Carole Levine December 14, 2021
State legislatures continue to create new laws that assault the bodily integrity of women and their right to make personal health decisions. They are finding support and backup in a federal court system that is reshaping the laws to strip away women’s fundamental rights. We are watching as the Texas 6-week abortion ban – SB 8 – is wreaking havoc for people seeking abortion care, especially people of color and those without the means to travel to another state for that care. There is a dark cloud over Texas abortion providers and supporters who fear a lawsuit that can be brought by anyone. And we are now seeing state legislators in Florida and other states rushing to replicate the Texas model and put the “policing” of abortion into the hands of the people.
But wait! California has seen the Texas process of bypassing the court systems and turning the enforcement of a state law governing a controversial issue over to vigilantes as the new way to go. Last week, California Governor Gavin Newsome, seeing the Supreme Court refuse to put a hold on the Texas end run, pledged to empower private citizens to enforce a ban on the manufacture and sale of assault weapons and ghost guns in his state. In doing this, he cited the same authority claimed by Texas lawmakers when they passed SB 8 that outlawed abortions once a heartbeat is detected at about six weeks. Newsome’s strategy is a direct response to a federal district court judge overturning an existing ban on the manufacture and sale of many assault weapons that had been in place for years. The federal judge ruled it unconstitutional, and compared the AR-15 rifle to a Swiss Army knife. The California ban remains in place while the state appeals.
In the meantime, the Governor has directed his staff to work with state legislators and the Democratic attorney general to pass a law that would let private citizens sue to enforce California’s ban on assault weapons. People who sue could win up to $10,000 per violation plus other costs and attorney fees against “anyone who manufactures, distributes, or sells an assault weapon” in California. “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,” Newsom said in a statement released by his office at 7 p.m. on Saturday. “If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that,” Newsom said.
This will not happen overnight, nor was this move by the Governor unexpected. The California legislature will not meet again until January and then it may take as much as nine months to move this legislation through. But some gun rights advocates saw the handwriting on the wall when Texas proposed SB 8 and opposed it for just these reasons. The Firearms Policy Coalition, a gun rights group, even filed brief with the Supreme Court opposing SB 8, for just this reason. If Texas is successful with SB 8, gun rights groups expect that other liberal leaning states will be quick to follow California’s lead in adopting this same strategy of citizen vigilantism for gun control. And they may not wait for California to get their law passed.
So, what does this mean? Will our nation now evolve into one where many laws are now enforced at the behest of citizen vigilantes? Will law enforcement take a back seat to “citizen arrest”? If the goal of SB 8 was to bypass the court system as the means of recourse to appeal the law, will that become the new “go to” means for any kind of controversial regulation? All of this is unsettling and while some may be celebrating a victory of sorts on one issue, they may also be seeing a future loss on another. Perhaps there needs to be some stepping back here to look for what might really work for the greater good without imperiling our courts and our legal systems. Perhaps not everything can be so clearly defined as “my way or the highway…” Justice via vigilantism does not serve anyone well. We have important issues that need to be addressed and we have systems in place that, when not rigged or gerrymandered, often function in the best interest of most people. Perhaps our focus should be on “righting” those systems and not on doing an end run around them.
