Yesterday California passed SB 1327. This gun control law was deliberately inspired by Texas’ SB 8 antiabortion law. Both are designed to avoid judicial review and delegate enforcement to only private “bounty hunters” litigants. This makes it more difficult for those whose rights have been targeted to challenge the law’s enforceability.
Californians will be able to sue illegal gun dealers for up to $10,000 in damages under the SB 1327 law. Illegally selling firearms to anyone under 21 years old could result in the same damages.
This law was inspired by the Texas heartbeat act, SB 8. It prohibits abortions beginning six weeks after a woman has given birth. The law is enforced by private citizens who file lawsuits. This includes placing $10,000 bonuses on abortion providers, doctors, and anyone else involved in the provision of care.
The SB 8 formula was predicted by legal experts to be able to be used in other areas than 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….
In a statement, state senator Bob Hertzberg said that Texas will use its legal framework “to essentially outlaw abortions and harm women” and California would also use it.
Newsom also ran Friday full-page advertisements in Texas newspapers promoting California’s response to the Texas bill.
California, like SB 8, targets wide-ranging people. The law doesn’t just authorize the filing of lawsuits against the buyers or sellers of weapons, it also allows anyone “within the state to manufacture, distribute, transport or import into state or cause distribution, transportation, import, transfer, or allow to be distributed into state, keep, sell, offer for sale or lend any weapon covered by the law.” You could be held liable if you loan one of these weapons to someone you know for an hour, or cause another person to do the same. The Texas law states that the maximum liability starts at $10,000, but it could grow. It is intended to prevent people taking on lawsuits in an effort to protect their rights. A small amount of loss can result in a significant price.
California’s law was made possible by the Supreme Court’s December 2021 murky ruling. This decision not only blocked some avenues for challenging the Texas law but also left others wide open to state officials who might have some part in its enforcement. I, along with others, have predicted that the Texas SB 8 tactic will be used by other states to try and undermine constitutional rights in a variety of areas, not just those held dear by liberals but also conservatives. California did exactly the same thing.
It is a creditable move by the ACLU that supports gun control. However, SB 1327 was opposed by the ACLU because it could extend the SB 8 model.
California Action, American Civil Liberties Union California Action, opposed the measure because it was inspired by Texas’ abortion laws. It warned that this would “set a dangerous precedent” and legalize models such as SB 8.
ACLU California Action wrote to the legislature, May: “The problem this bill presents is the same as Texas’s anti-abortion legislation it imitates: It creates an end around the essential function to ensure constitutional rights are protected.”
The Supreme Court recently issued a statement that SB1327 does not pose a danger to conservative gun rights advocates. This is because the plaintiffs who are threatened by the bill can be confident they will prevail in court. BRuedecision to support Second Amendment rights. It is wrong to have such confidence. My co-bloggers Eugene Volokh (both Second Amendment specialists and long-time advocates for gun rights) have mentioned. Bruen It still allows a broad range of gun regulations, and its boundaries are sometimes unclear. It is not clear whether courts will uphold SB 1327’s restrictions. Bruen It is not clear. It is possible that gun owners or dealers may be discouraged by the high cost of losing. Dobbs decision.
The same holds true for guns rights as it does for many other constitutional rights such freedom of religion and property rights. State governments can use SB 8 laws to target these rights.
A Supreme Court ruling stating that state officials who enforce judicial decisions under SB 8 can be sued in preenforcement suits is the best way to solve this problem. This can result in injunctions against further enforcement of these laws.
In the wake of SB 8, my March advice to SB 8 opponents may not be as useful. Dobbs Even a challenge to circumvent the procedural hurdles would almost definitely lose the merits). It still applies for those who challenge SB 1327.
As I previously mentioned: [Justice]Gorsuch’s logic [in the plurality Supreme Court opinion in the 2021 SB 8 ruling]This could allow lawsuits to be brought against officials in charge of enforcing the state court judgements. These people do not have the status of judges and are therefore exempt from Supreme Court precedents that limit injunctions against proceedings at state courts. It is possible that other officials from the state, not judges, may assist in the enforcement and execution of judgements.
Opponents of SB8 [and now SB 1327]It would be a good idea to find all potential defendants and bring cases against them all. Gorsuch was joined by at least two justices (Kavanaugh, Barrett) who expressed grave concern about SB 8’s potential threat to constitutional rights. To defeat SB 8 in future cases, only one “Gorsuch 4” justice must switch. In their December opinions, Chief Justice John Roberts and the three liberal justices indicated that they were open to considering allowing suits against state court clerks.
When it comes to making such predictions, I’m far from perfect. However, it seems likely that at most one of these four could switch if presented with the option of modestly weakening SB 8’s sovereign immunity and abstention doctrines and putting in jeopardy judicial protection of many constitutional rights.
A case against SB 1327 might be an effective way to convince one of the Gorsuch Four about this matter!