Gov. Gavin Newsom announced plans late Saturday to create a new California assault weapons ban that would be insulated from many types of legal challenge, using as a model a controversial Texas abortion law the U.S. Supreme Court let stand last week.
And constitutional scholars said Sunday that Newsom’s approach may well be sound.
Newsom is seeking to incorporate an innovative legal mechanism adopted by conservative Texas state leaders, who imposed abortion restrictions enforced not by government but by private citizens. Under the law, citizens can file civil suits against doctors and clinics who perform abortions — and because state regulators are not involved in the enforcement process, abortion defenders are limited in their ability to sue the state to challenge it.
The Supreme Court, with a 5-4 decision Friday, let the Texas approach stand, at least for now. It did so even though, under Roe v. Wade, legal abortion remains the law of the land.
“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 Saturday night tweet. “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.”
In June, a federal court overturned California’s current, decades-long assault weapons ban, which uses a more conventional legal mechanism in which state government enforces the ban. The conservative judge who wrote the ruling downplayed the dangers posed by assault weapons, at one point likening them to Swiss Army knives. Later that month, a three-judge panel on the U.S. Ninth Circuit Court of Appeals blocked the federal court’s decision, stayed the judge’s ruling, restoring the ban while court battles continue.
Newsom said he will work with state legislators and Attorney General Rob Bonta to create a modified assault weapons law that allows California residents to seek damages of up to $10,000 per violation of the ban plus attorneys fees “against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts” in the state.
He added, “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 governor’s press office did not respond to additional requests Sunday for comment and details about the proposed legislation.
The Texas abortion bill, SB8, has been in effect since June. It outlaws abortions after cardiac activity is detected in the embryo, which is usually around six weeks. The law does not make exceptions for instances of rape or incest.
Berkeley Law School Dean and constitutional law expert Erwin Chemerinsky said that the U.S. Supreme Court’s decision on Friday has “opened a dangerous door” by allowing citizen suits to enforce questionable laws.
It is likely, he said, that many states could now adopt laws that allow citizens to be sued for constitutionally protected activities.
“I expect states that don’t like same-sex marriage will pass a law saying, ‘Anyone who forms the same-sex wedding are subjected to civil liability.’ And you can go on and on with examples,” he said.
However, Chemerinsky argued that there is a fundamental difference between the Texas abortion law and the one that Newsom is proposing, a difference that makes Newsom’s new assault weapons ban far more defensible.
The Texas law, he pointed out, allows a citizen to sue even though having an abortion up to 24 weeks is a constitutionally protected activity. He contrasted that with Newsom’s proposed legislation, which would let people sue others for distributing, selling and manufacturing assault weapons and ghost guns, activities that the Supreme Court has never ruled are constitutional rights.
It’s a difference that Stanford Law associate professor Diego Zambrano, who has been closely following the Texas abortion bill, agrees is key.
“The Supreme Court has never said that states cannot regulate the sale of assault weapons,” said Zambrano, whose expertise is in civil procedure. “That is different. In this sense, California is being better than Texas. What Texas was doing is directly attacking a recognized federal constitutional right. (Newsom is) not attacking a well-recognized federal constitutional right to an assault weapon, because that right has never been recognized.”
He said that California is “well within their rights” to adopt the enforcement mechanisms in the Texas abortion bill.
“The Supreme Court has said states can do this, and so states should be able to experiment,” he said. “Not in violating the Constitution — I would not want that — but in seeing where exactly those constitutional rights lie and testing those boundaries, which states always do.”
Both Zambrano and Chemerinsky said that, even if conservative justices on the Supreme Court disapprove of Newsom’s proposal, it is unlikely they would shift their ruling.
Zambrano pointed out that Associate Justice Brett Kavanaugh said during oral arguments that the approach in the abortion law could be used against the Second Amendment, but he still voted with the court’s conservative majority in insulating the Texas bill from challenge in federal courts.
Chemerinsky concurred with Zambrano’s analysis, and said that he expects the Supreme Court decision “to be the law for sometime to come.”
“I think it would take different justices to reverse Friday’s decision,” he said.
Newsom’s announcement has already sparked aggressive responses from pro-2nd Amendment groups in the state.
The Firearms Policy Coalition, a Sacramento-based nonprofit that works to expand gun ownership rights, said Saturday night in response to the governor’s proposal that it expected “tyrants like Gavin Newsom” to use the Texas model as a way to attack “fundamental human rights” surrounding gun ownership. The group, which issued a press release in response for a request for comment, said it was “prepared to litigate” against Newsom’s law.
“If Gavin Newsom wants to play a game of constitutional chicken, we will prevail,” the organization’s press release read.