John Lott has a new piece at The Federalist about Gavin Newsom’s promise to use the US Supreme Court decision on Texas’ abortion law to push new gun control in California.
You would never know it from the reaction of President Biden and Governor Gavin Newsom, but the U.S. Supreme Court’s decision on Friday about the Texas abortion case didn’t overturn Roe v. Wade. It dealt with arcane legal precedent over who can sue and be sued – what is called “standing” – and the constitutionality of Texas’ law is far from settled. Hopefully, on Saturday, because Newsom hadn’t yet read or understood the decision, he announced that he would now use the ruling to help Californians enforce gun control laws.
Biden and Newsom’s comments are more likely to gin up anger by their supporters than have anything to do with the Supreme Court or the law.
Texas’ controversial law lets private citizens sue anyone who “aids or abets” most types of abortions performed after about six weeks. The only issue decided by the Court is who you can sue. Abortion rights advocates tried suing various state officials to get the law declared unconstitutional, but the Court stopped their lawsuit because Texas state officials aren’t themselves enforcing the law. The Court has long held that you can only sue those who have directly harmed you.
The decision won’t stop people from further challenging the Texas law. Justice Gorsuch’s majority opinion said those seeking to overturn the law couldn’t sue people such as state-court clerks who handle the paperwork by those suing or the state-court judges who decide those disputes. In a dissent authored by Chief Justice John Roberts and joined by the three liberal justices, they agreed that state-court judges couldn’t be sued, but that court clerks could be.
But the ruling is hardly the end of this debate. Gorsuch’s decision said pre-enforcement lawsuits are allowed, and it explicitly lays out who the abortion advocates can sue in state courts. For example, eight of the Justices agreed that they can go forward with a lawsuit against state medical licensing officials.
Newsom wants to use this private legal action to enforce California’s ban on so-called “assault weapons” and privately made guns (what gun control advocates call “ghost guns”). But his whole strategy is a bit of a mystery. California already bans anyone who manufactures, distributes, or sells assault weapons or ghost gun kits or parts. Their assault weapon ban has been in place for decades. There is no evidence that gun dealers in California have continued selling these banned weapons.
In addition, the Democrat dominated 9th Circuit Court of Appeals has upheld all of California’s gun control laws, so this indirect method of enforcement through private parties isn’t even necessary. The whole point of the Texas law is to avoid using state law enforcement to restrict abortions.
A number of legal experts believe courts will eventually strike down Texas’ law. In any case, Gorsuch’s opinion allows pre-enforcement challenges, and it has implications for what Newsom wants to do. Pre-enforcement challenges will avoid any “chilling effect” on gun ownership. In addition, unlike the Texas law that targets anyone who “aids or abets” abortion, Newsom’s limiting his proposal to just manufacturers, distributors, or sellers means that he will be up against businesses who will be less intimidated by litigation costs.
One aspect missing from the whole debate is that the private enforcement of laws is hardly new. It is used for everything from minimum wage laws to rent control.
For example, if employers pay workers less than the minimum wage, the workers can sue to get back double the underpayment of wages. If a worker earns $5 per hour when the minimum is $7.25, he’d have about $4,500 in underpayments for a year — and a $9,000 payoff for suing. He will get compensated for however long he gets underpaid. As a result, only a tiny fraction of 1 percent of Americans covered by the minimum wage are paid too little, and these rare violations mainly involve mistakes by employers, not outright lawbreaking.
The only “cops” needed are fewer than 1,000 federal agents who are busy enforcing recordkeeping, child-labor standards, overtime, and other labor regulations.
Similarly, rent control laws are enforced by the renter being able to sue for overpayment of rent.
The entire debate over Newsom’s enforcement of gun control at this point is more theatrics than logic or legal substance. But that shouldn’t be surprising. Politicians can never pass up the opportunity to energize their base.