Shilpi Agarwal is the legal director at the ACLU of Northern California.
Gov. Newsom is sponsoring a bill, SB 1327, that would allow private individuals to sue one another for the illegal manufacture or sale of guns in California. The bill is explicitly modeled after SB 8, Texas’ abortion ban, which not only bans abortion after about six weeks of pregnancy—before many people even know they’re pregnant—but also creates a bounty-hunting scheme that encourages the general public to bring costly and harassing lawsuits against abortion providers and anyone else they suspect of helping someone to obtain care.
SB 8 was designed this way in an attempt to prevent court protection of a constitutional right. It is an end-run around the system that we generally rely on to protect our rights.
The Texas government is not empowered to enforce the abortion ban part of SB 8 directly, but it doesn’t need to. The massive threat of unlimited lawsuits created by the bounty-hunting provisions has had a chilling effect on doctors and clinics in the state. The severe restriction on access to abortion care in Texas has been harmful for everyone, but especially low-income people, and particularly Black, Indigenous, and other people of color, for whom many barriers to accessing timely care already existed.
Gov. Newsom and the authors of SB 1327 have spoken out strongly against SB 8’s attack on abortion access. But, in SB 1327, they hope to create a silver lining to this terrible Texas law. Indeed, one of the authors of the California bill has touted it as taking advantage of the “flawed logic” of SB 8, to try to address what is certainly a significant problem in our state: the proliferation of illegal guns.
We believe it is a serious misstep to further entrench that flawed logic. In doing so, California will be promoting a legal end-run that can be used by any state to deny people an effective means to have their constitutional rights protected by the courts. This will continue to be replicated in states across the country—and with California’s endorsement.
The erosion of court protection of constitutional rights means that states will be empowered to cherry-pick the hot-button political issue of the day and apply the SB 8 mechanism to it, through the passage of their own copycat bills. Such bills have already been considered to target abortion rights, transgender rights, and speech rights. This will inevitably escalate our ongoing and dangerous polarization, where the enforceable constitutional rights that a person possesses in one state will differ from those that a person possesses in another.
But your rights under our nation’s Constitution should not differ depending on where you live in the U.S.
Throughout history, we’ve relied on the courts to check state laws that violate the Constitution. Without that check, the ideal of constitutional rights being available to everyone in this nation, no matter who or where they are, is all but impossible.
Innumerable court cases have sought to establish a uniform application of constitutional rights across the nation. To take just one example from a multitude: The ACLU’s celebrated 1967 Loving v. Virginia case challenged an unjust state anti-miscegenation law and prompted the Supreme Court to declare any prohibition on interracial marriage in the U.S. unconstitutional. That ruling, in turn, served as the foundation for the Supreme Court’s 2015 ruling in another renowned ACLU case, Obergefell v. Hodges, which held that states cannot refuse to perform or recognize the marriages of same-sex couples.
The legal mechanism behind SB 1327 takes a hatchet to a fundamental ACLU ideal that underlies these cases: that the Constitution is meant to protect everyone in this country. Everyone, no matter their background or political leaning, deserves access to due process and equal protection under the law. And courts are supposed to have the power to intercede when another government actor encroaches on that ideal.
The ACLU opposes SB 1327 because we oppose restricting Californians’ access to courts to protect their rights. We cannot stand silently by while our leaders escalate an “arms race” of curtailing constitutional rights by setting up bounty-hunting schemes on politically sensitive issues, particularly at a time when so many of our rights across this nation are under attack, including the right to access abortion and gender-affirming care, and the right to vote.
Lawmakers have options for addressing the scourge of gun violence without creating an end-run around the Constitution. SB 1327 is not the law that the critical issue of gun control deserves. It would set a dangerous precedent that threatens to further erode the ideal of constitutional rights for all.