California's Texas-style gun law: Clever policy or political stunt?

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·Senior Editor
·7 min read
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“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

California’s Democratic Gov. Gavin Newsom signed a new gun control law late last month that allows private citizens to sue anyone who imports, manufactures or distributes illegal firearms in the state.

The law was directly inspired by an abortion restriction that went into effect in Texas last year. That measure, known as S.B. 8, used a unique enforcement mechanism to get around Roe v. Wade — which was at the time still in effect — and effectively ban abortions after about six weeks of pregnancy. But the Supreme Court allowed the Texas law to stay in place, at least temporarily, because the ban is enforced by individuals suing in civil court instead of law enforcement cracking down on abortion clinics.

In June, the court issued a decision overturning constitutional protections established in Roe v. Wade, freeing Texas and other states to ban abortion outright without relying on their novel workaround. But the legal theory behind that law remains untested, creating room for states like California to apply it to other issues like guns.

“If they're going to use this framework to put women's lives at risk, we're going to use it to save people's lives,” Newsom said during a press conference before signing the new gun bill, known as S.B. 1327, into law.

Why there’s debate

Some lawmakers and political commentators on the left have applauded Newsom for taking advantage of the Republican states’ legal strategy. Though S.B. 1327 doesn’t create any new restrictions — everything it applies to is already illegal in California — there’s hope that the threat of severe financial punishment from private lawsuits will create even more incentive for dealers to avoid breaking the state’s gun laws.

Some legal analysts also say the new law is a clever way to force the Supreme Court to directly consider the constitutionality of “bounty” enforcement systems that were first created by S.B. 8. They argue that by using something the court’s conservative majority clearly dislikes — gun restrictions — California may prompt the justices to formally reject the legal theory that both laws are built around. One California Democrat told a statehouse reporter that among the goals of S.B. 1327 is to highlight the “absurdity” of Texas’s abortion law.

Others, particularly conservatives, have characterized California’s new law as an empty political stunt largely designed to draw attention to Newsom, who is often rumored to be eyeing a future presidential run. Some on the left have also criticized California Democrats for effectively endorsing a legal strategy that could, in theory, be used to target any number of basic rights. “No worthy motive and no permissible goal can justify such a radical and dangerous assault on our constitutional structure,” the American Civil Liberties Union wrote in a letter condemning the bill earlier this year.

What’s next

California’s new gun law, which will go into effect in January, is expected to face swift legal challenges from gun rights groups that could eventually put the matter before the Supreme Court.

Another Texas law will ban nearly all abortions at the end of August now that Roe v. Wade has been overturned. S.B. 8 will remain on the books and could still be exercised in some circumstances, but its direct impact will be diminished once the even more restrictive ban is in place.

Perspectives

Supporters

The law is a political stunt, but it’s a smart, effective one

“It’s a good stunt, and if we understand it as just that — a stunt — then we can appreciate what Newsom is doing. He’s highlighting how the logic of SB 8 can be used by any state to circumvent constitutional rights and nullify federal law. It makes the SB 8 debate about something more than just abortion … and highlights how this issue goes to the very nature of law and federal power. You can’t use private bounty hunters to circumvent constitutional rights, or else the very concept of constitutional rights loses all meaning.” — Elie Mystal, The Nation

California is giving the court a chance to reverse the dangerous precedent set by S.B. 8

“States are now free to ban abortions the old-fashioned way — through laws that are enforced by police, prosecutors, and other state officials. There is, in other words, no good reason for [S.B. 8] to remain good law — even from the perspective of the anti-abortion movement — unless, of course, a majority of the justices want states to have the power to ignore the Constitution.” — Ian Millhiser, Vox

Newsom is showing a willingness to play hardball that other Democrats could learn from

“Newsom is goading his political adversaries in a way that’s unusual enough on the left that his fellow Democrats might take a minute to learn from the governor’s ‘own the rads’ approach, instead of seeing it solely as a sign of presidential ambition. It probably is that, too. But whether or not anything comes of that aspiration, he’s filling a need right now.” — Melinda Henneberger, Sacramento Bee

The approach isn’t ideal, but any method of reducing gun violence is worth pursuing

“Much as we detest the vigilante approach Texas devised to attack safe and legal abortions — and despise the Supreme Court’s blessing of that approach — we would be remiss if we were to decline the court’s invitation to use that same approach to protect the lives threatened by irresponsible firearms manufacture and sales. In this urgent moment, progressive defenders of human life need to play the hand they are dealt, not the hand they wish they held.” — Laurence H. Tribe, Jonathan M. Metzl and David Hogg, Boston Globe

There’s no guarantee the Supreme Court will throw out California’s new gun law

“Once challenged, courts should uphold the regulations as reasonable and consistent with the 2nd Amendment.” — Erwin Chemerinsky, Los Angeles Times

Critics

Citizen-enforced laws are a recipe for escalating vigilante justice

“If you care about a functioning democracy, you shouldn’t want to pit citizens against one another.” — Jake Charles, firearms law expert, to The Trace

The law won’t do much to reduce gun violence before it’s inevitably thrown out by the courts

“It seems that the effort is a gesture rather than a sincere attempt to adopt Texas’s vigilante model. … It’s doubtful that gunmakers will be significantly intimidated by this legislation, which is unlikely to survive the judicial review that has gutted most recent gun-control measures in the Golden State on Second Amendment grounds.” — Ed Kilgore, New York

The existence of S.B. 8 doesn’t give license to other states to play fast and loose with the Constitution

“Deputizing private citizens with no stake in a case to enforce the law is, as a rule, not a good idea. … But the notion that the Texas-abortion-law decision has created some sort of law-free zone by requiring these cases to be brought in court before they are ruled upon is hysterical nonsense.” — Dan McLaughlin, National Review

It’s dangerous for both political parties to be seeking ways to undermine the Constitution

“Thinking seriously about the underlying issues, this is a circumstance in which liberals should stand up for the Constitution, the rights it provides and the authority of the courts. Liberals are right to not like the Supreme Court’s decisions. But joining the conservative disrespect for law is a potentially disastrous strategy.” — Noah Feldman, Bloomberg

Newsom is wasting time and effort that should be put toward more substantive legislation

“All the attention Newsom has generated for the new law would be better directed toward building power for genuine change. Instead, Newsom is attempting to twist right-wing pretzel logic into a progressive purpose. This is dumb politics, and bad law.” — Alex Berke, Daily Beast

The law blatantly violates the Second Amendment

“California lawmakers just passed a law that will have an extraordinary chilling effect on Second Amendment rights — and it has received hardly any discussion. The state’s latest move should scare anyone concerned about protecting the constitutional right to keep and bear arms.” — Mark W. Smith, Reload

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