On July 22, California enacted SB 1327– gun legislation explicitly modeled after Texas’ controversial “fetal heartbeat” abortion bill (SB 8) which is executed exclusively by private actions.
California Governor Gavin Newsom (D) Overview the law last December, after a majority of the Supreme Court of the United States largely agreed with Texas that its law prevented federal pre-enforcement lawsuits against state officials because they lacked the authority to enforce SB 8 (except certain members of the licensing board ).
Although California law mimics the enforcement mechanism of SB 8, it is not the identical twin that it appears to be.
New gun control law
In substance, California law is simple: it prohibits the manufacture and distribution of assault weapons and firearms without serial numbers; the sale or transfer of “ghost gun” components; and the sale of firearms to anyone under the age of 21 (with limited exceptions).
The law is notable because it explicitly excludes enforcement by state and local governments. SB 1327 is enforced only by individuals through civil suits alleging that someone has knowingly violated its provisions.
Private plaintiffs benefit from favorable procedural rules regarding standing, affirmative defenses and attorney fees. Prevailing plaintiffs will recover a minimum of $10,000 in statutory damages.
In theory, the California law is designed to operate like SB 8: although prohibited behavior may be protected by the Second Amendment, the law is structured to prevent pre-trial federal challenges to its constitutionality against state officials. , a normal means of asserting constitutional rights.
Instead, because the law is enforced only through private litigation, individuals cannot challenge the law in federal court without waiting to be sued and invoke constitutional protections as a defense (they could be able to sue in state court, although they may also be concerned that state court judges are less likely to be receptive to such defenses).
The risk of being sued in a plaintiff-friendly framework may deter individuals from challenging the law in the first place. For example, abortion providers in Texas decreases to provide abortions after six weeks (when a fetal heart rate is detected) for fear of being sued under SB 8, even before the Supreme Court reverses Roe vs. Wade in Dobbs.
Differences from the Texas anti-abortion bill
One of the main differences between SB 1327 and its Texas counterpart is that, despite the recent Supreme Court decision in Brown, the law (or large parts of it) may still be constitutional. SB 8 was adopted while roe deer and Casey were of good law.
By banning virtually all abortions after six weeks, the Texas law violated the right to abortion pre-viability that existed under Supreme Court precedent. California law does not prohibit the possession of firearms, only the manufacture, sale or transfer of certain weapons and to certain groups.
Brown did not mark the end of all gun regulations; for example, the outfit must not disturb Heller’s directive that “conditions and qualifications relating to the commercial sale of arms” are presumed legal. And Brown did not shed additional light on the types of firearms protected by the Second Amendment.
While some (including Judge Clarence Thomas) believe that “AR type semi-automatic rifles” are commonly used for lawful purposes and therefore protected, what about ghost guns? Do trade restrictions on the sale of these weapons prevent responsible, law-abiding citizens from defending themselves? If driving is protected, are these provisions “consistent with the nation’s historical tradition of firearms regulation”?
To take ghost guns as an example, there is little debate that serialization helps law enforcement trace firearms used in crimes and no federal appeals court has struck down a ban. phantom weapons. However, some argue that the historical lack of regulation of self-made firearms supports the right to own modern phantom guns in one form or another.
These are unresolved questions.
Unlike SB 8, California law operates at the margins of constitutional law. It also works alongside broader criminal prohibitions under state law, such as California’s. ban on assault weapons and laws criminalize the unauthorized transfer of ghost weapons, some of which have been challenged in federal court.
The direct analogue of SB 8 would presumably be a law prohibiting all possession of handguns – clearly unconstitutional, but perhaps not subject to direct federal challenge after Overall Women’s Health if it is only applied in the context of a private dispute.
On the one hand, California law may be more likely to deter some gun transfers and sales – because it’s not clear that a defendant would prevail invoking the Second Amendment, it’s quite risky to invite lawsuits within its plaintiff-friendly framework.
On the other hand, one could view SB 1327 as a tit-for-tat game that gets no real results. This conduct is already criminalized in California, and the law continues a disturbing trend of states using private enforcement to circumvent federal courts — which both the ACLU and Gun Policy Coalition have criticized.
The Supreme Court ultimately did not rule on the merits of the SB 8 enforcement mechanism, and Texas prohibition of the “trigger” of abortion—a general prohibition which takes effect automatically after a reversal of the decision roe deer—comes into force on August 25. We are unlikely to see future legal challenges to SB 8 because the constitutional defense that abortion providers would have claimed is no longer available.
The Texas scheme was successful: It deterred abortions protected by Supreme Court precedent until that protection was lifted and abortions could be criminalized. But commentators have identified other ways states could use this model to eliminate conduct protected by the Constitution.
California’s gun law increases the chance that the Supreme Court will provide much-needed substantive guidance on the extent to which states can use the private plaintiff enforcement mechanism to circumvent federal judicial review.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Andre Willinger is the executive director of the Duke Center for Firearms Law. Prior to joining the center in June 2022, he practiced civil litigation at Patterson Belknap Webb & Tyler LLP in New York.