California SB1327 Creates A Private Right of Action for Citizens to Enforce Gun Laws
On May 19th, 2022, the California State Legislature ordered to Third Reading SB1327, a bill that creates a “private right of action for any person against any person who, within California, manufactures, distributes, transports, or imports into California or causes to be distributed or transported or imported into California, keeps for sale or offers or exposes for sale, or gives or lends any firearm lacking a serial number required by law, assault weapon, .50 BMG rifle, or firearm precursor part” (subject to certain exceptions). Essentially, this would allow any California citizen to file a civil lawsuit against those who break firearms laws in the state.
How did we get to private citizens enforcing firearms laws? Let’s investigate:
In the text of the bill, SB1327 specifies that the private right of action that it creates would be “inoperative upon invalidation of a specified law in Texas, and would repeal its provisions on January 1 of the following year.” That law is Texas SB8, The “Texas Heartbeat Act,” effectively outlawing abortions after the detection of an unborn fetus’ heartbeat by authorizing a private civil right of action against people who aid those seeking abortion care, against people who intend to aid those seeking abortion care, as well as against healthcare providers who provide abortion care.
Both SB8 and SB1327 are, for lack of a better term, legally bizarre in that they do not permit any state official to enforce them– these provisions are to be enforced exclusively through private actions (lawsuits) by citizens. SB1327 does not give a minimum damage amount, but the minimum damage amount in SB8 for each lawsuit is $10,000. There is no upper limit. The legal question at hand in both bills is whether a state can insulate from federal court review a law that severely curtails or prohibits the exercise of a constitutional right by making the general public enforce it through private lawsuits.
The Supreme Court, in December 2021 answered with a resounding “kind of” in Whole Women’s Health v. Jackson, saying that some legal challenges to SB8 can stand, but not others, and the law would remain in place in Texas while those legal challenges played out. The Supreme Court, in their opinion, did not give any guidance as to who the right parties concerning a potential lawsuit to challenge SB8 would be. As of March 2022, The Texas Supreme Court has effectively killed abortion providers’ challenge to the law, ruling that providers challenging the law cannot sue medical licensing boards in the state– the lawsuit provision in SB8 that depends on private lawsuits to enforce the law effectively prevents people seeking to challenge the law from doing so because they cannot name a defendant.
SB1327 in California was not unforeseen. In Whole Women’s Health v. Jackson, attorney Erik Jaffe filed an amicus brief in support of Whole Women’s Health on behalf of the Firearms Policy Coalition, a non-profit libertarian-leaning organization focusing on Second Amendment litigation and research with the goal of maintaining the right to keep and bear arms. Jaffe’s argument (summarized) is:
- Laws that deter or chill the exercise of constitutional rights violate those rights.
- If Texas’s scheme for postponing or evading federal review is successful in this case, it will serve as a model for deterring and suppressing the exercise of numerous constitutional rights.
- There are a variety of paths for allowing a pre-enforcement challenge to proceed in this case.
In Jaffe’s brief, he uses New York as an example of a state already experimenting with private enforcement of anti- gun laws, and says very plainly that other states will not be far behind. As of the time I’m writing this blog post, the New York Legislature has passed a bill enabling New York citizens to file civil lawsuits against gun makers/manufacturers.
If New York and California are any indication, “blue” states will not be shy about taking a page from Texas’s legal playbook to curtail firearms rights. As people interested in maintaining our second amendment rights, we must maintain awareness of the fact that legally, our individual liberty to keep and bear arms is bound up with advocating for all individual liberties– the same legal framework that protects the right to abortion also protects our other constitutional rights. Laws like Texas SB8 create legal pathways to interfere with the exercise of our other constitutional rights, creating copycat laws like SB1327. As a club, our stance on laws that curtail individual constitutional rights should now and continue to be, no.