Legal Vigilantism Is the Wrong Answer to Gun Violence
(Bloomberg Opinion) -- In recent weeks, Democratic officials in New York and California have proposed legislation granting individual citizens the right to sue manufacturers of assault weapons and ghost guns. More aggressive action to curb gun violence is undoubtedly warranted. Openly subverting the will of federal courts is the wrong way to go about it.
First proposed by California Governor Gavin Newsom, the effort consciously imitates a restrictive anti-abortion law passed by Texas’ legislature earlier this year. That measure allows private citizens to sue abortion providers and anyone potentially aiding a pregnant woman seeking an abortion after six weeks. In drafting the law, Texas intentionally made it difficult for abortion providers to seek redress from state officials — who would normally be the target of a federal lawsuit alleging the violation of a constitutional right. In December, the Supreme Court allowed Texas to keep the law in place while challenges against it continue in lower courts.
Newsom is seeking to apply the same logic to guns. Under his proposal, California citizens could sue “anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in California.” Though this might seem reasonable to gun-control advocates, the law currently protects people’s rights to sell and own such weapons. After the federal assault-weapons ban expired in 2004, Congress passed a law indemnifying gun manufacturers and dealers from liability for any death or injury resulting from such firearms. Last summer, California’s statewide assault-weapons ban was ruled unconstitutional (though the state has appealed).
Both Newsom’s proposal and the Texas anti-abortion statute seek to get around federal law via civil action. This is a mistake. Such efforts only encourage other states to launch their own efforts to undermine judges’ rulings on abortion, guns and other divisive cultural issues. Such a race to the bottom could wreck the country’s constitutional order and erode the rule of law. In his dissent arguing for Texas’ abortion law to be struck down, a clearly irritated Chief Justice John Roberts quoted directly from a two-century-old Supreme Court decision, writing, “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.”
That isn’t to say that gun-control forces are powerless. Policy makers in California and New York have shown that it’s possible to draft smart gun-safety legislation without resorting to legal gimmickry. Since 2015, California has passed laws strengthening rules on secure gun storage and ghost-gun manufacturing and developed statewide violence-intervention programs. Those reforms contributed to a 6% drop in gun crimes in the decade before the pandemic, compared to a 17% increase nationwide. New York Attorney General Letitia James, meanwhile, has helped drive a campaign to take on the National Rifle Association, seeking its dissolution over nonprofit malfeasance and fraud.
As the success of these efforts shows, defeating the scourge of gun violence in America requires not just boldness but pragmatism. Promoting legal vigilantism to get around constitutional protections and federal laws is not the way forward.
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