21 December 21
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Many applauded this move when I announced it, but some have argued that California should not follow Texas down this path of vigilante justice. I understand the concern. But I strongly disagree.
Let me be clear: The Supreme Court should never have opened this door in the first place. As Justice Sonia Sotomayor put it, it’s “madness” to approve a state law like Texas’s “that chills the exercise of a constitutional right and aims to evade judicial review.” California opposed Texas’s ploy at the Supreme Court, and I wish the court had agreed with us. But so long as this door is open to states, we’re going to walk through it, too, to protect Californians and bolster our common-sense gun laws that have come under attack. It’s not “taking the low road” to seize an opportunity to keep people safe.
And unlike the Texas law, my proposal would not chill a constitutional right. No binding precedent has ever held that weapons of war or homemade “ghost guns” that evade basic regulation are constitutionally protected. Texas’s law, on the other hand, blatantly flouts Roe v. Wade’s fundamental protections.
Maybe California’s move will lead the court to change its mind about allowing Texas’s bounty-hunter scheme. If that’s the case, women’s reproductive care across our nation would be better off. If there’s anything I’ve learned as a father of four kids, it is that sometimes you don’t realize you’ve made a mistake until you see the consequences of your actions come true.
Or maybe Congress will respond to both laws — and also Florida’s recent proposal to allow private suits against those teaching “critical race theory” — by putting an end to this chaos and making it easier to challenge these laws up front, before suits filed under those laws result in thousands of dollars in damages. But if only radical conservative interests follow Texas’s playbook, we’ll never see change.
Other critics have argued that California’s plan will never work. They say that this Supreme Court will not blink at upholding a Texas abortion ban while striking down a California gun ban. But there is no principled way to do that. The court itself said so. In his opinion for the majority, Justice Neil M. Gorsuch claimed that it was holding Texas abortion providers to the same standard as those who would sue to vindicate “the right to bear arms, or any other right.” In a separate opinion, Chief Justice John G. Roberts Jr. recognized that Texas’s scheme could be used by other states regardless “of the federal right infringed.” And at a hearing last month, Justice Brett M. Kavanaugh asked Texas’s lawyer whether the state’s position would mean that gun laws could be insulated from review, too. Texas’s answer: “Yes.” The court knew what it was opening the door to when it affirmed Texas’s procedural games.
Of course, it’s always possible the court could find some way to gerrymander its ruling to allow Texas to use this plan for abortions but not California for assault weapons and ghost guns. But if the court is going to be that hypocritical, then at least we will be shining a spotlight on how the branch of the federal government charged with upholding the rule of law is trampling it instead. There’s value in that, too.
California isn’t afraid to take bold steps. We stand up for our values; we don’t sit by idly when they come under attack. The Texas decision is an abomination, and I’m proud to respond not with quiet complicity but with action to protect women’s rights and keep our communities safer.
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