California Governor Gavin Newsom, who recently only narrowly avoided being recalled, has undergone a dramatic shift in his position on the Texas abortion law that the Supreme Court recently left in place while challenges to it proceed. His previous stance boiled down to saying, ‘you can’t pass a law like that! You’re violating everyone’s rights.’ Then, seemingly overnight, he has shifted gears to declare, ‘we’ll show you. I’m gonna pass a bunch of laws just like that!’
Of course, Newsom isn’t planning on banning abortions in California. Far from it. I’d be less surprised if he tried to make abortions mandatory. No, he wants to use the trickery (if that’s an accurate description) that has allowed the Texas abortion ban to withstand court challenges, at least thus far, to impose gun bans in his state that would supposedly avoid scrutiny from the courts at the federal level. (Fox News)
In responding to the U.S. Supreme Court decision allowing the Texas abortion ban to stay in place, California Gov. Gavin Newsom on Saturday said he plans to propose a gun control law that would be modeled on the Texas law.
Newsom said the Supreme Court’s decision has set a precedent that will allow states to avoid federal courts when enacting laws…
“I am outraged by yesterday’s U.S. Supreme Court decision allowing Texas’s ban on most abortion services to remain in place,” Newsom wrote in a statement Saturday. “But if states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives, then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”
So in Newsom’s mind, the correct response to seeing Texas pass what he feels is a crappy law is to pass a raft of crappy laws in California. That’s just wonderful.
I will freely confess that I’ve been happy to let the other writers on this site wrestle with the story of the Texas abortion ban. What Texas is attempting to do is taking us into what are pretty much uncharted waters in constitutional terms and it’s very complicated. But the immediate concern that Newsom’s announcement raised for me was a question as to whether or not he might actually be able to get away with it. While I was pondering this article, I was relieved to see that Jonathan Turley – who knows vastly more about constitutional law than I ever will – had already rung the bell. The shortest version of his analysis is summed up in three words. “It won’t work.”
… If the law is crafted as Newsom suggests, this won’t work. Of course, there will be much cooing on cable news at the cleverness of Newsom and the comeuppance for conservatives. Newsom will seize the moment in terms of popularity while leaving the costs to others to bear.
— Jonathan Turley (@JonathanTurley) December 12, 2021
Turley points us to his own article where he offers a more lengthy explanation as to why Newsom’s plan is doomed, but will still be viewed as a political stroke of genius on the left.
Good luck with that.
The problem is multifold. First, the Texas law was quickly found to be unconstitutional, as would the California law. Indeed, many of us declared the law as facially unconstitutional under existing precedent on the day that it was enacted. That means that, while there are litigation costs, those costs would decrease quickly as other courts declare challenges to be unconstitutional.
Second, the Supreme Court just allowed pre-enforcement challenges so the California law could be challenged to avoid any “chilling effect” on gun rights. Eight out of nine justices agreed that such early challenges are permissible against those with enforcement responsibilities in the abortion area. As a state that has led efforts to limit gun rights, there are a host of such officials with similar licensing powers in California.
Turley goes on to point out that Newsom would limit the target of these gun rights lawsuits to “gun manufactures, distributors, and sellers,” leaving out the host of other potential “aiders and abetters.” In Texas, nearly anyone even vaguely associated with a woman getting an abortion could find themselves the target of a lawsuit. In California, the only targets would be the large gun manufacturers and distributors who would not be scared off by a lawsuit that was, in his words, “clearly unconstitutional.”
I would just like to point out a couple of things about this situation, including some that others have clarified fairly well. The Texas abortion law is still standing at the moment, but it’s on the ropes. There is no assurance whatsoever at this point that it will survive, at least not with any teeth to it. The fact that the Supreme Court immediately opened the door to pre-enforcement challenges by an eight-to-one margin sends some powerful signals on that score.
But even if it were sitting on a rock-solid foundation, there are differences between the abortion debate and gun rights questions that Newsom seems to be ignoring. For one thing, there is no specific right to an abortion in the Constitution. It’s a matter for the courts to determine. Until liberals figure out a way to repeal the Second Amendment, the same can not be said about gun rights.
Also, the “tricky” idea of allowing random citizens to sue people involved in any given activity would quickly run into choppy waters under Newsom’s proposed scheme. In order to successfully bring a suit against anyone “helping” a person purchase a rifle or other firearm (such as the FFL, a distributor, or a manufacturer) the person seeking to bring the suit must first show they have standing to do so. If you happen to see your neighbor going into a gun shop and legally purchasing a Bushmaster, you have to be able to demonstrate what actual harm the purchase caused you to suffer. Further, you would have to be able to demonstrate for the judge that a successful resolution of your lawsuit would remove the harm. That just seems flatly impossible in the situation being described here.
That doesn’t mean that Gavin Newsom will allow reality to stop him. This is purely political theater. And as Turley went on to point out, he will have plenty of backers in the media who will also ignore those who will be stuck with the tab when the effort inevitably fails. He wrote, “there will be much cooing on cable programs at the cleverness of Newsom and the comeuppance for conservatives. Newsom will seize the moment in terms of popularity while leaving the costs to others to bear in the later failed litigation.”
That sounds about right to me.