Newsom’s California Gun Ploy Tests GOP’s Texas Abortion Law Strategy - U.S. News & World Report
California Gov. Gavin Newsom is pledging to create a new law allowing private citizens to sue anyone making or selling assault rifles, mirroring the novel mechanism of a controversial measure banning nearly all abortions in the state of Texas.
But imitation, in this case, is not a form of flattery. Newsom’s proposal is a sharp escalation in the partisan battle over the Texas abortion restriction and comes as a direct response to the Supreme Court’s ruling last week allowing the ban to stay in place while legal challenges of a limited scope are permited to continue.
The proposal, while partly a calculated political play, also may be the beginning of what some legal experts say could be a slew of similar laws using the same mechanism to target any number of rights and issues privileged by both the left and the right.
“On the other side of the political spectrum, if, you know, somebody tries to exercise the right to same sex marriage, you could imagine a state legislature allowing suits against people who are providing services on an equal basis to same sex couples or something like that,” says Michael Dorf, a law professor at Cornell Law School and expert in constitutional law.
For now, though, the issue is guns. And in the case of the California law, if created and passed, it would mark the realization of grave concerns by some gun rights groups that have found themselves unusual allies with abortion rights advocates in opposition to the Texas measure.
It started when Newsom said he was “outraged” by Friday’s 5-4 ruling by the Supreme Court’s conservative majority allowing some – but not all – legal challenges to continue.
“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 in a statement Saturday, referencing a ruling in June by a federal judge finding unconstitutional California’s ban on the manufacturing and sale of assault rifles and comparing the AR-15 rifle to a Swiss Army knife as the “perfect combination of home defense weapon and homeland defense equipment.”
The Democratic governor said he directed his staff to work with the state legislature and attorney general on the creation of a bill “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.”
Leitita James, the attorney general of New York, said Tuesday on the talk show “The View” that she was interested in following in Newsom’s footsteps.
Newsom’s proposed mesaure is an almost perfect imitation of the Texas abortion ban, known as S.B. 8, which bars abortions after fetal cardiac activity is detected – typically at about six weeks, before many women know they are pregnant. The law places the enforcement of the ban not in the hands of the state but in the hands of private citizens, who can sue anyone who aids a woman in getting an abortion for at least $10,000 in damages.
That enforcement scheme has by design made it extremely difficult to challenge the law in court, despite the fact that the ban violates the constitutionally protected right to an abortion recognized by the Supreme Court.
Justice Sonia Sotomayor raised the prospect of copycat laws in a dissent.
The majority’s opinion “clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree. This is no hypothetical. New permutations of S.B. 8 are coming,” Sotomayor wrote in the dissent, in which she was joined by Justices Stephen Breyer and Elena Kagan.
Some gun rights advocates have warned for months that the Texas law could backfire and be used as a blueprint for blue states to go after gun rights and other issues cherished by the right. The Firearms Policy Coalition, a brash gun rights nonprofit, filed a brief with the Supreme Court in opposition to the Texas measure, warning that similar laws could be used to bypass other rights.
“It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms,” the group said in the brief.
It also noted that similar mechanisms could be used to go after anything from same-sex marriage to protests to people who refuse to wear masks or get the coronavirus vaccine.
“A private bounty scheme could easily be modified to target persons who marry someone of the ‘wrong’ sex or color, criticize the government, refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues, or engage in any other protected but disfavored conduct,” it said.
(The group, when asked for comment, pointed to a statement released Saturday in which it said it had “predicted that tyrants like Gavin Newsom would use the Texas model against fundamental human rights including the freedom of speech and the right to keep and bear arms” and pledged to “fight Newsom's war on human rights head-on.”)
The argument echoes one made by the petitioners challenging the Texas law. Legal experts, too, have warned of chilling effects of the ban, and that similar frameworks may be used by states red and blue to target any number of rights – particularly when those rights are locally unpopular and their scope uncertain, says Dorf.
Dorf, along with a handful of other legal scholars, filed a brief to the Supreme Court cautioning against the consequences of allowing the Texas ban to stay in place.
“I do think what enables this strategy to work is uncertainty about the scope of a right,” Dorf says.
The scope of abortion rights is currently uncertain, Dorf notes. The Supreme Court itself appears poised to uphold a Mississippi law banning abortion after 15 weeks and overturn the precedent set in the landmark 1973 Roe v. Wade ruling.
Gun rights, too, are still the subject of numerous legal battles.
“What Governor Newsom is proposing does operate in an area of uncertainty. He's not proposing S.B. 8-style private litigation against all gun owners, it's against owners of assault rifles, and the law is currently uncertain with respect to assault rifles,” Dorf says. Religious exemptions may fall into that bucket of uncertain scope as well, he says.
The National Rifle Association said in a statement that Newsom “misunderstands the actions of the Supreme Court – and the limits of his war on lawful gun ownership.” The architect of the Texas abortion ban also flatly dismissed Newsom’s proposal.
“I would tell Gov. Newsom good luck with that,” Texas State Sen. Bryan Hughes, who wrote the Texas law, told The Texas Tribune Monday. Hughes said the approach would not be effective against “firmly established constitutional rights.”
But that view bucks against what the Texas Solicitor General Judd Stone told the high court in November during oral arguments. Stone was asked by Justice Brett Kavanugh if, according to his arguments and the scheme of the Texas measure, a law allowing citizens to sue anyone who sells an AR-15 for a million dollars in damages would be exempt from pre-enforcement review at the federal level.
Stone said that without action from Congress, it would.
source: https://www.usnews.com/news/national-news/articles/2021-12-14/newsoms-california-gun-ploy-tests-gops-texas-abortion-law-strategy
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