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Op-Ed: Newsom’s riff on the Texas abortion law is less radical than it sounds

Gavin Newsom speaks at a lectern.
Gov. Gavin Newsom’s idea may be workable, but it won’t force the courts to see how overreaching the Texas abortion law is.
(Associated Press)
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On Saturday night, Gov. Gavin Newsom announced that turnabout is fair play. Invoking the Supreme Court’s decision last Friday to let SB 8, Texas’ vigilante abortion ban, stand, Newsom called for the California Legislature to enact a similar law that would allow private citizens to enforce limits on gun rights.

His proposal would give private actors the right to sue for $10,000 anyone “who manufactures, distributes, or sells an assault weapon or ‘ghost gun’ kit or parts in the State of California.” Despite the surface similarity between Texas’ scheme and Newsom’s proposed statute, there’s less to the analogy than many observers think.

Though Newsom’s proposal invoked Texas law, which bans abortion after six weeks, the bill he seeks would look almost nothing like it. The two provisions that made SB 8 so harmful — direct contradiction of a constitutional right and a scheme in which private citizens, in the place of state officials, enforce an unconstitutional ban — are missing from the Newsom plan.

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First, Newsom’s proposal does not directly contradict what the Supreme Court or the majority of federal courts have said about the 2nd Amendment. In its only substantive ruling on the 2nd Amendment to date, the Supreme Court held in District of Columbia v. Heller that the amendment protects the right to keep a handgun in the home for self-defense. The court said nothing about assault weapons or ghost guns, which are intended to be untraceable.

Seven states and the District of Columbia currently ban some firearms classified as assault weapons, and every federal appellate court to address the question has upheld these bans as permissible under the 2nd Amendment.

No federal appellate court has struck down a law barring ghost guns. In short, the Newsom proposal — unlike the Texas law — would not outlaw conduct clearly protected by the federal courts’ reading of the Constitution.

Second, a potential bill, as suggested in Newsom’s statement, would not seek to prevent government officials from enforcing the gun laws, even if it gave private citizens the right to sue too. This is a crucial distinction from the Texas law, which was written to make private citizens the only enforcers. Moreover, California law already regulates assault weapons and ghost guns, and compliance is monitored by the government, not neighbors.

The Newsom proposal says nothing about eliminating government supervision of gun sales or manufacturing under those existing laws — which means people who oppose those gun restrictions can and will sue public officials. In fact, gun advocates have already sued officials in California, and those lawsuits will continue unimpeded. Unlike the Texas law, Newsom’s proposal would not offer an end run around government actors.

If Democrats really wanted to show the Supreme Court the full implications of its ruling on the Texas scheme, they would have to enact a law directly flouting the right to keep a gun in the home (as the Heller case declared) or perhaps enact a complete ban on the sale or carrying of all firearms — and allow only private citizens to sue anyone who kept a gun in the house or sold or carried firearms.

This is the scenario that would be the equivalent of what Texas has done with abortion rights. Newsom’s idea wouldn’t come close in mirroring it, which shows how tepid his suggestion is compared with how extreme the Republican attack on a constitutional right has become.

The question is whether Newsom or other Democrats are willing to go to the lengths needed to test the Supreme Court’s alarming new precedent.

Jake Charles is a lecturing fellow at Duke University School of Law and executive director of the Duke Center for Firearms Law. @JacobCharlesNC


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