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California Democrats returned to Sacramento this week with a gun-safety agenda following a near-record year for U.S. mass shootings. But their legal obstacles loom higher than ever.
The Supreme Court this summer invalidated one of the state’s longstanding concealed carry requirements, and a federal judge in San Diego has blocked a series of the state’s restrictive gun policies. Meanwhile, Second Amendment groups will sue “anything that walks,” said Democratic Assemblymember Jesse Gabriel, who chairs the Legislature’s Gun Violence Prevention Working Group.
As the challenges mount, it’s up to lawmakers to find a way around them, said Bob Hertzberg, a former California legislator whose bill could be heading to the Supreme Court.
“We have these horrible deaths every year,” Hertzberg said. “How do we as lawmakers try to figure out creative ways that reduce this horrible tragedy?”
A group of Democratic legislators insist they are unfazed by the legal threats as they pursue laws they know other blue states are likely to emulate. They’ve already introduced at least five bills, with more on the way. Here’s what you need to know about California gun safety advocates’ hopes for 2023 — and the obstacles they may face.
This year, advocates hope to tax the gun industry and defy the Supreme Court
Sacramento veterans and newcomers were quick to begin pushing gun laws in the new legislative session, with bills that target gun violence and the firearms industry. Catherine Blakespear, a first-year state senator, submitted one on the day she was sworn in.
Blakespear’s Senate Bill 8 is an open-ended intent bill that will seek to prevent gun violence; the senator plans to fill it in with details in the coming weeks.
Other lawmakers are advocating for do-overs of past legislation. State Sen. Anthony Portantino is back with Senate Bill 2, which is meant to protect the state’s concealed-carry law following the Supreme Court’s Bruen decision in New York. His last effort to do so failed narrowly in the Assembly after some lawmakers questioned whether the bill would hold up in court. And Gabriel is again championing a tax on the sale of firearms and ammunition to fund gun violence prevention initiatives.
Gabriel also has a new bill that would allow Californians to add themselves to a firearms Do Not Sell list, and another that would prohibit those under domestic violence protection orders from owning firearms for three years after their order ends.
Even if the proposals make it out of the Legislature, their long-term fate will hinge on surviving a thorny legal landscape.
“If and when we pass this tax on the sale of guns and ammunition, I have no doubt that it will be challenged in court,” Gabriel said. “But the fact that someone’s going to file a lawsuit … that’s not a reason not to move forward.”
Phil Ting, a Democratic assemblymember from San Francisco, said he expects to see a legislative push this year to make more research on firearms and gun violence publicly available.
“The gun lobby’s pushed very hard to have no information,” Ting said. “They’d like this to be perceived as individual accidents and incidents, when we know that the more guns there are on the street, the more deaths there are.”
States must face reality of a 6-3 conservative Supreme Court majority
Lawmakers in California and elsewhere say they are eager to impose restrictions on guns after nearly 650 mass shootings across the country last year, the second-highest number on record. But the reality is that the legal landscape has never been more hostile to firearm regulations at the state level.
“California is, more than ever before, having a problem defending its gun control laws,” said Adam Winkler, a constitutional law expert at UCLA. “A lot of widely accepted, long-standing rules are now being called into question nationwide.”
In June, the Supreme Court didn’t just strike down a New York law that restricted concealed-carry permits in the state. The majority opinion in the Bruen case, backed by the 6-3 conservative majority on the high court, opened the door to challenges on a wide range of Second Amendment policies that restrict firearms. Gun rights advocates have already taken up the invitation, bringing challenges across the nation that are likely to prevail under the newly established framework set by the Supreme Court.
Just about any new legislation in California faces a likely challenge from advocates such as the Second Amendment Foundation.
“California and other states need to repeal anti-gun rights laws, not pass new ones, or we beat them in court,” said Alan Gottlieb, the organization’s executive vice president.
First up may be Senate Bill 1327, a bill modeled after a Texas law that allows private lawsuits against those who receive or help provide abortions. Newsom signed SB 1327 into law last year, with the express intent of inviting a legal challenge. As expected, California’s new law has already been overturned in federal court, and Hertzberg said he expects it to make its way to the Supreme Court.
Newsom versus Benitez — again.
California’s efforts to tighten gun restrictions have hit a wall with federal Judge Roger Benitez, an appointee of former President George W. Bush who overturned the state’s assault weapons ban in 2021. Benitez has earned a reputation for making controversial statements about gun policy, including the false claim that vaccines have killed more Americans than mass shootings.
For gun safety advocates, Benitez is a scary figure: Second Amendment groups have strategically filed lawsuits in his district, they say, because they know he will likely hand them a favorable ruling. He lurks in the minds of lawmakers, too: Gabriel said Benitez is “a great example of an extremely activist judge with views that are far outside of the mainstream.”
Several of Benitez’s rulings overturning state gun laws were under appeal before Bruen. Now, they’ve been sent back to him. “Years of litigation … and we’re right back down to square one with the same judge whose opinions were already overturned by the Ninth Circuit,” said Ari Freilich, Gifford Law Center’s State Policy Director.
When Benitez struck down SB 1327, it was déjà vu for both himself and Newsom, who have publicly antagonized each other. The governorblasted the judge after he initially overturned the assault weapons ban, calling him a “wholly-owned subsidiary of the gun lobby and the National Rifle Association.”
“We need to call this federal judge out,” Newsom said at a June 2021 news conference. “He will continue to do damage. Mark my words.”
Rethinking a century of gun policy
While lawmakers wait for the Supreme Court to clarify its interpretation of the Second Amendment, Benitez is already forcing state lawyers to defend California’s slate of restrictions. Last month, he asked lawyers to draft a 97-year history of gun restrictions in the state — beginning with the ratification of the Second Amendment and ending 20 years after the ratification of the 14th.
The request emerged from the Supreme Court’s ruling in Bruen, which stated that judges must employ an interpretation “rooted in the Second Amendment’s text, as informed by history.”
The judge will use this history to aid his analysis — and to help determine the fate of gun safety laws in California, new and old.
Bruen has forced attorneys across the country to spend valuable time doing historical research on Second Amendment law, Winkler said. He called the surge in litigation a “huge burden” for state DOJs across the country.
The California DOJ declined to answer questions regarding the agency’s workload. But in a statement to POLITICO, a department spokesperson confirmed that the Supreme Court’s decision triggered a range of lawsuits.
For state justice departments across the country, Winkler said, more lawsuits mean more work.
“They have limited resources, and they have to expend those resources defending this gun law, rather than pursuing other cases,” Winkler said. “There’s only so many people you have working in the office.”
