dissenting.
“Whatever personal emotions and personal views members of this court may have in this tragic case, those feelings must be put aside in resolving the narrow legal question decided here.” Merrill v. Navegar, Inc., 26 Cal.4th 465, 492, 110 Cal.Rptr.2d 370, 28 P.3d 116 (2001) (Kennard, J., concurring).
I understand the majority’s desire to ensure that the appellants have their day in court. But I do not concur in the majority’s opinion because I believe that it runs afoul of some of our most basic duties as federal judges. When exercising our diversity jurisdiction, we are required to apply state law whether we agree with it or not. See Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
The majority’s almost exclusive rebanee on authority from outside of California speaks volumes about how a California court would rule on this case. To reach its result, the majority must look outside Cab-fomia because when a proper analysis of California’s statutes and cases is conducted, it becomes clear that the district court correctly dismissed appellants’ claims. The majority essentially overlooks California law, relying instead on cases from other jurisdictions, nonbinding legal treatises, and abstract common law principles to arrive at its conclusions. But “[tjhere is no general federal common law.” Erie, 304 U.S. at 78, 58 S.Ct. 817. Sitting in diversity, we are not free to pick and choose from the many different common law principles that have been developed in the fifty states. Our role is “to ascertain what the state law is, not what it ought to be.” Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 497, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (emphasis added).
When this case is analyzed under the applicable statute and most closely analogous California cases, this court has bttle choice but to affirm the district court’s well-reasoned decision.
I respectfuby dissent.
As I explain below, the majority commits three errors in its analysis. First, it fails to recognize that this action is a products bability action and therefore is barred by a California statute. Cal. Civ.Code § 1714.4.1 Second, the negbgence theory espoused by the majority was specifically rejected by the California Supreme Court in Merrill v. Navegar, 26 Cal.4th 465, 110 Cal.Rptr.2d 370, 28 P.3d 116 (2001). Third, the nuisance theory adopted by the majority contradicts relevant California authority.
THIS PRODUCTS LIABILITY ACTION IS BARRED BY SECTION 1714.4
The question of how to characterize this civil action is not merely academic-it is dispositive. In both their negbgence and nuisance claims, appellants allege that their injuries were caused by the potential of appellees’ products to cause serious injury or death. But in products liability actions, California Civil Code section 1714.4 declares that “[ijnjuries or damages resulting from the discharge of a firearm or ammunition are not proximately caused *1219by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product.” Cal. Civ.Code § 1714.4(b)(2). Thus, the plain terms of this statute preclude appellant’s theory of causation. The majority gets around this absolute bar to appellants’ claims by arguing that appellants have not actually brought a products liability lawsuit. But the claims alleged by appellants can be characterized as nothing but products liability claims.
A brief history of products liability law illustrates why this is a products liability action. Today, we take for granted that a manufacturer may be held liable for foreseeable damages caused by its products. But less than a century ago, this was a foreign concept in our nation’s jurisprudence. At common law, a manufacturer was immune from liability in cases where the plaintiff alleged an injury that was caused by the manufacturer’s products, absent privity between the manufacturer and the plaintiff. With Justice (then-judge) Cardozo’s landmark decision in MacPherson v. Buiek Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), the doctrine of privity as a bar to recovery in these suits began to wane. In MacPherson, the New York Court of Appeals allowed a driver to sue Buick in negligence after a defective tire caused him to be thrown from his car and injured, even though there was no privity between the driver and Buick-Buick had sold the car to a dealer first. Id. at 385-86, 111 N.E. 1050. Soon, not only consumers, but any person who could foreseeably be damaged by a product could sue in negligence for manufacturing or design defects. By 1963, even negligence was no longer a requirement, as the California Supreme Court, through Justice Traynor, established that manufacturers were strictly liable for injuries their defective products caused foreseeable victims. See Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). So in the span of half a century, tort law developed from effectively barring victims from suing a manufacturer for damages caused by products the manufacturer had placed in the stream of commerce, to allowing any foreseeable person who could be injured by a product to sue. This history provided the backdrop for the development of the branch of law known as products liability. No other branch of law deals with a manufacturer’s liability to consumers or bystanders with whom it otherwise has no relationship for damages caused by its products.
To justify my conclusion that this is undoubtedly a products liability suit, I turn to the very case that appellants have cited most often to support their theories, Stevens v. Parke, Davis, & Co., 9 Cal.3d 51, 107 Cal.Rptr. 45, 507 P.2d 653 (1973). In Stevens, the plaintiffs alleged that the defendant drug manufacturer was negligent because it over-promoted the drug Chloro-mycetin with the intent that doctors would not prescribe it correctly. Id. at 65, 107 CalRptr. 45, 507 P.2d 653. This theory closely parallels what plaintiffs suggest here: the gun manufacturers over-sold their products knowing that the guns would end up in the hands of people who would misuse them. In Stevens, the California Supreme Court treated the action as a products liability action. See id. at 64, 107 CalRptr. 45, 507 P.2d 653(“One who supplies a product directly or through a third person ‘for another to use is subject to liability to those whom the supplier should expect to use the [product]’ ”) (quoting Restatement (Second) of Torts § 388, which describes failure to warn claims in products liability law). Given the similarities between this case and Stevens, California courts would be required to treat this case as a products liability action. As such, it is governed by section 1714.4.
*1220The majority insists that this a “classic negligence and nuisance case.” At the same time, however, the majority does not cite a single case from California which relies upon a nonproducts liability theory to hold a manufacturer liable for injuries caused by the use of its products. The majority tells us this case is not about defective products; it is about “certain affirmative conduct ... that fosters an illegal secondary gun market.” But when it accepts appellees’ negligent marketing argument, the majority allows itself to be persuaded by an argument that is irrelevant in tort except insofar as it tends to prove one element in a products liability cause of action. Whether the gun manufacturers sell their products with the knowledge that they will find their way to criminals may bear upon who is a foreseeable plaintiff in the event that a defective gun causes injury. But to assert that this action is not about products borders on the absurd. This case is about guns. If ap-pellees were selling bubble gum, the case would be markedly different. Alleging a defect or failure to warn is generally necessary to prevail in a products liability suit, but it is not the sine qua non for bringing a suit that sounds in products liability. The nature of appellees’ conduct cannot be analyzed apart from the product they are selling.
Under section 1714.4, appellants’ claims are doomed. Both claims allege that the injuries were caused by appellees’ products’ potential to cause serious injury, damage, or death. However, “[ijnjuries or damages resulting from the discharge of a firearm or ammunition are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product.” Cal. Civ.Code § 1714.4(b).2 California law unequivocally states that these injuries and damages were proximately caused by the shooter, Buford Furrow.
I would affirm the dismissal of all claims on this statutory basis alone.
THE MAJORITY’S NEGLIGENCE THEORY WAS REJECTED BY THE CALIFORNIA SUPREME COURT IN MERRILL
The majority and appellants argue that appellees were negligent in that they breached a duty not to market their firearms products to criminals and others likely to misuse them. But California’s highest court has specifically rejected this theory.
In Merrill v. Navegar, the California Supreme Court held that no cause of action could lie for a claim of “negligent marketing” of firearms. 26 Cal.4th at 483, 110 Cal.Rptr.2d 370, 28 P.3d 116. Like the incident underlying this case, the incident involved in Merrill was a violent tragedy of the kind which has become all too *1221common in our nation’s life. A crazed man bought an assault weapon and went on a shooting spree. Families of the victims sought to hold the manufacturers of the guns responsible under a negligence theory. In affirming the trial court’s dismissal of the suit, the California Supreme Court held that section 1714.4 barred such a cause of action.
Like the majority here, the plaintiffs in Merrill argued that “section 1714.4 has no application to this case because it is not a produces] Lability action.” Id. at 478, 110 Cal.Rptr.2d 870, 28 P.3d 116. Like the majority, the Merrill plaintiffs argued that they sought to hold the gun manufacturer “liable for its negligent conduct, not for making a defective product.” Id. But the California Supreme Court flatly rejected this argument, observing that negligent conduct could not be analyzed separately from product design:
[Vjirtually every person suing for injuries from firearm use could offer evidence the manufacturer knew or should have known the risk of making its firearm available to the public outweighed the benefits of that conduct, and could therefore raise a triable issue of fact for the jury. In each of these cases, the jury would be asked to do precisely what section 1714.4 prohibits: weigh the risks and benefits of a particular firearm. The result would be to resurrect the very type of lawsuit the Legislature passed section 1714.4 to foreclose ...
Id. at 486, 110 Cal.Rptr.2d 370, 28 P.3d 116.
The majority attempts to distinguish this case from Merrill with the allegation that appellees’ marketing scheme “specifically target[ed] criminal users” as opposed to the general public. But it is a legally insignificant distinction that appellees allegedly marketed their guns to criminals intentionally, rather than just with the knowledge that criminals would obtain the guns. See Restatement (Second) of Torts § 8A, cmt. b (1965) (“Intent is not ... limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.”); see also Vision Air Flight Serv. v. M/V Nat’l Pride, 155 F.3d 1165, 1176 (9th Cir.1998) (knowledge that cargo would be destroyed is legally the same as intentionally destroying cargo); Schroeder v. Auto Driveaway Co., 11 Cal.3d 908, 922,114 Cal.Rptr. 622, 523 P.2d 662 (1974) (adopting Restatement rule).
Furthermore, like the “conduct” at issue in Merrill, this allegedly negligent conduct cannot be analyzed without weighing a particular firearm’s risks in relation to its benefits. What kind of firearm was allegedly marketed to criminals is bound up with whether appellees’ marketing choices were prudent. Marketing a hunting rifle knowing it will end up in the hands of criminals is different from marketing an assault weapon knowing it will end up in the hands of criminals. The majority’s holding will require “a jury ... to do precisely what section 1714.4 prohibits: weigh the risks and benefits of a particular firearm.” Merrill, 26 Cal.4th at 486, 110 Cal.Rptr .2d 370, 28 P.3d 116.
In fact, the majority’s opinion invites juries to engage in this type of cost/benefit analysis. The majority states that the “social value of manufacturing and distributing guns without taking basic steps to prevent these guns from reaching illegal purchasers and possessors cannot outweigh the public interest in keeping guns out of the hands of illegal purchasers and possessors who in turn use them in crimes like the one that prompted plaintiffs’ action here.” Maj. Op. at 1205-1206. The majority then assures us that “[t]he debate *1222over the social value of guns generally need not enter this case; rather, we must limit our evaluation to the social value of defendants’ interest in distributing the guns” as the complaint alleges. Id. But section 1714.4 prohibits more than a generalized assessment of the social values of guns. It prohibits a cosi/benefit analysis of specific firearms and ammunition as well. See Merrill, 26 Cal.4th at 480-86, 110 Cal.Rptr.2d 370. And to measure “the social value of defendants’ interest” in distributing specific firearms in the manner alleged, it is necessary to evaluate the social value of these firearms.
The majority’s negligence theory is essentially the same theory Justice Werde-gar described in her dissent in Merrill:
Plaintiffs’ claim of negligence is, at bottom, that defendant Navegar ... acted without due care in distributing the TEC 9/DC9-a semiautomatic handgun combining portability and ease of use with an extraordinary rapidity and capacity for lethal firepower ... Plaintiffs do not claim that the TEC 9/ DC9 is defective; nor do they even claim that defendant acted negligently simply by making the TEC 9/ DC9. Plaintiffs allege negligence, rather, in Navegar’s selling that firearm on the general civilian market knowing it would attract purchasers likely to misuse it, rather than restricting sales to buyers with a lawful use for the tools of assaultive violence, such as police and military units. This theory of negligence [rests] on the allegation that particular marketing choices by Navegar were imprudent
Id. at 493, 110 Cal.Rptr.2d 370 (Werdegar, J., dissenting) (emphasis in the original). In defending this theory, however, Justice Werdegar stood alone.
Merrill also forecloses a theory that ap-pellees are liable for “negligent advertising” or other efforts to reach out to people like Furrow. In Merrill, the California Supreme Court held that for a gun manufacturer to be liable for such conduct, a plaintiff would have to prove at least that the shooter asked for the guns used “by name.” Id. at 491, 110 Cal.Rptr.2d 370. Appellants have not alleged that Furrow asked for a Glock, or any other weapons he used, by name.3
Other California authority, too, supports dismissing this case. In Jacoves v. United Merchandising Corp., the California Court of Appeal affirmed the trial court’s judgment on the pleadings in favor of a firearms dealer in a negligence action attempting to hold the dealer liable for the suicide death of 20-year-old Jonathan Ja-coves. 9 Cal.App.4th 88, 11 Cal.Rptr.2d 468 (1992). Plaintiffs alleged that Jacoves walked into a Big-5 store and tried to buy a handgun and ammunition. When he learned that he could not purchase the gun until the statutory waiting period had passed, he left the store. Id. at 118, 11 Cal.Rptr.2d 468. Later, he returned to the store to buy a rifle for which there was *1223no waiting period. “At the time of this purchase, [Jacoves] appeared youthful, confused, distraught, and trembling. He purchased a rifle and ammunition and was instructed in the use of the rifle. On that same day, he committed suicide with the Big-5 rifle.” Id. The Court of Appeal held, as a matter of law, that such allegations were insufficient to establish that Big-5 owed Jacoves a duty of care. Id. The court found that Big-5 had no reason to anticipate that Jacoves “intended to commit suicide.” Id.
The court in Jacoves held the plaintiffs to a much higher burden than this majority, which merely states that the “type of harm” alleged was foreseeable and that appellees therefore owed appellants a duty of care. Jacoves rejected this approach. Certainly the type of harm suffered in Jacoves-a gunshot wound-was foreseeable. Even so, the court focused on specific conduct by specific individuals, inquiring whether Big 5 employees knew of facts that would make Jacoves’ suicide reasonably foreseeable. Here, there was no allegation that appellees knew that Buford Furrow would go on a shooting spree. Yet Jacoves requires just such an allegation to establish a duty of care.
For all these reasons, I would affirm the district court’s dismissal of the negligence claim.
THE NUISANCE THEORY IS INCONSISTENT WITH CALIFORNIA LAW
The nuisance issue is simple. The majority ought to have disposed of it easily. I quote unequivocal language from the California Court of Appeal:
Nuisance has been described as an “impenetrable jungle.” ... Civil Code section 3479 defines a nuisance as “[a]nything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property....”
City cites no California decision, however, that allows recovery for a defective product under a nuisance cause of action. Indeed, under City’s theory, nuisance “would become a monster that would devour in one gulp the entire law of tort....”
[NJuisance cases “universally” concern the use or condition of property, not products.
City of San Diego v. U.S. Gypsum Co., 30 Cal.App.4th 575, 585-86, 35 Cal.Rptr.2d 876 (1994) (emphasis added) (citations omitted).
Despite this clear language from a California appellate court, the majority states that “the district court’s determination that a nuisance must be associated with property is contrary to clearly established California law.” Amazingly, as authority for the clearly established law of California, the majority cites the Ohio Supreme Court and an Illinois appellate court. But it is the law of California that we are obliged to interpret today, not the law of Ohio or Illinois. Cf. Erie, 304 U.S. at 78, 58 S.Ct. 817. No California court has ever allowed a public nuisance claim to proceed against a manufacturer for lawful products which have been lawfully placed in the stream of commerce. See City of San Diego, 30 Cal.App.4th at 586, 35 Cal. Rptr.2d 876. It therefore comes as no surprise that the majority does not cite a single California nuisance case in which the alleged nuisance did not relate to real property.4
*1224While it devotes many pages to interpreting the Restatement and eases from foreign jurisdictions, the majority has no answer for the following twelve words: “nuisance cases ‘universally’ concern the use or condition of property, not products.” City of San Diego, 30 Cal.App.4th at 586, 35 Cal.Rptr.2d 876.5
I would affirm the dismissal of the nuisance claim.
Basic principles of federalism require us to follow the will of the California Legislature, as construed by California’s highest court, when interpreting the substantive law of California. We must be especially mindful of these principles when the subject matter is sensitive and controversial and when the state’s legislature and high court have addressed it. As a federal court, we may not expand the authoritative pronouncements of a state’s law in search of ways to reach what we view as a just result.
In passing section 1714.4, the California Legislature exempted gun manufacturers from liability for horrific incidents like the San Fernando Valley shootings of August 10, 1999. This may have been an unwise policy, but it is not a policy which we are at liberty to ignore. Like Justice Kennard in Merrill, I am troubled by the facts which give rise to this case. But I too am convinced that it “is not for us to question the wisdom of the Legislature’s considered judgments.” Merrill, 26 Cal.4th at 492, 110 Cal.Rptr.2d 370, 28 P.3d 116 (Kennard, J., concurring).
The debate over the extent to which gun manufacturers should be held liable to victims of gun violence belongs in the democratic process. The public debate benefits from able advocates on all sides — we need not enter it.
I would affirm the district court’s dismissal of all claims.
. Although the statute was repealed effective January 1, 2003, its repeal does not affect this action because the Legislature did not express an intent to apply its repeal retroactively. See Myers v. Philip Morris Companies, Inc., 28 Cal.4th 828, 840, 123 Cal.Rptr.2d 40, 50 P.3d 751 (2002) ("retroactive application [of a law] is impermissible unless there is an express intent of the Legislature to do so”). Section 1714.4 was in effect when the instant action was filed and when the events giving rise to it occurred.
. The majority and both parties seem to assume that section 1714.4 bars all products liability suits against gun manufacturers. But section 1714.4 does nothing of the sort. Rather, it states that certain types of analyses shall not be made in products liability actions. Section 1714.4 certainly would not bar a suit based on a manufacturing defect. For example, if a person were injured by a Colt .45 that was defective because it fired a bullet backward, rather than forward, that person could still sue the manufacturer of the gun for damages. Such an action would indisputably be a products liability action. Nothing in section 1714.4 would preclude it, for the plaintiff's injuries would be caused by the defective "discharge of a firearm,” not by the gun’s potential to cause injury. Cal. Civ.Code § 1714.4(b). The gun would not "be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.” Id. at § 1714.4(a). Instead, the gun would be defective because it "deviatefdj from the manufacturer’s intended result.” Barker v. Lull Engineering Co., 20 Cal.3d 413, 424, 143 Cal.Rptr. 225, 573 P.2d 443 (1978).
. If anything, the facts alleged here are less compelling than the facts alleged in Merrill. In Merrill, the plaintiffs alleged that the defendant gun manufacturer was negligent in that it marketed its guns to the general public while knowing that the guns would find their way to criminals. Here, appellants allege that the appellee gun manufacturers were negligent by marketing their guns to law enforcement while knowing that the guns will find their way to criminals. But appellants’ allegation that the gun manufacturers purposefully "over-marketed” their product to law enforcement, which made the guns reach illegal markets faster, is not legally cognizable. The complaint alleges that "to win favor among police forces” appellees would "offer[ ] incentives, deals, upgrades, and encour-ag[e] police departments to try out new models.” FAC ¶ 147. There is nothing tortious about this behavior. In general, a manufacturer of a legal product has no duty to refrain from attempting to sell as many products as possible.
. The majority maintains that the California Supreme Court "has never limited public nuisance suits in a manner that would prevent the claim alleged here.” Perhaps this is true but I am aware of no principle of law dictating that a cause of action exists because the state’s highest court has not rejected it.
. This statement was not a dictum. It was necessary to the court's decision rejecting a nuisance cause of action based upon defendant’s products. In any event, a "federal court exercising diversity jurisdiction is bound to follow the considered dicta as well as the holdings of state court decisions.” Homedics v. Valley Forge Ins. Co., 315 F.3d 1135, 1142 (9th Cir.2003) (quoting Rocky Mountain Fire & Casualty Co. v. Dairyland. Ins. Co., 452 F.2d 603, 603-4 (9th Cir.1971)).