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California Gov. Gavin Newsom is going after gun manufacturers, and he’s using Texas’ playbook to do it.
On Saturday, Newsom, a Democrat and occasional critic of Republican Texas Gov. Greg Abbott, said he was working on a bill with the California Legislature and attorney general to allow private citizens to sue those who manufacture, distribute, or sell assault weapons or ghost gun kits.
His motivation? The U.S. Supreme Court’s Friday ruling on Texas’ restrictive abortion law.
Texas’ new abortion law, which effectively blocks the procedure after about six weeks into a pregnancy, relies on private citizens rather than state officials to enforce it by suing other individuals and abortion providers. The law’s unique enforcement mechanism has come under intense scrutiny, raising concerns that it could be replicated to diminish other constitutional rights including gun ownership, religious freedom, same-sex marriage and freedom of speech.
“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,” Newsom said in a statement.
The Supreme Court on Friday did not block Texas’ law, but ruled that legal challenges to the law could continue to move forward.
State Sen. Bryan Hughes, R-Mineola, who wrote the law, was dismissive of Newsom’s effort to restrict gun rights by using Hughes’ law as a roadmap. He said he didn’t think his enforcement mechanism would be “effective against firmly established constitutional rights.”
“I would tell Gov. Newsom good luck with that,” Hughes said Monday. “If California takes that route, they’ll find that California gun owners will violate the law knowing that they’ll be sued and knowing that the Supreme Court has their back because the right to keep and bear arms is clearly in the Constitution, and the courts have clearly and consistently upheld it.”
That interpretation is at odds with what Texas Solicitor General Judd Stone told Justice Brett Kavanaugh on Nov. 1, when asked about whether the Texas legal mechanism could be used to restrict other rights.
“Say everyone who sells an AR-15 is liable for a million dollars to any citizen. ... Would that kind of law be exempt from pre-enforcement review in federal court?” Kavanaugh asked Stone during oral arguments of the Supreme Court’s consideration of the Texas law.
Stone answered it would, unless Congress modified federal courts’ jurisdiction to do so.
Asked for comment on Newsom’s announcement, Abbott’s office provided a statement that did not address the underlying legal argument but touted Abbott’s record on gun rights. Abbott spokesperson Renae Eze said Texas “has been, and always will be, the leader in defending the Second Amendment.”
Mark Lee Dickson, director of Right to Life of East Texas, said he was unfazed by California using Texas’ law as a roadmap to restrict guns, adding that he thinks such policies would drive people out of the state.
Dickson is a key anti-abortion activist who has helped more than 40 towns across the country pass ordinances banning abortion using the private litigation enforcement mechanism used in the state abortion law.
“You know, I think that’s fine,” Dickson said, adding that states can pass laws that suit them. “If there are people here who really don’t like the abortion ban enough to move out of Texas, then maybe California is best for them. This is something all across our nation, if you don’t like something, you can leave.”
Gun rights advocates predicted for months that firearm restrictions would be targeted next if the Texas law was allowed to stand.
In October, a gun rights group, the California-based Firearms Policy Coalition, filed a legal brief siding with abortion providers, arguing that Texas’ enforcement mechanism, which shields the state law from judicial review before a suit is filed, could allow other states to use the same tactic to limit gun access.
Erik S. Jaffe, a lawyer for the coalition, said Newsom’s announcement was no surprise.
“Rain is wet. Big cars use more gas than small cars,” he said. “It wasn’t like the prediction was that hard to make.”
Last week, Jaffe said he expected states “hostile to firearms” to introduce such laws. “Every bad idea has copycats,” he said.
Although he’d have to wait to hear from his client, he said he would “find it very hard to imagine” that the organization wouldn’t sue over any proposed law.
Newsom shared his plan just days after Justice Sonia Sotomayor warned against such copycat laws in her Supreme Court opinion over Texas’ abortion law.
“By blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment,” Sotomayor wrote in Friday’s opinion. “The Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree. This is no hypothetical. New permutations of S. B. 8 are coming.”