California Gov. Gavin Newsom thrilled many this weekend by saying that his administration will model a new law on Texas’ abortion ban that would let private citizens sue anyone who makes or sells assault weapons or ghost guns. It won’t work. Legally, that is. It will be hugely successful politically, but not without costs to the state and potential litigants.
Gov. Newsom denounced the Supreme Court in Women’s Health v. Jackson for refusing to enjoin the Texas law that allows people to sue anyone who “aids or abets” an abortion performed after about six weeks. That led to widespread calls for the passage of legislation to “codify Roe,” including from the White House.
Newsom, however, wants to replicate the law to limit Second Amendment rights the way that conservatives used it to limit reproductive rights.
“I am outraged by yesterday’s U.S. Supreme Court decision allowing Texas’s ban on most abortion services to remain in place. But if states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives, then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”
Newsom said that his staff will be working with the Legislature and California Attorney General Rob Bonta to craft the bill to let citizens sue anyone who “manufactures, distributes, or sells an assault weapon or ghost gun kit or parts” in California. They could seek damages of at least $10,000 per violation plus costs and attorney’s fees.
Good luck with that.
The problem is multifold. First, the Texas law was quickly found to be unconstitutional by the district court, as would the California law. Indeed, many of us declared the law as facially unconstitutional under existing precedent on the day that it was enacted. That means that, while there are litigation costs, those costs would decrease quickly as other courts declare challenges to be unconstitutional.
Second, the Supreme Court just allowed pre-enforcement challenges so the California law could be challenged to avoid any “chilling effect” on gun rights. Eight out of nine justices agreed that such early challenges are permissible against those with enforcement responsibilities in the abortion area. As a state that has led efforts to limit gun rights, there are a host of such officials with similar licensing powers in California.
Third, and most importantly, Newsom limited the law to gun manufacturers, distributors, and sellers” to the exclusion of a wider array of purchasers or “aiders and abetters.” The Texas law was so menacing because it exposed such a wide array of people to potential lawsuit. It would not be quite as popular to go after gun owners or gun rights groups. Yet, Newsom is targeting businesses which are going to be less intimidated by such litigation costs in a law that would be clearly unconstitutional.
That is why, if the law is crafted as Newsom suggests, this won’t work legally. Nevertheless, there will be much cooing on cable programs at the cleverness of Newsom and the comeuppance for conservatives. Newsom will seize the moment in terms of popularity while leaving the costs to others to bear in the later failed litigation.
Newsom did not help things by declaring “If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that.” That is openly acknowledging that this law is meant to achieve indirectly what the state has failed to do directly: reduce gun ownership. That is precisely why the Supreme Court just green-lighted pre-enforcement challenges to the Texas law and now, with the help of Newsom, the California law would collapse quickly on the same grounds.
In the recent decision, Chief Justice John Roberts noted that
“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. … Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
With his bravado, Newsom has guaranteed that courts will strike down his law as an open “mockery” of gun rights precedent and he will actually box in liberal judges and jurists in voting against the California law on the same grounds.
Indeed, the California law would put the Biden Administration into a bind. It just intervened first as an amicus party and then an actual party in the Texas litigation. (As expected, the Court tossed out the Biden Administration’s lawsuit as “improvidently granted”). The Administration insisted that such a law is an abomination given that the rights of abortion are established and this is an effort to nullify those rights through exposure to lawsuits. Here Newsom himself said that that is precisely what they want to do.
So, will the Biden administration refuse to oppose the law in defense of established gun rights as it did reproductive rights? If so, it would support criticism of the Justice Department of advancing political agendas and make Attorney General Merrick Garland look like a feckless functionary. With the mid-term elections looming and falling polling numbers across the country, that is probably not a choice the Biden Administration would like to make to defend a legislatively-supported soundbite.
Once the early courts strike down the California law, some citizens could face sanctions for frivolous lawsuits seeking litigation costs (unless such motions are blocked under the law). Moreover, there will be a great expense of drafting and defending a law designed to support a soundbite. Many judges will be even less enamored with being asked to participate in what is largely political performance art.
That is why the new California law is certain to play better on cable than in the courts.