Portside

There are few hopes in Washington that Congress will pass any significant legislation on gun control in the wake of this week’s massacre at an elementary school in Uvalde, Texas. That vacuum is instead being filled by Democratic-led states as they once again try to curb gun violence and mass shootings after the latest tragedy.

One of the most interesting proposals comes from California—and it has a familiar ring to it. Senate Bill 1327, which was passed by the California Senate on Wednesday, adopts the same approach to circumventing the Second Amendment that Texas pioneered to outflank Roe v. Wade. If enacted, the bill would create a private right of action that would allow Californians to sue anyone who illegally brings an assault weapon, or any part used to create one, into the state. Those who file the lawsuit are entitled to $10,000 in damages if they succeed.

Whether California’s bounty-style law will have the same chilling effect as Texas’s anti-abortion law did remains to be seen. Even if it fails to stop massacres, however, it could have a very useful ancillary purpose: goading the Supreme Court into shutting down bounty-style laws once and for all.

The bill’s central provision states that “no person within this state may manufacture or cause to be manufactured, distribute, transport, or import into the state, or cause to be distributed, transported, or imported into the state, keep for sale, offer or expose for sale, or give or lend, any assault weapon, .50 BMG rifle, or unserialized firearm” or any precursor part to build one in California. There are some exceptions, most notably for the U.S. Olympic sport shooting team, as well as for antique weapons and some models used by law enforcement agencies.

“Assault weapon” is a vague and nebulous term, so almost half of the bill is devoted to defining the models and characteristics that it would cover. The language mirrors that of California’s general assault-weapons ban, which is enforced by state officials instead of private citizens. Senate Bill 1327 doubles as a fallback option to preserve that ban in some form if the courts strike it down, reflecting the interplay between Texas’s direct attacks on abortion access and bounty-style laws that try to find a way around a federal court injunction.

Last year, a federal district court judge ruled that the existing ban violated the Second Amendment and argued that the types of guns affected by that law are often used for legal purposes. “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment,” Judge Roger Benitez wrote in his 94-page opinion. That case, Miller v. Bonta, is currently pending before the Ninth Circuit Court of Appeals. Though the Ninth Circuit long had a reputation as one of the most liberal appellate benches in the country, it has found itself sharply divided on California’s strict firearm laws in recent years after multiple Trump-appointed judges joined the court.

The Supreme Court narrowly declined to strike down bounty-style laws at first glance last December in Whole Woman’s Health v. Jackson. In a fractured decision, the court held that a lawsuit by an abortion clinic in Texas could not proceed against a wide variety of Texas officials, with the lone exception of certain state public health officials who have some duties under Senate Bill 8 if one of the lawsuits succeeds. Though unanimous on that part and keeping the lawsuit technically alive in one small way, the court sharply diverged on the rest of the statute.

At least four of the justices—Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—said they would have gone further to curb Texas’s bounty law instead of rewarding its success. “The clear purpose and actual effect of S B 8 has been to nullify this Court’s rulings,” Roberts, who rarely authors strident opinions, wrote in a concurring opinion that dissented from much of the court’s ruling. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

As Texas’s law showed, bounty-style laws exploit a previous unused flaw in federal civil rights laws. Under a provision known as Section 1983, anyone who suffered from violations of their federal constitutional rights at the hands of state and local officials can generally bring a lawsuit against them in the federal courts for relief. To circumvent Section 1983, Texas allowed private citizens to bring onerous lawsuits against anyone who “aids or abets” an abortion, while explicitly forbidding public officials from launching them. Section 1983 does not generally apply to deprivations of rights by private citizens.

In a theoretical sense, it is possible that the Supreme Court could overturn the Texas law in question after further proceedings take place. But that moment will almost certainly never come. The lawsuit against S.B. 8 is predicated on the existence of a federal constitutional right to obtain an abortion. A leaked draft opinion in Dobbs v. Jackson Women’s Health Organization by Justice Samuel Alito that became public earlier this month showed that five of the justices have voted to overturn Roe v. Wade and hold that there is no constitutional right to obtain an abortion. In addition to the broader societal effects, that ruling would likely eliminate the basis for legal challenges to S.B. 8 in federal court when it is officially released in the next few weeks.

California’s Senate Bill 1327 would give the courts—and the Supreme Court in particular—another bite of this poisoned apple, so to speak. S.B. 1327 is an unambiguous effort to evade federal civil rights laws and functionally prevent what the state legislature sees as the potential overturning of its assault-weapons ban. While S.B. 8 involved a right that is clearly disfavored by a majority of the justices, S.B. 1327 targets one that they have recently shown greater interest in protecting. If California passes it into law, the justices may eventually have to choose between letting the states hollow out constitutional rights through procedural trickery or recognizing that they made a mistake in the Jackson ruling last winter. Hopefully they make a better decision the second time around.

Matt Ford is a staff writer at The New Republic.

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