California Gov. Gavin Newsom (D) is now looking to use the anti-abortion Texas Heartbeat Act as a model for gun control legislation.
“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 on Saturday.
“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,” Newsom added.
Newsom’s announcement comes after the U.S. Supreme Court’s recent decision on Friday regarding the Texas Heartbeat Act. While the court allowed the legal challenges to this legislation to proceed, it also ruled that the act can remain in effect during its litigation.
For those unfamiliar with the Texas Heartbeat Act, as its name suggests, it bans abortions once a fetal heartbeat can be detected, which is at, roughly, the six-week mark of the pregnancy. It is far from being the first legislation of its kind, yet, unlike its predecessors, it has been withstanding legal challenges, at least the preliminary ones that have been decided thus far.
What makes the Texas Heartbeat Act unique is that it puts enforcement in the hands of the people of Texas. Any resident can sue, for a minimum of $10,000, anyone who in any way furthers an abortion.
Critics, such as Newsom, have argued that this mechanism has allowed Texas to bypass existing abortion rules, developed in Roe v. Wade and Planned Parenthood v. Casey, by taking liability away from the state, thereby shielding the Texas Heartbeat Act from the usual legal challenges.
Now, Newsom wants to use this same mechanism, of putting enforcement in the hands of the people, to enact gun control legislation in California.
“I have directed my staff to work with the Legislature and the Attorney General on a bill that would create a right of action allowing private citizens to seek injunctive relief, and statutory damages of at least $10,000 per violation plus costs and attorney’s fees, against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California,” Newsome wrote.
The big question is whether it would work. And, legal scholar Johnathan Turley doesn’t believe it would.
According to Turley, “The problem is multifold.” He writes:
First, the Texas law was quickly found to be unconstitutional by the district court, as would the California law . . .
Second, the Supreme Court just allowed pre-enforcement challenges so the California law could be challenged to avoid any “chilling effect” on gun rights . . .
Third, and most importantly, Newsom limited the law to gun manufactures, distributors, and sellers” to the exclusion of a wider array of purchasers or “aiders and abetters.” The Texas law was so menacing because it exposed such a wide array of people to potential lawsuit. It would not be quite as popular to go after gun owners or gun rights groups. Yet, Newsom is targeting business which are going to be less intimidated by such litigation costs in a law that would be clearly unconstitutional.
So, if Turley is right, the good news is that Newsom’s plan wouldn’t work. But, the bad news is that, then Texas’s Heartbeat Act also won’t survive the legal challenge that it is facing. We’ll see. The Supreme Court, let’s not forget, may still overturn Roe and Casey in Dobbs v. Jackson Women’s Health.