California’s attempt to stop people from building their own firearms can move forward.
That’s the decision federal district judge George H. Wu, a George W. Bush appointee, delivered late last week. Wu determined the Second Amendment’s text does not cover the building of firearms, ruling against gun-mill maker Defense Distributed (DD) in its challenge of AB 1621. The judge argued California’s law banning the possession of unserialized firearms, as well as parts or specific tools used to make them, does not run afoul of gun-rights protections under the Supreme Court’s Bruen decision.
“Though it leads with a recognition of the primacy of Bruen’s ‘plain text’ point, DD seeks in its opening brief to jump ahead in the analysis to a historical/tradition assessment (and to jump ahead in Bruen to that decision’s discussion of how to conduct such an assessment),” Judge Wu wrote in his ruling rejecting a request for a preliminary injunction against the law. “But it has effectively attempted to avoid the necessary threshold consideration – does the ‘Second Amendment’s plain text’ cover the issue here? No, it plainly does not. AB 1621 has nothing to do with ‘keep[ing]’ or ‘bear[ing]’ arms.”
The decision presents a novel interpretation of the standard for reviewing gun laws set in New York State Rifle and Pistol Association v. Bruen, which requires judges to strike down laws that implicate Second Amendment rights unless they match a historical analogue from the founding era. Wu is among the first federal judges to grapple with the new test and possibly the first to determine the text of the amendment only covers owning and carrying guns, not making or selling them. If his approach to reading the scope of what activities are protected by the Second Amendment as relatively limited becomes influential among other judges, it could result in them upholding many modern restrictions.
Judge Wu argued Defense Distributed skipped passed the textual analysis of what the Second Amendment protects and, ultimately, undermined its case.
“Under DD’s own characterization of the Penal Code provisions introduced via AB 1621, what is at issue here is a ban on ‘self-manufacture of firearms’ and a prohibition on ‘the sale of the tools and parts necessary to complete the self-manufacturing process,’” he wrote. “Try as you might, you will not find a discussion of those concerns (or any such ‘right(s)’) in the ‘plain text’ of the Second Amendment.”
However, Defense Distributed disputed Judge Wu’s contention. Cody Wilson, the company’s founder, described the judge’s conduct in the case as “unprofessional” and “cynical.” He noted California’s law does directly implicate owning guns, not just building them.
“What’s crazy is AB 1621 in California is about keeping and bearing arms,” Wilson told The Reload. “Literally, it defines a number of things as firearms under California Penal Code, and it restricts if you can possess and transfer them.”
He said there might be more to argue about when it comes to how far Second Amendment protections extend to gun making. But he accused Judge Wu of side-stepping the core issues at play in the company’s case against California, which he said were identical to those in Bruen.
“We’ve challenged a number of sections 1621 that defined things as firearms,” Wilson said. “I didn’t choose to do it that way; the California legislature decided to say everything which can become a gun in California is a firearm that you can’t have unless it has a serial number. Well, I don’t know what else to say. There’s clearly a second amendment application to be made here and a historical inquiry to make. Maybe the secondary questions about CNC machines and the right to manufacture are more interesting at the outer bounds of Bruen or something. But a lot of what we challenge is obviously firearm regulation of the same type in Bruen.”
Judge Wu is among the only federal court judges to uphold a 21st Century gun regulation in the wake of Bruen. His ruling is in stark contrast with U.S. District Court Judge Maryellen Noreika, who blocked Delaware’s “ghost gun” ban earlier this year. Judge Wu appeared to acknowledge that his approach to Bruen differs from how other federal judges have approached the issue. However, he accused his piers of cherry-picking from Bruen to reach preferred outcomes.
“DD – and apparently certain other courts – would like to treat the Supreme Court’s Bruen opinion as a ‘word salad,’ choosing an ingredient from one side of the ‘plate’ and an entirely-separate ingredient from the other, until there is nothing left whatsoever other than an entirely-bulletproof and unrestrained Second Amendment,” Wu wrote. “That is not how precedent works; it is not even how language works (let alone salad, in most instances).”
Defense Distributed’s attempt to block SB 1327, a law that allows California to seek legal fees from plaintiffs in gun cases even when those plaintiffs prevail on some of their claims, was denied by Judge Wu. He did not examine the merits of the law, though, instead relying on California’s word they would not pursue legal fees in the DD case.
“Defendants have made clear that they ‘have informed [DD] that they will not seek attorneys’ fees or costs from [DD] or its attorneys pursuant to [Section 2 of SB 1327] in connection with this action,’” Judge Wu said. “Given Defendants’ statements in documents filed with the Court, it is almost certain that any later court considering a contrary plan would hold Defendants to their word under principles of judicial estoppel.”
Wilson believes the way California wrote the bill opens it up to broad legal scrutiny. He said he’s just concerned about finding a judge in the Ninth Circuit who will, in his view, abide by the standard set down by the Supreme Court.
“California has multiplied the number of things that are firearms that they regulate the possession and transfer of,” he said. “So, they’ve actually expanded the scope of the Second Amendment themselves. Historical analysis can now be applied to components of firearms because of California. I just can’t find, you know, an actual judge to actually apply the law right.”
Wilson said Defense Distributed is exploring an appeal against the decision.
