On Thursday, June 28, the California Supreme Court shot down an attempt to overturn a state law mandating something that gun makers literally cannot do.
And in Delphic wisdom, the justices taught us some important lessons about judicial review, why politicians pass such laws, and what special interests the laws favor.
As the Associated Press reports:
The California Supreme Court threw out a lawsuit Thursday that sought to block an unusual law requiring new models of semi-automatic handguns to stamp identifying information on bullet casings when shots are fired to make it easier to solve crimes.
There’s just one problem with that.
The gun manufacturers don’t have the technological or economic capability to make semi-autos that can do what the lovely politicians compel.
Correct that. There are numerous problems.
See, the politicians who proposed and passed the bill knew full well that it was impossible to comply, which was precisely why they passed it. Frustrated with the constitutional prohibitions against firearm ownership bans, the gun-grabbers seek to make it impossible to sell semi-automatic firearms in California. If the politicians were not satisfied with the kinds of guns that makers were offering, they could have gone into business to offer their preferred type. Instead, rather than go into business and offer firearms that do what they want them to do, the politicians took the aggressive political route of threatening those who are risking their capital, time, effort, and alternatives for profitable work. The threat comes in the form of statute – what is known as “impossible law.”
The ruling, in the case of National Shooting Sports Foundation v. State of California, saw the plaintiffs, a group of concerned gun owners, correctly noting that California civil code stipulates that no state law can require an impossibility: “The law never requires impossibilities.”
So, for example, the politicians in California can’t mandate that everyone teleport to work and then fine people if they don’t. They can’t mandate that CNN actually show a scintilla of journalistic integrity, because, of course, we know that’s impossible… that sort of thing.
So one would think, given the fact that there is no technology to make working semi-autos imprint every fired round with an identifiable mark, the California Supreme Court would strike down and nullify the law.
Nope. As Scott Shackford observes for Reason, the court took the cozy middle-o’-the-road:
The court does not suggest that people can face punishment for being unable to comply with impossible laws. Instead, the court says, ‘impossibility can occasionally excuse noncompliance with a statute, but in such circumstances, the excusal constitutes an interpretation of the statute in accordance with the Legislature's intent, not an invalidation of the law.’ Essentially, it's not unconstitutional to pass impossible laws, but the courts can exempt people from the consequences of those laws without overturning the laws themselves.
And it is worth noting a couple procedural, “separation of powers” points here. First, as Shackford notes, while the CA Supremo ruling does not suggest people can face punishment for being unable to comply with an impossible law, the ruling does makes it very clear that the law still stands, and that, depending on circumstance, people could be punished.
This actually comports with the contentious practice of “judicial review.” As it was originally conceptualized, each member of a U.S. political unit had a duty to uphold the U.S. Constitution, and, as a result, a President could decline to enforce a law he or she saw as unconstitutional; a governor, a police officer, a military member, etc., could refuse to enforce a law he viewed as contrary to the Constitution. Likewise, judges could let people off the hook if they found that a law broke the Constitution.
But this was only for each specific case, and the statute still stood as a potential threat to others who might be brought up on charges. It merely depended on the makeup of future courts to determine whether future suspects would be prosecuted. If the highest court was still composed of the same members, it was unlikely that lower courts or even police would enforce the law. But the law could still be on the books, waiting to snap if the judicial makeup changed.
Which brings us to the subtle reason these “impossible laws” are passed. The plaintiffs in this “impossible gun mandate” suit argued that the mandate was contrary to California’s already existing stipulation that its laws “cannot require impossibilities.”
The California Court of Appeals agreed, but the state appealed the lower court ruling, and the California Supreme court unanimously found that the law can, in fact, require impossibilities. Prosecution for non-compliance just depends on whether the state is feeling charitable or the court makeup changes.
What this boils down to is the off-kilter reality that the state has every power to pass laws with which citizens cannot comply, that they can always threaten people with arrest and prosecution, despite the fact that California law already stipulates precisely the opposite.
And, as Shackford notes, there are plenty of big corporations – that donate lots of money to politicians – that like this. It’s a way to block small, start-up competition in many areas.
California is far from alone in the attitude that technological development should be directed to serve political constituencies. The result is that various interests lobby the government to control how these goals are set so that they are likely able to meet them and cash in—and perhaps their competitors are not.
So, once again, citizens are sold the fiction that their big-government politicians are “for the little guy”, when the opposite if true.
Government is never for the “little guy.” Government is for government, and will always find ways to increase its power. The California Supreme Court ruling typifies this. They will do what they desire, even to the point of telling you that you have to comply to “impossible laws”.