American and California Flags outside of a government building Downtown San Diego on a sunny morning.
The California flag flies alongside the U.S. flag / Photo by Craig Marolf on Unsplash

Analysis: The Problem With California’s Performative Gun Legislation [Member Exclusive]

Just days after the Supreme Court declined to block the Texas law prohibiting abortions after six weeks, California Governor Gavin Newsom (D.) publicly threatened to mimic the novel enforcement mechanism to go after guns in his state. Now, a new bill advancing through the California Senate would do just that.

SB-1327 supplants its enforcement from government officials to private litigators as a tactic to trip up judicial interventions, just like the Texas abortion law. It would allow anyone in California to sue anyone else who “manufactures…, distributes, transports, imports into the state…, keeps for sale or offers or exposes for sale, or gives or lends any firearm lacking a serial number required by law, assault weapon, .50 BMG rifle, or firearm precursor part.” Like the Texas law, successful plaintiffs would be entitled to $10,000 in statutory damages for each weapon or precursor part.

The bill stands to vindicate the stark warnings of analysts and gun-rights groups alike, who suggested that Texas’s strategy would be replicated by other states looking to target guns. Last October, the Firearms Policy Coalition (FPC) filed an amicus brief with the Supreme Court urging it to consider the far-reaching implications for other constitutional protections.

“FPC is interested in this case because the approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation of enforcement to private litigants could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right,” the group said in its brief. “It is hardly speculation to suggest that 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.”

And the California bill’s proponents are arguing for exactly that.

“Will a lot of people sue? No. But once they do, it’s going to have a chilling effect,” California Senator Robert Hertzberg (D.), the bill’s primary sponsor, told The Washington Post.

The performative nature of the California bill cannot be overstated. Unlike the Texas law, which does not deal with any criminally prohibited conduct, the California bill would create a civil right of action for things that are already crimes. “Assault weapons,” .50 BMG rifles, and unserialized firearm precursor parts are already defined and regulated under California’s criminal codes, making civil enforcement redundant.

Furthermore, the bill specifically contains a provision that would invalidate itself if the Texas abortion law were to be repealed or struck down by either the US or Texas Supreme Court.

If the bill was truly being advanced to combat gun violence, one would think that its provisions would not be contingent upon the existence of an abortion law in a separate state.

A California Senate Judiciary Committee analysis of the bill highlighted the risks involved in participating in a tit for tat battle with red states over performative legislation.

“However, there is a risk that utilizing this model only legitimizes it further, which could have negative ramifications across the nation,” the analysis reads. “Already, Idaho has passed a law just weeks ago that essentially bans abortions after six weeks based on the Texas model.”

Yet the committee advanced the bill anyway with an overwhelming 8-1 vote. With the high-profile backing of the Governor, and with California being a state where Republicans are too weak to put up much of a fight on legislation, its chances of ultimately passing and becoming law are considerable.

Texas ultimately got the ball rolling by passing a novel abortion law with foreseeable nationwide consequences. Now, California is poised to apply it to guns as a symbolic middle finger to the Lone Star state. The federal courts, including the Supreme Court, have yet to act on discouraging this spiral.

Without judicial intervention or a detente among state legislatures currently using lawmaking as a proxy for the culture war, the fight could soon spill over to more states. Advocates on both sides would do well to keep that in consideration moving forward.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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