The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prior to the Supreme Court's consideration of Whole Women's Health v. Jackson and United States v. Texas, the Firearms Policy Coalition warned that barring pre-enforcement challenges to Texas S.B. 8 would make it easier for Blue states to constrain Second Amendment and other constitutional rights. They raised their concerns in both a cert petition and brief on the merits.
"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. 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.
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 or ghost gun kit or parts in the State of California. 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."
The Firearms Policy Coalition issued a response saying, in effect, "we told you so," and promising to challenge Gov. Newsom's challenge to constitutionally enumerated rights.
If California pursues this course, it will be interesting to see whether it fully adopts the S.B. 8 strategy. One reason it might not is that California might be wary of creating firearms offenses that cannot be charged or prosecuted by government officials. On the other hand, California may seek legislation to impose potentially ruinous liability on gun manufacturers, as some plaintiffs lawyers tried to do.
Something else worth noting: Prior to S.B. 8, most anti-abortion legislation was subject to pre-enforcement challenge and enjoined before taking effect. This was part of what prompted the Texas law's particular legislative design. Most gun regulations, on the other hand, have been upheld by federal courts (particularly in the Ninth Circuit)—though that might change if the Supreme Court calls for more careful scrutiny of laws affecting the right to keep and bear arms.