Well, we can’t say we weren’t warned.
In keeping a promise he made last year, California Gov. Gavin Newsom just signed a bill modeled on the Texas Heartbeat Law. Their unique feature? Both laws seek to evade pre-enforcement judicial review by eliminating the power of state officials to enforce the law. Both the California and Texas laws can only be enforced by “private civil actions” seeking damages, and not by the public officials normally tasked with enforcing state and federal law.
While the Texas law is designed to prevent abortions, the California law instead takes aim at gun ownership.
California’s law allows people to sue anyone who distributes so-called assault weapons (particular models of pistols, shotguns, and rifles defined in section 22949.61 (b) of the law), parts that can be used to build weapons, guns without serial numbers, or .50-caliber rifles. The law declares it is illegal to “purchase, sell, offer to sell, or transfer ownership of any firearm precursor part in this state that is not a federally regulated firearm precursor part.”
Under this new law, private citizens in the state of California can file lawsuits against those who violate the act and recover up to $10,000 per violation.
Here’s how it normally works.
Ordinarily, parties who are potentially adversely affected by a new law and believe that it is unconstitutional will file a lawsuit, seeking to enjoin officials from enforcing the law—thereby preventing it from taking effect—while its constitutionality is litigated. That’s what happened in Dobbs v. Jackson Women’s Health Organization—before the Supreme Court ultimately reached its decision overturning Roe v. Wade and upholding the constitutionality of Mississippi’s law.
But prior to Dobbs, in Whole Woman’s Health v. Jackson, a case involving the Texas Heartbeat Law, abortion providers filed a pre-enforcement challenge to prevent state courts from handling any private civil actions to enforce the Texas abortion ban.
The case was fast-tracked to the Supreme Court which decided, based on sovereign immunity and the inability of state officials to enforce the law under the terms of law, that the case against most of the named defendants (with the sole exception being some licensing officials) should be dismissed. The court did not address the underlying constitutionality of the law, leaving that to the lower courts to decide if and when any private lawsuits were filed once the law went into effect.
In fact, in its earlier order denying the petitioners’ application for injunctive relief, the five conservative justices in Whole Woman’s Health commented, “[T]his order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
A few months after the Supreme Court issued its decision in Whole Woman’s Health, Idaho became the first state to adopt a copycat law. It went even further, allowing the family of the “preborn child” to sue the abortion provider, establishing a reward of at least $20,000 plus legal fees and allowing lawsuits against providers for up to four years after an abortion. Oklahoma followed suit, enacting its own civil-enforcement heartbeat law.
So far, the Texas heartbeat law has flummoxed opponents because of its unique enforcement mechanism. Despite multiple legal challenges (including three trips to the Supreme Court), it has been in effect since Sept. 1. Newsom is no doubt hoping for the same result in California.
Assuming the California law does, in fact, shield any and all state officials from the power to enforce it (leaving no procedural questions regarding state actors, as Whole Woman’s Health did), then the law would be insulated from any pre-enforcement challenge. A challenger to the law would then have only one option: let the law go into effect, subject themselves to a private party’s lawsuit, and then raise as an affirmative defense the constitutionality of the law itself.
And that’s where California may have failed.
While the procedural mechanism of using private citizens to keep the law out of court before it goes into effect is the same in both laws, the underlying conduct is not. And any challenger to the law after its enforcement is likely to succeed for that reason.
The two laws are critically different, as evidenced by two seminal opinions from the recently completed term: the right to keep and bear arms is a constitutional one, rooted in the Second Amendment; the right to obtain an abortion, on the other hand, is not a constitutional right.
In Dobbs v. Jackson Women’s Health Organization the Supreme Court held that its longstanding precedent Roe v. Wade—a decision that manufactured a purported right to abortion in the Constitution—was “egregiously wrong,” and then overturned it. But in New York State Rifle and Pistol Association v. Bruen, the Supreme Court held that New York’s “proper-cause” handgun requirement prevented citizens from exercising their Second Amendment right to keep and bear arms in public.
Texas State Sen. Bryan Hughes, a Republican, the author of the Texas heartbeat law, pointed out this distinction when the California governor made the promise to pass a citizen-enforced handgun law:
I would tell Gov. Newsom good luck with that. 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.
The Supreme Court’s ruling in Whole Woman’s Health addressed only procedural questions surrounding the Texas Heartbeat Act—including an inquiry into whether state licensing officials would have the power to enforce the law, regardless of its delegation to private citizens. Had Texas excluded every state official that could enforce the law and in that way, prevented it from being challenged before enforcement? That, the Supreme Court determined, was a question for the Texas Supreme Court.
But if California has met all its procedural burdens—a court could go right to the heart of the constitutional issue in assessing the California law if challenged. Two questions arise. First, can a State insulate itself from federal court review of a state law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce it?
The left-leaning ACLU seems to think it cannot, calling California’s law “an attack on the constitution” for deliberately trying to sidestep judicial review by empowering enforcement by citizens and not government actors, and for undermining due process rights. But assuming this kind of regime is constitutional, the second question would then be is the gun restriction itself constitutional?
These will be questions for the courts. But a recent case might provide a hint on the answer to the second one.
California has already struggled with its weapons ban efforts. Just a few days ago, in its second ruling on California gun laws in a week, the Supreme Court ordered a lower court to revisit its previous ruling upholding the state’s ban on high-capacity gun magazines. While the ban had been upheld in 2021 by the U.S. Circuit Court of Appeals for the 9th Circuit, the high court ordered the 9th Circuit to revisit that decision, this time, applying its rationale in New York Rifle v. Bruen.
That means that in analyzing the constitutionality of the weapons ban after enforcement, the reviewing court must examine whether California’s law is consistent with both the text of the Second Amendment, and the history of gun regulations. Whether it can do so remains to be seen, but it is highly doubtful.
At least for now, by “chilling” the ability of gun manufacturers, sellers, and distributors in California to buy and sell these weapons, the state of California has found a way to prevent a court from even getting to that point—that is, unless a gun seller is willing to accept facing a lawsuit and potential damages of $10,000 per violation in the hopes of having the law ruled unconstitutional in the end.
At the very least, Newsom and crew’s gun law is a master class in political grandstanding. In fact, Section 22949.71 of the California law explicitly references the Texas heartbeat law, flagging a possible battle royale at the Supreme Court if a lower court decides that such a civil enforcement mechanism is itself unconstitutional—no matter the purpose of the law, or prohibited conduct:
This chapter shall become inoperative upon invalidation of Subchapter H … of Chapter 171 of the Texas Health and Safety Code in its entirety by a final decision of the United States Supreme Court or Texas Supreme Court, and is repealed on January 1 of the following year.
By incorporating a “we’ll invalidate ours, if a court invalidates yours” provision, Newsom is proving that it’s not really about saving lives, as he’s claimed, but about sticking it to pro-life lawmakers. The Democratic state senator who carried the California bill, Robert Hertzberg, said as much: “It’s all about these two big issues that are facing us. And you can’t have a double standard. You can’t have one standard for guns and another standard for women’s reproductive health. It’s not right.”
When questioned about the new law, Newsom had strong words.
“We’re sick and tired of being on the defense in this movement,” Newsom said. “It’s time to put them on the defense. You cannot sell, you cannot manufacture, you cannot transfer these illegal weapons of war and mass destruction in the state of California. And if you do, there are 40 million people that can collect $10,000 from you, and attorney fees, for engaging in that illegal activity.”
Now, with yet another attempt at advancing his gun control agenda, Newsom may have won the day, but could have just set himself up for a constitutional challenge down the road. After New York Rifle, Whole Woman’s Health, and Dobbs, California’s civil enforcement law’s viability is anything but certain.
This piece originally appeared in The Daily Signal