By Sam Ozer-Staton
It was the tweet heard ‘round the world. On Saturday, Gavin Newsom, the governor of California, adopted the logic of SB8, the restrictive Texas abortion statute, to directly challenge the gun industry. He wrote:
“SCOTUS is letting private citizens in Texas sue to stop abortion?! If that’s the precedent then we’ll let Californians sue those who put ghost guns and assault weapons on our streets. If TX can ban abortion and endanger lives, CA can ban deadly weapons of war and save lives.”
Newsom’s tweet called for the passage of a new policy but did not outline one in specific terms. The governor’s office did, however, provide some additional details in a statement released over the weekend. The hypothetical bill, which Newsom directed the state legislature and the attorney general’s office to help draft, would “create a right of action allowing private citizens to seek injunctive relief, and statutory damages of at least $10,000 per violation plus costs and attorney’s fees, against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California.”
For Newsom, who survived a statewide recall attempt in September, the announcement signals a return to a role that he often played during the Trump administration: acting as the tip of the spear in the fight against national conservative policies. The Nation’s Elie Mystal summed up the politics of the governor’s decision: “Newsom has done what tons of progressives want elected Democrats to start doing: fight like Republicans.”
But aside from the symbolic value of the announcement, would such a hypothetical law be constitutional? More specifically, would it survive a conservative Supreme Court? According to legal experts, the answer is complicated.
The model for Newsom’s proposed law, Texas’s SB8, relies on an unusual new enforcement scheme. While it effectively bans abortions after six weeks of pregancy, it doesn’t do so explicity. Instead, it allows private individuals to sue an abortion provider or someone suspected of aiding and abetting the “performance or inducement” of an abortion after the six-week window.
The mechanism of vigilante justice created by SB8 has spawned several copycat bills, and the Supreme Court has refused to invalidate the law in two consecutive rulings. In the most recent decision, Whole Woman’s Health v. Jackson, which was issued on Friday, the Court ruled that abortion providers’ lawsuits can go forward against a group of state medical licensing officials (who are authorized to take disciplinary action against the providers), but not against elected officials, state-court judges, and clerks, whom the providers had also tried to sue.
According to Vox’s Ian Millhiser, “[T]he Supreme Court essentially gave its blessing to this scheme,” because “the only people who can be sued are state health officials who play an insignificant role in enforcing SB8.”
So would the Supreme Court be as kind to Newsom’s proposed gun law? According to legal experts, there are crucial differences between Newsom’s law and SB8 that could, in fact, make Newsom’s law more defensible. Diego Zambrano, a professor at Stanford Law School who specializes in civil procedure, told the San Jose Mercury News that the activities that Newsom’s law seeks to limit — the manufacturing, selling, and distribution of assault weapons and ghost gun kits — have never been enshrined as constitutional rights by the Supreme Court.
“The Supreme Court has never said that states cannot regulate the sale of assault weapons,” Zambrano told the Mercury News. “That is different. In this sense, California is being better than Texas. What Texas was doing is directly attacking a recognized federal constitutional right. [The governor is] not attacking a well-recognized federal constitutional right to an assault weapon, because that right has never been recognized.”
Erwin Chemerinsky, Dean of the UC Berkeley School of Law, told the San Francisco Chronicle that courts could be friendlier to Newsom’s law because the governor is “proposing liability for what is already illegal.”
There is disagreement among legal scholars about whether that will be enough to protect Newsom’s law from the Supreme Court’s conservative majority. While Zambrano and Chemerinsky both agree that the Court is unlikely to flip-flop on its precedent simply because Newsom’s law impacts guns and not abortion, progressive legal commentators are not so sure.
“People who think Newsom’s proposed legislation will box the Supreme Court either into striking down SB8 or allowing bounty hunters to sue gun manufacturers simply aren’t paying attention to what this court is doing. These conservatives are not bound by logic,” wrote The Nation’s Mystal.
Meanwhile, conservative groups are already organizing against Newsom’s bill. Pro-gun groups like the NRA and Firearms Policy Coalition have repeatedly argued that the Second Amendment is broad enough to protect the right to the kinds of assault weapons and ghost gun kits that Newsom’s bill targets. Bryan Hughes, the Texas state senator who authored SB8, said on Monday: “If California takes that route, they’ll find that California gun owners will violate the law knowing that they’ll be sued and knowing that the Supreme Court has their back because the right to keep and bear arms is clearly in the Constitution, and the courts have clearly and consistently upheld it.”
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