A new gun control bill unveiled by several California Democrats this week promises to allow private citizens to sue gun makers and sellers and hold them accountable for the acts of criminals, but according to attorney Erik Jaffe, the measure doesn’t go as far as Gov. Gavin Newsom has previously demanded… at least for the moment.
Newsom, you’ll recall, has vowed to craft a gun control version of the anti-abortion law that recently took effect in Texas that empowers private citizens to sue abortion providers if they have evidence that pregnancies are being terminated after six weeks. Even before Newsom made his intentions known, however, some Second Amendment activists were warning that the anti-abortion law could have unintended consequences for gun owners.
In fact, it was Jaffe who wrote the amicus brief filed by the Firearms Policy Coalition in opposition to the Texas law, arguing that the way the law was written chills the exercise of a right without any opportunity for redress in the courts. From the brief:
If Texas’s scheme for postponing or evading federal judicial review is successful here, it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights. New York is already experimenting with private enforcement of anti-gun laws and will no doubt gladly incorporate the lessons of this case to insulate its future efforts to suppress the right to keep and bear arms. Other States will not be far behind.
Indeed, a private bounty scheme could easily be modified to target persons who marry someone of the “wrong” sex or color, criticize the government, refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues, or engage in any other protected but disfavored conduct. And, if Texas’s avoidance of pre-enforcement review succeeds, there is no reason to think the deterring penalties couldn’t be made even more draconian. The precedent this law sets as a model for deterring the exercise of any and all rights amply illustrates why it is impermissible.
As Jaffe noted in his amicus brief, New York’s “experiment” with private enforcement of its gun control regime is already underway, and since the brief was filed California’s now followed suit in at least introducing similar legislation. But Jaffe tells Bearing Arms’ Cam & Co that while the legislation proposed by Democrats this week may be similar in its intent to chill the exercise of a right, AB 1594 in California (and its New York analogue already enshrined in law) are different from the Texas law in a couple of key respects.
The abortion law in Texas, for instance, has no mechanism for the state to pursue legal challenges against abortion providers. Instead, enforcement is left solely to private actors. The New York law allowing citizens to sue gun makers and gun sellers under the state’s public nuisance statute, on the other hand, also allows for the state Attorney General to bring suit against industry members. That, in turn, makes it possible to sue the AG over the enforcement of the law; a step that the National Shooting Sports Foundation and more than a dozen companies in the firearms industry took just a few weeks ago.
For now, the legislation introduced in California also allows the state’s AG to pursue civil suits against gun makers, distributors, and retailers. That doesn’t make the bill any less of an infringement on our Second Amendment rights, but it at least leaves the door open for a court challenge.
Of course, the key phrase is “for now.” AB 1594 has just been introduced, and as bad as the bill is now, there will be plenty of opportunities for it to get even worse. And given that Newsom’s made it clear that he wants a law that mirrors Texas’ as much as possible (albeit dealing with guns instead of abortion), it’s almost certain that the initial language of AB 1594 is going to be amended as it makes its way through committees and on to the Assembly floor.
Will the courts resolve the dispute over private enforcement of state law before Newsom has a chance to put pen to paper? Possibly, though it’s not likely. There are several pending cases surrounding the law in Texas, including a doctor who’s been sued for conducting an abortion and is seeking to have the law declared unconstitutional, but it could be years before that case is finally settled. In the meantime, Jaffe warns that gun owners and Second Amendment activists are likely going to see more blue states taking a page from Texas and empowering private bounties for violations of state-level gun laws.