California Governor Gavin Newsome has put his signature on legislation inspired by SB 8, the Texas statute enacted last session permitting private citizens to enforce the state’s anti-abortion laws through civil lawsuits.
SB 1327 creates a private cause of action that may be brought by any person against any other person who, within the state:
- manufactures, distributes, transports, or imports (or causes any of those things to happen), keeps for sale, offers, or exposes for sale, or gives or lends any firearm lacking a serial number required by law, an assault weapon, or a .50 BMG rifle (i.e., a machine gun);
- purchases, sells, offers to sell, or transfers ownership a firearm precursor part as defined by federal law; or
- is a licensed firearms dealer and sells, supplies, delivers, or gives possession or control of a firearm to any person under 21 years of age.
The new law contains the same language as SB 8 regarding enforcement solely by private civil action and not by any arm of the state. Like SB 8, it subjects a violator to knowingly engaging in the conduct described by the law or aiding and abetting a violation. Again, as in SB 8, the remedies include injunctive relief, statutory damages of at least $10,000 for each violation, and court costs and attorney’s fees. The law provides for an alternative civil penalty if a court finds the private remedies unconstitutional. It further deprives a defendant of standing to assert the right of another individual to keep and bear arms under the Second Amendment in the same manner that SB 8 bars third-party standing to assert abortion rights.
In a clever example of turnabout is fair play, SB 1372 includes a self-destruct clause in the event SB 8 is repealed or annulled. It seems doubtful, however, that the Texas Legislature will take this hint, and perhaps even more doubtful that the U.S. Supreme Court, having let SB 8 go, will be able to do much about. Justice Kavanaugh’s concerns about SB 8 have now been fully realized, probably more quickly than he thought.