Justice Sonia Sotomayor warned politicians about copying the novel law’s enforcement mechanism in order to “target locally disfavored right,” which includes “gun rights”, when the Supreme Court decided last Friday that abortiful providers could not sue Texas Attorney-General Ken Paxton, judges or court clerks to repeal the state’s abortion ban. A day later, the Court issued an indictment. Whole Woman’s Health, v. Jackson, California Gov. Gavin Newsom threatened just that.
Newsom (a Democrat) isn’t clear if he really wants to pursue legislation that takes a leaf from S.B. 8 the Texas abortion law by authorizing private suits against those who sell “assault weapon” 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 that Newsom was using the proposal to get support among his progressive base voters before he could run for President. Although Newsom’s idea does not result in legislation, it illustrates the threat that the S.B. poses to Newsom. 8. The strategy involves enlisting private bounty hunter to enforce laws that would otherwise be blocked promptly by the 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. California, however, will now be able to shield its laws from the review of federal courts. They can compare assault weapons with Swiss Army knives. Texas was using that power to place women at risk.
The “Swiss Army knife” reference refers to the June 2021 ruling in which U.S. District Judge Roger Benitez ruled that California’s ban on “assault weapons” was unconstitutional. Benitez said in the first line of his 94 page opinion, “The popular AR-15 rifle” is “a perfect mixture of home defense weapon & homeland defense equipment.” He argued that California violated the Second Amendment when it prohibited firearms common usage for legal purposes.
California’s law is still in force pending appeal. It seems probable that the U.S. Court of Appeals, 9th Circuit will uphold California’s “assault weapons” ban. This would allow the Supreme Court to consider the constitutionality bans such as California’s that target semi-automatic rifles with military-style features like pistol grips and folding stocks.
Newsom was clearly upset that a federal judge deemed California’s law prohibiting possession and production as incompatible with the Second Amendment. Newsom said that he would respond to the ruling by looking at legislation that is similar to S.B. 8, which bans abortion after fetal cardiac activity can be detected but reserves enforcement to private civil actions.
S.B. S.B. Newsom explained that his staff had been instructed to assist the Legislature and Attorney General in drafting a bill to allow private citizens the right to sue for injunctive relief as well as statutory damages at minimum $10,000 per violation. They also have to pay legal expenses.
Newsom envisions the same approach for “ghost gun kits”.[s]”Parts” means components which allow people to build their firearms. California legislation that took effect July 1, imposes additional restrictions on sales of receivers or unfinished frames. It also requires that sellers obtain business licenses. Also, they must complete all transactions in person and undergo background checks. Newsom’s bill would presumably allow for lawsuits to be filed against those who break these requirements.
It seems that even though California regulations are not being enforced by a court, the fear of expensive litigation will continue to discourage gun kit sales. Gun kit sellers could use the Second Amendment to raise Second Amendment claims if sued. This is similar to abortion providers being sued under S.B. Eight can claim that the law violates the Supreme Court’s precedents. The same applies to people selling firearms that California considers “assault weapon”: Even if the Supreme Court or the 9th Circuit agrees with Benitez’s position, the defendants would have to be concerned about being sued.
Newsom could argue that the turnabout method is fair play. But, his endorsement for it as a way to evade pre-enforcement reviews by federal courts shows his criticisms of S.B. 8. is not about principled objections to violating constitutional rights, but is about who’s ox? Newsom believes that California’s gun laws “protect lives,” and the S.B. 8 “put[s]”Women in danger” Supporters of S.B. 8. The law protects people’s lives. Every abortion that is prevented by litigation threatens to endanger the life of a child.
Even more, Texas’s law supporters believe that the 14th Amendment does not protect a legal right to abortion. Newsom, on the other hand, believes the Second Amendment gives people the right to possess guns they don’t like and to provide parts that enable them to make firearms. Their commonality is a refusal of respecting the decisions made by the courts about whether policies they choose are compatible with the Constitution.
The Firearms Policy Coalition, (FPC), filed Supreme Court briefs to support the pro-life providers challenging S.B. 8 took a pragmatic but principled stand. According to the group, Texas legislators could limit the right to abortion by using private enforcement in order to bypass early judicial review.
“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]The FPC stated that they had established a bounty program with the same unbalanced penalties and procedures as Texas and created a system to compensate them. If state officials were prohibited from filing suit to enforce such laws, these States might contest any enforcement challenges on the grounds Texas asserts here. However, the Second Amendment chill would still exist and all citizens could bring suit to stop the law being applied.
FPC suggested possible uses for the S.B. 8 strategy:
A $10,000 fine plus attorney’s fees could be imposed on anyone who makes false statements of facts, whether negligently or not, via television and the internet. Nobody really much likes First Amendment libel jurisprudence anyway these days….
You don’t have to like all those protesters constantly criticizing government. Bounties will be paid to everyone next time Second Amendment activists rally in support for the right to bear and keep arms. The right to protest, assembly, and petition can all be a concern for courts if a case is being brought. Protesters may continue at their risk, hoping that the Court will grant cert. After many years of litigation in state court and possibly a series of hostile rulings by defendants, the Court may grant cert.
FPC noted, however that plaintiffs could increase the amount they offer to people who sue them for exercising constitutional rights. They could also offer $1 million if legislators feel that $10,000 per violation does not provide enough deterrent.
In an earlier stage Whole Woman’s Health, v. JacksonChief Justice John Roberts already voiced his disgust at S.B. 8’s “unprecedented” end run about judicial review has left him wondering, “Whether a state can escape responsibility for its own laws in such an a way.” Justice Brett Kavanaugh agreed that the FPC’s argument was also valid. Kavanaugh noted last month during oral arguments, “Second Amendment rights are free exercise of religious rights.” [and]Through laws like S.B., free speech rights could be “targeted by other states”. 8. Kavanaugh wondered if anyone selling an AR-15 or refusing to sell a service or good for use during a same-sex union would be liable for one million dollars. Judd Stone of the Texas Solicitor General confirmed this.
Kavanaugh agreed with the majority that there was no way for abortion providers to obtain a federal pre-enforcement injunction against S.B. 8. Other than ancillary medical regulator actions, The main protection against such scenarios is political self-restraint. Newsom’s reactions to the Supreme Court decision gives an indication of just how unlikely that is.
Travis County Judge David Peeples, Texas District Court, ruled that S.B. 8 is in violation of the state constitution’s standing requirements, such as the separation and rights to due process. Peeples warned that “if it’s civil procedures are Constitutional for Abortions, they will also be Constitutional for other Targets.” To drive undesirable activities from the business, other states or future Texas Legislatures might take these provisions and copy them. These procedures might be used by other states, with differing priorities and electorates, to drive undesirable behavior out of businesses or put people out of work.
Newsom’s threats show that this is a real concern. Peeples stated that if SB 8’s civil procedure is constitutional, then a creative and new series of statutes could emerge year after year. These could be enforced year by year by ideological claimants who could sue in their own counties where judges would enforce the law. “Pandora’s Box is already opened, but time will reveal.”