The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, California enacted SB 1327, a gun control law deliberately modeled on Texas' SB 8 anti-abortion law. The purpose of both is to evade judicial review by delegating enforcement exclusively to private "bounty hunter" litigants, thereby making it difficult to for people whose rights are targeted to file preenforcement challenges to the law:
The bill, SB 1327, allows Californians to sue those making, selling, transporting or distributing illegal assault weapons or ghost guns for at least $10,000 in damages. Gun dealers who illegally sell firearms to those under the age of 21 could also be liable for the same damages.
The law is modeled after the Texas "heartbeat act," SB 8, which prohibits abortions as early as six weeks into a pregnancy. That law relies on private citizens filing lawsuits to enforce it by placing $10,000 bounties on doctors, providers and others involved in providing abortion care.
Legal experts had predicted that the SB 8 formula could be used beyond abortion. After the U.S. Supreme Court declined to block the abortion law last year, Newsom called on his state's legislature to pass a similar bill around gun safety….
"If Texas is going to use this legal framework to essentially outlaw abortion and harm women, all with the Supreme Court's blessing, California is going to use it to save lives and take AR-15s off our streets," state Sen. Bob Hertzberg, who authored SB 1327, said in a statement.
Further driving home this point, Newsom ran full-page ads in several Texas newspapers Friday touting California's answer to the Texas bill.
Like SB 8, California targets a wide range of people. It doesn't simply authorize lawsuits against buyers and sellers of the weapons in question, but anyone who "within this state may manufacture or cause to be manufactured, distribute, transport, or import into the state, or cause to be distributed, transported, or imported into the state, keep for sale, offer or expose for sale, or give or lend" any of the weapons covered by the law. If, for example, you lend one of these guns to a friend or relative for an hour or two or "cause" someone else to do so, you might be liable. And, as with the Texas law, the liability here starts at $10,000 but could easily grow. This is meant to deter people from taking the risk of being sued in order to try to vindicate their rights in court. Even a small chance of defeat might carry a hefty expected price tag.
The California law is a direct result of the Supreme Court's murky December 2021 ruling blocking some possible pathways to challenge the Texas law, but potentially leaving others open against state officials that might play some role in enforcing it. As I and others have long predicted, if the Texas SB 8 ploy is not definitively repudiated by the Court, it could serve as a model for states seeking to undermine a wide range of constitutional rights, including those valued by conservatives, as well as liberals. California has now done exactly that.
To its credit, the ACLU—which is generally sympathetic to gun control, opposes SB 1327 because of the danger of extending the SB 8 model:
The American Civil Liberties Union California Action opposed the measure precisely because it is modeled after Texas' abortion law, warning that it "would set a dangerous legal precedent" and legitimize models like SB 8.
"The problem with this bill is the same problem as the Texas anti-abortion law it mimics: it creates an end run around the essential function of the courts to ensure that constitutional rights are protected," ACLU California Action said in a letter to the state legislature in May.
Conservative gun rights advocates may comfort themselves with the notion that SB 1327 isn't much of a threat because those threatened by it can feel confident of prevailing in court against "bounty hunter" plaintiffs, thanks to the Supreme Court's recent Bruen decision bolstering Second Amendment rights. Such confidence is misplaced. As my co-bloggers Eugene Volokh and Randy Barnett (both Second Amendment experts and longtime gun rights advocates), have explained, Bruen still permits a wide range of gun regulations and the boundaries of the right it protects are often fuzzy. Whether courts would uphold the restrictions in SB 1327 under Bruen is far from clear. Given the enormous potential costs of losing, gun owners and dealers might well be deterred from trying their luck, just as most abortion providers in Texas were deterred from testing SB 8, even before the Supreme Court abrogated nearly all judicial protection for abortion rights in the Dobbs decision.
What is true for gun rights is true for a wide range of other constitutional rights, including freedom of religion, some aspects of freedom of speech, property rights, and much else. All of these also have fuzzy boundaries that state governments could use SB 8-style laws to attack.
The best solution to this problem is a Supreme Court decision making it clear that at least some state officials involved in enforcing judicial decisions under SB 8-type laws can be sued in preenforcement lawsuits, which can then result in broad injunctions against future enforcement of these laws.
The advice I gave to opponents of SB 8 in March may no longer be of much use in challenging SB 8 itself, in the aftermath of Dobbs (as even a challenge that got around the procedural obstacles would now almost certainly lose on the merits). But it still applies to those seeking to challenge SB 1327:
As I have previously pointed out, [Justice] Gorsuch's reasoning [in the plurality Supreme Court opinion in the 2021 SB 8 ruling] may well permit lawsuits against state officials tasked with enforcing state court judgments, such as sheriffs. Such people are not judges, and therefore not subject to the Supreme Court's precedents limiting injunctions against state court proceedings. There may be other nonjudicial state officials involved in the enforcement of judgments, as well.
Opponents of SB 8 [and now SB 1327] would do well to search out all such potential defendants, and file cases against all of them. At least two of the justices who joined Gorsuch's opinion expressed grave concerns, in oral argument, about the threat SB 8 poses to constitutional rights (Kavanaugh and Barrett). Only one of the "Gorsuch four" needs to switch in order to defeat the SB 8 ploy in a future case. The three liberal justices and Chief Justice John Roberts have already indicated (in their opinions in the December ruling) that they are open to allowing lawsuits against state court clerks.
I am far from infallible when it comes to such predictions. But I think there's a strong likelihood that at least one of the four will indeed switch, if faced with a choice between modestly weakening the abstention and sovereign immunity doctrines underpinning SB 8, and imperiling judicial protection for a wide range of constitutional rights—and in the process significantly weakening the power of judicial review.
Perhaps a case brought against SB 1327 would be a good vehicle to get one of the Gorsuch Four to see the light on this issue!