On July 22, California enacted S.B. 1327—gun legislation explicitly modeled after Texas’ controversial “fetal heartbeat” abortion bill (S.B. 8) that is enforced exclusively through private actions.
California Gov. Gavin Newsom (D) previewed the law last December, after a majority of the US Supreme Court largely agreed with Texas that its law prevented federal pre-enforcement lawsuits against state officials because they did not have authority to enforce S.B. 8 (other than certain licensing board members).
While the California law mimics S.B. 8’s enforcement mechanism, it is not the identical twin it appears to be.
New Gun Control Law
Substantively, California’s law is simple: it bans the manufacture and distribution of assault weapons and guns without serial numbers; the sale or transfer of “ghost gun” component parts; and the sale of guns to anyone under age 21 (with limited exceptions).
The law is notable because it explicitly precludes enforcement by state and local governments. S.B. 1327 is enforced solely by private individuals through civil lawsuits alleging that someone knowingly violated its provisions.
Private plaintiffs benefit from favorable procedural rules regarding standing, affirmative defenses, and attorneys’ fees. Plaintiffs who prevail will recover a minimum of $10,000 in statutory damages.
In theory, California’s law is designed to function like S.B. 8: although banned conduct may be protected by the Second Amendment, the law is structured to prevent pre-enforcement federal challenges to its constitutionality against state officials—a normal way to vindicate constitutional rights.
Rather, because the law is enforced only by private litigation, individuals cannot challenge the law in federal court without waiting to be sued and raising constitutional protections as a defense (they might be able to sue in state court, although they also might fear that state court judges are less likely to be receptive to these defenses).
The risk of being sued under a plaintiff-favorable framework may deter individuals from challenging the law in the first place. For example, abortion providers in Texas generally declined to provide abortions after six weeks (when a fetal heartbeat is detected) for fear of being sued under S.B. 8, even before the Supreme Court overturned Roe v. Wade in Dobbs.
Differences From Texas Anti-Abortion Bill
One major way that S.B. 1327 differs from its Texas counterpart is that, notwithstanding the Supreme Court’s recent decision in Bruen, the law (or large portions of it) may still be constitutional. S.B. 8 was passed while Roe and Casey were good law.
By banning virtually all abortions after six weeks, Texas’ law violated the right to abortion pre-viability that existed under Supreme Court precedent. California’s law does not ban gun possession—only the manufacture, sale, or transfer of certain weapons and to certain groups.
Bruen did not mark the end of all gun regulation; for example, the holding should not disturb Heller’s directive that “conditions and qualifications on the commercial sale of arms” are presumptively lawful. And Bruen did not shed additional light on what types of guns are protected by the Second Amendment.
While some (including Justice Clarence Thomas) believe that “AR-style semiautomatic rifles” are commonly used for lawful purposes and thus protected, how about ghost guns? Do commercial restrictions on the sale of these weapons prevent responsible, law-abiding citizens from defending themselves? If the conduct is protected, are these provisions “consistent with the Nation’s historical tradition of firearm regulation”?
To take ghost guns as an example, there is little debate that serialization helps law enforcement trace guns used in crimes and no federal appellate court has invalidated a ghost-gun ban. However, some argue that the lack of historical regulation of self-manufactured firearms supports a right to possess modern ghost guns in some form.
These are unsettled questions.
Unlike S.B. 8, California’s law operates on the margins of the constitutional right. It also operates alongside broader state-law criminal prohibitions like California’s assault weapons ban and laws criminalizing the unauthorized transfer of ghost guns, some of which have been challenged in federal court.
The direct analogue to S.B. 8 would, presumably, be a law banning all handgun possession—clearly unconstitutional, but possibly not subject to direct federal challenge after Whole Woman’s Health if enforced only through private litigation.
On one hand, California’s law may be more likely to deter certain gun transfers and sales—because it is unclear that a defendant would prevail by invoking the Second Amendment, it is quite risky to invite litigation under its plaintiff-favorable framework.
Bipartisan Backlash
On the other hand, one might view S.B. 1327 as a tit-for-tat gambit that does not achieve real-world results. This conduct is already criminalized in California, and the law continues a disturbing trend of states using private enforcement to circumvent federal courts—which both the ACLU and the Firearms Policy Coalition have criticized.
The Supreme Court ultimately did not rule on the merits of S.B. 8’s enforcement mechanism, and Texas’ abortion “trigger” ban—a blanket prohibition that automatically kicks after a decision overturning Roe—goes into effect Aug. 25. We are unlikely to see future legal challenges to S.B. 8 because the constitutional defense that abortion providers would have invoked is no longer available.
Texas’ gambit was successful: It deterred abortions protected under Supreme Court precedent until that protection was lifted and the abortions could be criminalized. But commentators have identified other ways states might use this model to chip away at constitutionally-protected conduct.
California’s gun law increases the odds that the Supreme Court will provide much-needed substantive guidance on the extent to which states can use the private-plaintiff enforcement mechanism to skirt federal judicial review.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Andrew Willinger is the executive director of the Duke Center for Firearms Law. Prior to joining the center in June 2022, he practiced civil litigation at Patterson Belknap Webb & Tyler LLP in New York.