Experts: Newsom fired warning shot at Supreme Court with anti-gun pledge

SACRAMENTO, Calif. (CN) — Following a contentious Supreme Court ruling on abortion rights and only hours before the Sunday morning talk shows, California Governor Gavin Newsom launched a doozy of a trial balloon into the social media stratosphere this month.

In just four sentences penned to the press and Twitter late on a Saturday, Newsom engaged a pair of familiar enemies in the state of Texas and the gun lobby, as well an apparent new foe in the Supreme Court. The Democratic governor announced the state was prepping anti-gun legislation crafted after Texas’ six-week abortion ban that would grant residents the ability to sue individuals or businesses for selling assault weapons.

“SCOTUS is letting private citizens in Texas sue to stop abortion?!,” Newsom said on Twitter Dec. 11. “If Texas can ban abortion and endanger lives, California can ban deadly weapons of war and save lives.”

Newsom sold the plan as a crackdown on gun violence, but experts say the pledge is also clearly about sending a warning shot to the high court’s conservative majority and bolstering his national reputation in the process.

“It gets him attention no doubt,” says Wesley Hussey, associate professor of government at California State University, Sacramento. “It’s politically smart because it shows a combative Democrat willing to fight for the party’s key issues.”

Roiled by the Supreme Court’s recent decision to keep Texas’ near total-ban on abortions in effect while the overarching legal battle plays out, Newsom declared his office was working with lawmakers and Attorney General Rob Bonta on new copycat legislation. But instead of punishing abortion providers, Newsom wants to borrow Texas’ dubious legal technique and allow private citizens to sue anyone who manufactures, distributes or sells an assault weapon, ghost gun kit or parts in California for at least $10,000.

Senate Bill 8, also known as the Texas Heart Beat Act, went into effect Sept. 1 and has effectively banned all abortions in the Lone Star State. Passed by the GOP-controlled Texas Legislature and signed into law by Republican Governor Greg Abbott, SB 8 bans all abortions once a fetal heartbeat is detected, approximately six weeks. There are no exceptions to the law in cases of rape or incest.

The law is distinctive because it’s not enforced by the state, but by private individuals bringing a lawsuit against anyone who “aids and abets” in an abortion that occurs after six weeks. Critics say Texas has effectively created penalties for a federally recognized right and considering the high court’s stance, the door is now wide open for California and other states to adopt the approach.

“Newsom is the first from the more progressive, left-of-center wing to use the same logic,” said David Levine, University of California-Hastings law professor.

While he said replicating Texas’ law would be a “terrible, terrible road to go down” for California and the nation, Levine acknowledged a flood of copycat laws could ultimately pressure the Supreme Court to reverse course.

“If you ended up with a whole lot of these laws that would be infringing on rights conservatives might value, whether its guns or prayer or medical exemptions for vaccines, it might cause the Supreme Court to reconsider what’s a very bad decision,” said Levine.

There’s also the prospect of turning off voters with Newsom and California Democrats’ constant squabbling with red states. Newsom and Texas Governor Greg Abbott have already traded barbs over the assault weapons proposal and Newsom recently blasted Florida Governor Ron DeSantis' idea to let parents sue educators for teaching critical race theory as a dangerous precedent.

It remains unclear how California’s latest gun-control plan will take shape, but state lawmakers are already lining up to put Newsom’s demand to paper.

At least two prominent Democratic lawmakers have publicly committed to introducing legislation next month, while others have backed Newsom’s pitch on social media. Their proposals figure to find a soft landing spot in the Democrat-controlled Legislature, which has routinely enacted tough gun control measures over the decades.

“I’m stepping up to the plate and answering the call of the governor to introduce legislation now, as my first bill to kick off 2022, to get rid of ghost guns and assault weapons in California for good,” said Assembly Democratic Caucus chair Mike Gipson.

Phil Ting, chair of the Assembly Budget Committee, is also racing to introduce a proposal when the Legislature reconvenes.

“Almost every industry in the U.S. is held liable for what their products do, but the gun industry is not held to the same standard. I am working on legislation to change that, making it clear firearms manufacturers and dealers must follow California’s comprehensive gun laws or face civil liability,” the Democrat said in an email.

If Newsom and the Legislature decide to follow through, they might find a receptive audience: A 2021 statewide poll from the Public Policy Institute of California found 63% of likely voters supported tougher laws governing gun sales.

By jumping headfirst into the debate over Texas’ pioneering legal strategy, Newsom could also build on the national reputation he gained at the outset of the pandemic. After issuing some of the earliest and strictest lockdown orders of any state, a flood of good press followed, sparking rumors of a future presidential bid.

The luster of Newsom’s executive orders waned however and voter frustration triggered a statewide recall election. The former mayor of San Francisco brushed off the recall but in recent weeks has jumped back into the limelight through a spate of national TV appearances and now the threat of a Texas-style gambit to ban assault weapons.

The pledge may boost Newsom’s reputation nationally among Democrats, but there’s still a chance it may not play in-state, said Hussey.

Considering it’s an election year featuring brand new districts, Hussey suggested lawmakers might not want to rock the boat. By borrowing from Texas the very same strategy they condemned, California Democrats could come off as hypocritical to voters.

“I don’t know if there’s much of a push for Democrats to be clever this way to restrict gun rights,” said Hussey.

And questions remain about whether using Texas' approach would be effective to fight assault weapons in the Golden State. Leslie Jacobs, McGeorge School of Law professor, noted the overarching threat of Texas’ law is the $10,000 fine and resulting legal fees hovering over abortion providers’ heads. If California allowed a similar civil cause of action, plaintiffs would be facing a well-funded gun industry familiar with costly court battles.

Gregory Magarian, a professor at the Washington University in St. Louis School of Law, echoed Jacobs’ point and said Newsom’s main target is likely the Supreme Court.

“I doubt Newsom thinks this is going to be a really serious, effective way of limiting gun violence in California,” Magarian said.

The constitutional scholars also warned Newsom would be effectively greenlighting a new sort of state-sanctioned vigilantism among the residents of the nation’s most populous state.

“Do you really want private citizens reporting on each other and getting bounties? That’s an important policy decision,” Jacobs said.

And Second Amendment groups have already fired back. In a statement, the Firearms Policy Coalition responded: “If Gavin Newsom wants to play a game of constitutional chicken, we will prevail."

Newsom purportedly wants to mirror the Texas abortion law, but Jacobs said there is a glaring distinction between the two plans. Texas has targeted a constitutionally protected right in abortion, while California would be bolstering its existing assault weapons ban.

“Let’s be clear about this, the Texas Legislature is depriving citizens of its state purposefully of a constitutional right by having this threat,” Jacobs said. “There is no clearly established constitutional right to possess, sell or manufacture an assault weapon.”

Complicating matters are the various high-profile abortion and gun cases pending before the high court and underlying appeals courts. The upcoming decisions could weaken the impact of or render Texas’ law and California’s proposed plan essentially moot.

In the meantime, Texas and Newsom are openly building a formidable legal vehicle for other states to follow.

“It’s going to be a free-for-all against whatever rights the states please,” Magarian said.

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Experts: Newsom fired warning shot at Supreme Court with anti-gun pledge

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