theoretically pass, although the radical step that it takes might lose enough non-LA/San Francisco legislators to get tanked. If Kathy Hochul tried it in New York, Democrats might be able to squeak it through, but one suspects that the upcoming red-wave midterms would likely make them much less willing to try it … especially just one year after Andrew Cuomo’s scandalous run came to its ignominious end.
But even then, it’s a waste of time in two separate ways. Gun manufacturers’ immunity from lawsuits is partly based on federal legislation (the 2005 Protection of Lawful Commerce in Arms Act), which would tend to crowd out any state efforts. However, it’s also based firmly on common law regarding liability. Manufacturers can be held liable for fraud and for product defects (as well as knowingly supplying weapons for use in crimes), but outcomes from the use of firearms that operate properly are not the liability of the manufacturer or seller, just as it isn’t for cars, to use one example. Courts have centuries of American and English common law on liability that would restrict such efforts as James and Newsom propose, at either the state or federal level. Congress passed the PLCAA to end nuisance suits intending to put manufacturers out of business by “lawfare,” not because the manufacturers needed it to avoid actual liability.
Second: the right to keep and bear arms is an enumerated right, explicitly protected by the US Constitution, and now fully incorporated after Heller and McDonald as an individual right. As courts held even before Heller, that right includes the ability to manufacture and sell firearms and ammunition. Lawsuits intended to shut down the exercise of that right will fail every time, with the exceptions of defect and fraud in specific instances.
In contrast, abortion isn’t an enumerated right. Still, though, the problem for Newsom and James is that the Supreme Court isn’t likely to leave the Texas law in place either, thanks to the precedent it sets for precisely these kinds of shenanigans. We also have centuries of common law precedent on standing that allows courts to restrict lawsuits to those who can demonstrate actual and specific harm, and that precedent benefits the courts themselves most of all. It disincentivizes the use of courts as activist theater, which the Texas law all but enshrines. I warned about this issue and the precedents it would set a few months ago, and noted that the Supreme Court seemed to signal that it sees this as a big problem that they will solve when the right challenge comes along to address it.
By the way, all of this will almost certainly get mooted by Dobbs. If the Supreme Court strikes down the Mississippi law, they have to do so by affirming a constitutional right to an abortion at some stage, which means the Texas law becomes an undue burden thanks to its liability provisions forcing all providers to stop doing abortions. If they uphold the law in Dobbs, they have to overturn Roe (or at least Casey), which means Texas can then pass abortion-restriction laws that the state can enforce themselves. The SB8 law is eventually dead one way or the other, so James is wasting everyone’s time with this demagoguery.