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California Turns Texas’s Vigilante Tactics on Gunmakers

Intelligencer logo Intelligencer 2/22/2022 Ed Kilgore
Newsom scores some messaging points. Allen J. Schaben/Los Angeles Times via Getty Images © Allen J. Schaben/Los Angeles Times via Getty Images Newsom scores some messaging points. Allen J. Schaben/Los Angeles Times via Getty Images

Since Texas Republicans succeeded (at least temporarily) in enacting a strict abortion ban enforced by incentivizing citizens to sue each other rather than law-enforcement officials, nearly three dozen copycat laws have been introduced across the country, according to the Washington Post. It’s not just Republicans proposing vigilante legislation, though many of the Democrats behind these bills say they’re still philosophically opposed to the tactic. California Democrats, led by Governor Gavin Newsom, are a prime example. Last week, they announced legislation modeled on the Texas abortion law that will similarly give bonuses to private citizens who sue gun manufacturers allegedly violating the state’s strong firearms laws. But it seems that the effort is a gesture rather than a sincere attempt to adopt Texas’s vigilante model.

According to the bill’s principal author, state senator Bob Hertzberg, it will “apply to those who manufacture, distribute, transport, import into California, or sell assault weapons, .50 BMG rifles, ghost guns [weapons assembled at home with no serial numbers] or ghost gun kits” and “would let people seek a court order to stop the spread of these weapons and recover up to $10,000 in damages for each weapon, plus attorney’s fees.”

All but chortling, Newsom said the law, if enacted, may convince the U.S. Supreme Court “to reconsider the absurdity of their previous decision” in allowing the Texas law to take effect.

It’s doubtful that gunmakers will be significantly intimidated by this legislation, which is unlikely to survive the judicial review that has gutted most recent gun-control measures in the Golden State on Second Amendment grounds. But gun-rights advocates, who thrive on paranoia, are professing worry, according to AP:

“If Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms,” attorney Erik Jaffe wrote in a legal brief on behalf of the Firearms Policy Coalition, a nonprofit group that advocates for gun rights.

The group also claimed that such restrictions are “really just modern-day Jim Crow laws designed to suppress the exercise of human rights the tyrants who run California don’t like.” Obviously, it doesn’t entirely follow that threatening to enforce gun laws is like denying Black people the right to vote or access to public facilities and private business services.


Video: California bill would allow citizens to enforce weapons ban (Associated Press)

One underlying assumption of some of the gun bill’s backers is technically inaccurate: The U.S. Supreme Court has not fully approved the Texas law. It simply denied an emergency petition to stop its enforcement while litigation continued, and then approved a Fifth Circuit ruling that forced challenges to the law to proceed through state courts before full federal review. In effect, the Court has made sure it does not have to adjudge the Texas abortion law on the merits until after it has delivered a decision on the constitutionality of pre-viability abortion bans in Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s direct challenge to Roe v. Wade.

By then, of course, the Supreme Court may no longer recognize a federal constitutional right to an abortion, which would make the idea of the Texas law representing an “undue burden” on that right completely moot. If so, the Court might also reject the idea that those affected by the Texas law are in any way analogous to Californians exercising Second Amendment rights that are not in any danger of losing judicial recognition.

So the Newsom-Hertzberg bill is really just a messaging measure. As The Nation commented, California Democrats have “done what tons of progressives want elected Democrats to start doing: fight like Republicans.”

But in the courts, it’s the Republicans who will likely win the next round.

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