When the Supreme Court ruled last Friday that abortion providers cannot sue judges, court clerks, or Texas Attorney General Ken Paxton to block the state's abortion ban, Justice Sonia Sotomayor warned that politicians could copy the law's novel enforcement mechanism to "target locally disfavored rights," including "gun rights." The day after the Court's decision in Whole Woman's Health v. Jackson, California Gov. Gavin Newsom threatened to do just that.
It is not clear whether Newsom, a Democrat, is serious about pursuing legislation that would take a page from S.B. 8, the Texas abortion law, by authorizing private lawsuits against people who sell "assault weapons" or DIY gun kits. "I think he's just using it as an opportunity to grandstand," state Sen. Brian Dahle (R–Bieber) told Politico. Dahle "said the proposal was most likely a stunt for Newsom to win favor with his progressive base of voters ahead of a possible run for president." But even if Newsom's proposal does not bear legislative fruit, his impulse illustrates the threat posed by the S.B. 8 strategy of enlisting private bounty hunters to enforce a law that otherwise would be promptly blocked by federal courts.
"I am outraged by yesterday's U.S. Supreme Court decision allowing Texas's ban on most abortion services to remain in place, and largely endorsing Texas's scheme to insulate its law from the fundamental protections of Roe v. Wade," Newsom said in a statement released on Saturday. "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."
That "Swiss Army knives" reference alludes to a June 2021 decision in which U.S. District Judge Roger Benitez concluded that California's "assault weapon" ban is unconstitutional. "Like the Swiss Army Knife," Benitez wrote in the opening line of his 94-page opinion, "the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment." His general point was that California had violated the Second Amendment by prohibiting firearms that are in common use for lawful purposes.
California's law remains in effect pending appeal, and it seems likely that the U.S. Court of Appeals for the 9th Circuit, which last month said a three-judge panel had erred by rejecting a challenge to Benitez's 2019 ruling against California's 10-round magazine limit, will eventually uphold the state's "assault weapon" ban as well. Such a decision would give the Supreme Court an opportunity to address the constitutionality of bans like California's, which target semi-automatic rifles based on "military-style" features such as pistol grips, folding stocks, and flash suppressors.
In the meantime, Newsom is obviously irked that a federal judge has deemed California's law, which bans possession as well as production and sale, inconsistent with the Second Amendment. Newsom says he will respond by exploring legislation modeled after S.B. 8, which bans abortion after fetal cardiac activity can be detected but reserves enforcement to private civil actions.
S.B. 8 authorizes "any person" to sue "any person" who performs or facilitates a prohibited abortion, promising successful plaintiffs at least $10,000 in "statutory damages" per violation, plus reimbursement of their legal expenses. "I have directed my staff to work with the Legislature and the Attorney General on a bill that 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," Newsom said.
Newsom imagines taking the same approach with "ghost gun kit[s] or parts," meaning components that enable people to make their own firearms. A California law that takes effect on July 1 imposes new restrictions on the sale of unfinished frames and receivers, requiring that suppliers obtain business licenses and complete transactions in person with background checks. The bill Newsom has in mind presumably would supplement state enforcement of those requirements by authorizing private lawsuits against people who violate them.
The idea seems to be that the threat of costly litigation would continue to deter the sale of gun kits even if a court barred state officials from enforcing California's regulations. Suppliers of gun kits could raise Second Amendment arguments if they were actually sued, just as abortion providers who are sued under S.B. 8 can argue that the law is clearly unconstitutional under the Supreme Court's precedents. Likewise with people who sell firearms that California has classified as "assault weapons": Assuming that the 9th Circuit or (more likely) the Supreme Court agrees with Benitez, they would still have to worry about being sued, which would inflict a penalty even if they ultimately prevailed.
While Newsom might argue that turnabout is fair play, his endorsement of this method for evading pre-enforcement review by federal courts shows his criticism of S.B. 8 is entirely about whose ox is gored rather than a principled objection to trampling on judicially recognized constitutional rights. As Newsom sees it, California's gun control laws "protect people's lives," while the S.B. 8 "put[s] women in harm's way." For supporters of S.B. 8, of course, the law is very much about protecting people's lives: Each abortion prevented by the threat of litigation represents a child who otherwise never would have been born.
More to the point, the Texas law's supporters think it is absurd to believe the 14th Amendment protects a right to abortion, while Newsom thinks it is absurd to believe the Second Amendment protects a right to own guns he does not like or to supply parts that help people to make firearms. What unites them is an unwillingness to respect the judicial branch's determination of whether the policies they favor are consistent with the Constitution.
By contrast, the Firearms Policy Coalition (FPC), which filed Supreme Court briefs in support of the abortion providers who challenged S.B. 8, took a principled stand that was also pragmatic. If Texas legislators can chill the exercise of abortion rights by using private enforcement to evade early judicial review, the group warned, legislators with different policy preferences could use the same strategy to chill the exercise of constitutional rights they view as phony or inconvenient.
"It takes little in the way of creative copying for States hostile to the Second Amendment—New York, California, New Jersey, Hawaii, etc.—to declare that the ownership or sale of a handgun is illegal, notwithstanding [District of Columbia v. Heller], and set up a bounty system with the same unbalanced procedures and penalties adopted by Texas in this case," the FPC said. "If state officials are prohibited from bringing suit in their official capacities to enforce such a law, such States could dispute any pre-enforcement challenges on the same grounds Texas argues here. But the chill of Second Amendment rights would exist even without an actual citizen's suit being brought and there would be a substantial incentive to discourage an actual application of the law so long as the chill was even partially effective."
The FPC suggested other possible applications of the S.B. 8 strategy:
Perhaps a $10,000 bounty (plus attorney's fees) against anyone uttering, even negligently or without material harm, a false statement of fact on television or the internet? Nobody really much likes First Amendment libel jurisprudence anyway these days….
Don't like those bothersome protesters always criticizing the government? Bounties on everyone the next time Second Amendment advocates rally in support of the right to keep and bear arms, school choice advocates march for their children's education, police reform advocates gather to protest qualified immunity, labor picketers protest in support of unions and collective bargaining, or anyone else shows up and deigns to assemble and complain. Courts can worry about the right to speak, assemble, and petition if and when a case is brought. But in the meantime, protesters can proceed at their own risk and hope that this Court grants cert. after years of litigation in state courts and a potential string of hostile rulings before defendants can even ask this Court for discretionary review.
The FPC also noted that the chilling effect could be magnified by increasing the bounty offered to plaintiffs who sue people for exercising their constitutional rights. If legislators decide that $10,000 per violation is not enough of a deterrent, they could offer, say, $1 million.
At an earlier stage in Whole Woman's Health v. Jackson, Chief Justice John Roberts had already expressed his dismay at S.B. 8's "unprecedented" end run around judicial review, wondering "whether a state can avoid responsibility for its laws in such a manner." The FPC's argument also resonated with Justice Brett Kavanaugh, who during oral arguments last month noted that "Second Amendment rights, free exercise of religion rights, [and] free speech rights" could all "be targeted by other states" through laws similar to S.B. 8. If anyone who "sells an AR-15" or who "declines to provide a good or service for use in a same-sex marriage" were "liable for a million dollars to any citizen," Kavanaugh wondered, would federal courts still be powerless to intervene before such lawsuits make their way through state courts? Texas Solicitor General Judd Stone confirmed that they would.
In the end, Kavanaugh joined the majority in concluding that abortion providers had no viable option to seek a pre-enforcement federal injunction against S.B. 8, except for ancillary actions by state medical regulators. That means the main safeguard against scenarios like the ones that the FPC described is self-restraint by politicians, and Newsom's reaction to the Supreme Court's ruling gives you a sense of how likely that is.
Travis County, Texas, District Court Judge David Peeples ruled last week that S.B. 8 violates the state constitution's standing requirements for civil lawsuits, the separation of powers, and the right to due process. "If its civil procedures are constitutional for abortions, they will be constitutional for other targets," Peeples warned. "Other states (or future Texas Legislatures) might copy and paste them onto other substantive provisions to drive undesired activities out of business. In our polarized country, other states with different electorates and different priorities might decide to use these procedures to put other people out of business or to stamp out behavior they dislike intensely, including other areas of life covered by constitutional law."
Newsom's threat shows this concern is not far-fetched. "If SB 8's civil procedures are constitutional," Peeples wrote, "a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties, where the judges would do their constitutional duty and enforce the law. Pandora's Box has already been opened a bit, and time will tell."