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Texas used citizens as bounty hunters in its abortion ban enforcement. Can California do the same for gun control?

California Gov. Gavin Newsom. AP Photo/Jeff Chiu

This month, the Supreme Court declined to block a Texas abortion ban that lets private citizens sue people seeking abortions after six weeks of pregnancy, as well as the doctors who provide them and the clinics where they receive them. 

The law took effect last week. While the Supreme Court did not weigh in on whether the statute—which hands enforcement of the law over to private citizens—is unconstitutional, it did allow abortion providers to challenge some state officials in federal court. 

Following the decision, California Governor Gavin Newsom issued a statement saying his administration was drafting a bill that would adopt the legal framework used in the Texas law to give Californians the ability to sue gun manufacturers. This comes after a judge overturned the state’s long-running assault weapons ban over the summer. The bill would let the state’s citizen-bounty hunters sue anyone who “manufactures, distributes, or sells an assault weapon or ghost gun kit or parts.”

Texas’ legal strategy is an obvious attempt to skirt the constitutional protections

Distinguished Professor of law and associate dean for experiential education at Northeastern, Martha Davis poses for a portrait. Courtesy Photo

spelled out in Roe v. Wade concerning a woman’s right to an abortion, which have been reaffirmed by the high court in two other notable cases. Those protections are also under threat in a similar case involving an abortion ban in Mississippi, on which the Supreme Court has yet to issue a ruling—though the justices have signaled that they may be looking to overturn portions of Roe v. Wade when the case is before them. 

Regardless of the outcome in the Mississippi case, the fact that states are attempting to circumvent the courts in this way threatens to upend “a couple centuries of expectation around judicial review,” says Martha Davis, university distinguished professor of law at Northeastern. 

“It’s shocking really,” Davis says. “It really opens the door to the end of judicial review on constitutional issues.”

Northeastern Professor of Law Jeremy Paul. Northeastern photo

Newsom’s plan to utilize the Texas framework to tackle gun control may encounter greater difficulty because the Constitution so clearly articulates gun protections, whereas abortion rights are not explicitly stated, Davis says. There is also a federal law shielding gun manufacturers from litigation tied to crimes committed with their products, an added hurdle that Texas officials don’t need to contend with in their effort to stop abortions.

The Texas and California laws share a structure, but the similarities end there, says Jeremy Paul, professor of law and former dean of Northeastern’s School of Law. The courts have historically clamped down on abortion protections while expanding gun rights, a trend that doesn’t bode well for the California governor’s plan, should the state legislature pass the work-around bill. 

But it’s still possible that the legal framework could provide California with a pathway to more effective gun control, even if that means leaving “enforcement” to the state’s citizenry, Paul says. As in the Texas abortion case, all of the proper legal procedural tests will have to unfold first.

I think it’s very possible, but there are many steps involved,” he says. 

And there are many complications. If the Supreme Court strikes down Roe v. Wade in the Mississippi case, the ability of the Texas law, which is currently being challenged in state courts, to stand on its own will never be realized, Paul says. If Roe v. Wade is upheld, and the Texas law struck down, it’ll have been a paper tiger all along. 

“It might only have had this chilling effect,” Paul says. “It looks bad on paper, but ultimately it’ll fold.”

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