California Governor Gavin Newsom has done what tons of progressives want elected Democrats to start doing: fight like Republicans. Over the weekend, he announced that his office is working on a bill modeled after Texas’s Senate Bill 8—the one that empowers private bounty hunters to take away the constitutional rights of women and pregnant people by enforcing a six-week abortion ban. But Newsom doesn’t want California’s version to go after people with uteruses; he wants it to go after people with guns.
Newsom’s proposed law would allow private citizens to sue manufacturers, distributors, or sellers of assault rifles or “ghost gun” kits in the state of California. These bounty hunters would be entitled to at least $10,000, plus attorney fees, per violation. If enacted, the threat of a lawsuit would make it very difficult for anyone to open a gun shop in California. Newsom said, “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, of course, does not think that this is the most efficient way to keep assault weapons off the streets. California had an assault-weapons ban that, arguably, kept some limits on these weapons of mass mutilation and didn’t require bounty hunters to do it. But a federal judge struck down that ban earlier this year. Then, last week, the Supreme Court declined to strike down the bounty system at the heart of SB 8, and so we are here.
Or, to put it a sharper point on it: Conservatives have deployed spurious constitutional logic to try to take away the rights of women and pregnant people, so Newsom has responded by trying to take away the rights of something conservatives actually care about: guns. This is coming out of California, but it reminds me of “the Chicago way” as described in the movie The Untouchables: “He sends one of yours to the hospital, you send one of his to the morgue.”
It’s a good stunt, and if we understand it as just that—a stunt—then we can appreciate what Newsom is doing. He’s highlighting how the logic of SB 8 can be used by any state to circumvent constitutional rights and nullify federal law. It makes the SB 8 debate about something more than just abortion (which I guess is important for those who think forcing women and girls to give birth against their will just doesn’t rate as a matter of critical significance) and highlights how this issue goes to the very nature of law and federal power. You can’t use private bounty hunters to circumvent constitutional rights, or else the very concept of constitutional rights loses all meaning.
A stunt, however, is not a solution. People who think Newsom’s proposed legislation will box the Supreme Court either into striking down SB 8 or allowing bounty hunters to sue gun manufacturers simply aren’t paying attention to what this court is doing. These conservatives are not bound by logic. They are not servants of intellectual consistency. They are not cowed by calls of hypocrisy. Conservatives on the Supreme Court do what they do because they can. They want to make it harder for women to control their own bodies, so they are doing that. They want to make it easier for people to purchase weapons, and so they are doing that. Acting like the court can’t do one thing without also doing some other thing fundamentally misreads the conservative project. They can do, or not do, whatever they want.
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The Supreme Court will dismiss the proposed California law before breakfast—on the very same day that they overturn Roe v. Wade, if necessary. For starters, conservatives on the court don’t actually believe that abortion is a fundamental right. They don’t think the court finally recognized women’s right to their own bodies in the 1970s; they believe the court invented that right in the 1970s. And they therefore believe those rights can be easily taken away, without upsetting the constitutional order.
By contrast, they believe gun rights were recognized and written down by the wealthy white men who were allowed to recognize things and write them down at this country’s founding. I’m not being glib or unfair when I say conservatives value gun rights more highly than they value women’s rights. I’m just telling you these people actually believe gun rights are in the Constitution and reproductive rights are not.
Therefore, the court will say that the states can’t use private bounty hunters to take away a “fundamental” right like gun ownership but can use them to take away or significantly limit a “made-up” right like reproductive freedom.
Beyond this, conservatives will point to the express will of Congress to smack down Newsom’s challenge. You see, Congress has never protected abortion rights at the federal level, has never shielded anyone from being forced to carry a fetus against their will. But it has protected gun manufacturers. The Protection of Lawful Commerce in Arms Act is a 2005 law that prevents them from being held liable when their weapons are used in a crime. This liability protection has been given to gun makers and pretty much no other industry in this country and gives conservatives an opening to argue that gun makers can’t be held liable by bounty hunters (if gun makers are protected when weapons are used in a crime, it stands to reason that they’re also protected when weapons are not used in a crime). Newsom’s proposal would therefore run into not only conservatives’ bloodthirsty version of the Second Amendment but also the federal law that gives special privileges to the gun lobby.
Some might argue that these hurdles could be overcome with careful legislative drafting. After all, Newsom’s press release is not what the actual law would look like, and I’m confident smart lawyers could come up with clever arguments for all of these potential pitfalls. After all, Texas’s SB 8 was itself a “stunt” that just happened to work. There’s no objective reason Newsom couldn’t do the same, especially now that Texas has shown him the way.
But the problem for progressives has never been the quality of their legal arguments. It’s never been about the constitutional principles or the statutory precepts at play. It’s always been about the conservative justices who are allowed to impose their will, and their policy preferences, on the rest of us. Chief Justice John Roberts had the weaker legal argument when he gutted the Voting Rights Act in Shelby County v. Holder in 2013, but he had five votes. He had a facially ridiculous argument when he upheld Trump’s Muslim ban in Trump v. Hawaii in 2018, but he had five votes. Anthony Kennedy had a bonkers and barely intelligible legal argument in Citizens United v. FEC in 2010, but he also had five votes. Antonin Scalia was wrong about the law, American history, and his own judicial philosophy when he straight-up invented a private right to gun ownership in D.C. v. Heller in 2008, but he had the votes.
The Supreme Court justices can say whatever they want to justify any policy they prefer, and it need not have any grounding in the law. If you don’t believe me, then you need to tell me where I can find the Al Gore Presidential Library, because that would be a real thing if Supreme Court justices were bound by the court’s past logic.
Perhaps this Newsom gambit will put the court’s corrupt reality into stark relief for those who insist on pretending it is some kind of apolitical institution, objectively applying the law as best it can. It’s at least worth a try. Perhaps the “stench” of the justices’ allowing Texas to nullify women’s rights while prohibiting California from doing the same to gun manufacturers will get some elected Democrats to reckon at last with what they’re up against.
But make no mistake: Progressives cannot win actual cases in conservative-controlled courts. They can’t trap them in logic puzzles. They can’t shame them. They can’t make conservatives choke on their own hypocrisy. Laws like the one proposed in California would work if conservatives were acting in good faith. But they’re not. Conservatives are not appointed to adjudicate the law in good faith but to bring victory to the Republican political agenda.
The sooner progressives understand this, the sooner we’ll move beyond stunts and toward wresting power from conservatives and their courts.
