Newsom's silly gun bill sets a bad precedent

Before the U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, returning the power to decide abortion law to the states, Texas found a way to restrict abortion by enacting a law that courts would not be able to block because no government entity was involved in enforcing it.

Texas Senate Bill 8 created a right to sue anyone who aided or abetted an abortion after about six weeks of pregnancy, from the staff of a clinic to the ride-share driver who picked up a patient. Private parties who filed lawsuits could collect a “bounty” of $10,000 plus attorney fees.

That was enough to cause many clinics in Texas to close rather than risk the financial liability.

When the U.S. Supreme Court said last year that it would not immediately prevent SB 8 from going into effect, legal experts pointed out that the Texas scheme could also be applied to shut down other constitutional rights that were unpopular in some quarters, such as the Second Amendment right to keep and bear arms.

Gov. Gavin Newsom jumped at the chance.

The result is California Senate Bill 1327, recently signed into law by the eager governor. SB 1327 creates a private right of action that allows Californians to sue any person or entity that makes, sells, transports or distributes illegal “assault weapons” or “ghost guns,” or anyone who sells firearms to someone younger than 21 years old, for $10,000 in damages plus attorney fees.

The idea is to create risk and liability for gun dealers while evading judicial review of the law. It may not work as intended, especially after the U.S. Supreme Court's recent ruling in New York State Rifle & Pistol Association vs. Bruen. In that case, the justices set a tougher standard for state laws that attempt to limit Second Amendment rights.

However, Newsom took out full-page ads in Texas newspapers to brag about the law and the cleverness of adapting Texas' trick to limit abortion rights into California's trick to limit gun rights.

It's all too clever by half. Using the same formula, a state could ban the publication of information that's contrary to government-approved information, make the law enforceable only by private legal actions, and intimidate media companies out of publishing anything that contradicts a government official's pronouncements.

It's dangerous to try to limit constitutional rights through laws that enable lawsuits seeking cash bounties. The American Civil Liberties Union, which opposed SB 1327, said by enacting this law, “California will be promoting a legal end-run that can be used by any state to deny people an effective means to have their constitutional rights protected by the courts.” The ACLU predicted that California's “endorsement” of this method would lead to an “arms race” of curtailing constitutional rights.

The Supreme Court indicated that the Texas SB 8 ploy would eventually be decided on the merits, so the court's decision to to block it from going into effect is not the last word on the subject. It's also possible that state courts could hear pre-enforcement challenges to laws of this type, even though federal courts might decline to accept them.

But legal action is slow and costly. It's simply wrong for elected officials to play grandstanding political games that force citizens to defend against private lawsuits or challenge flawed laws in court to vindicate their constitutional rights.