Over the past week, Governor Gavin Newsom of California has broached introducing legislation that would do to gun providers what Texas has done to abortion providers: deputize a massive army of private “bounty hunters” to put them on the defensive. A California initiative would allow any Californian to sue “anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts” and recover unlimited damages. The defendants would have to plead their Second Amendment rights in appealing adverse verdicts — if they could stay in business long enough to do so, which many could not. Governor Kathy Hochul opened the door for a similar approach in New York with earlier legislative action that authorizes suits against gun manufacturers for injuries and deaths linked to firearms.
At long last, Democrats are coming armed to a political gunfight.
The decision to borrow this approach — which eliminates the pre-enforcement injunctive remedies that previously shielded federal rights from such assault by ensuring that no state officials amenable to federal suit play a role in the assault on those rights — has drawn handwringing from across the political spectrum. Politicians on the right who only weeks ago championed a similar approach for ending abortion now hypocritically cry foul when the topic turns to saving lives from gunfire. Of more concern, some high-profile liberals and progressives vocally resist such efforts as unprincipled examples of stooping “to the level of conservatives in circumventing federal courts’ authority.”
There is no doubt that Texas’ controversial abortion ban and its injunction-skirting mechanisms represent an alarming affront to federal protection of constitutional rights and to the rule of law. As advocates of such protection, we do not come easily to our endorsement of these efforts. We would much rather follow Michelle Obama’s once timely mantra, “When they go low, we go high.” But doing so here would dramatically misread the moment.
When stemming the nationwide tides of gun violence through the federal government appears hopeless, the approach proposed by Newsom and the earlier efforts of Hochul should be emulated, not disdained, by leaders of every state concerned with protecting innocent residents from avoidable slaughter. The Supreme Court is dominated by a conservative majority that sits to the right of Rambo when it comes to expanding gun rights — and indeed appears poised to kill off longstanding and effective blue-state gun laws. Meanwhile, as the apparent demise of the Build Back Better bill has shown, congressional efforts rest at the mercy of self-interested and undependable lawmakers like Democratic Senator Joe Manchin of West Virginia.
To urge progressive leaders to decline the Supreme Court’s invitation when the lives of their citizens are on the line is to urge unilateral political disarmament in the vital fight for firearms safety. Undoubtedly, the Supreme Court’s five-justice majority, when it left in place on Dec. 10 the horrific Texas scheme for extinguishing abortion rights, cut a novel and dangerous path through the dense forest of federal legal protections for constitutional rights. But the majority had no reply to Justice Sonia Sotomayor when she stressed that what the court had licensed anti-choice states to do to abortion rights other states, disfavoring different sets of rights, could do as well, specifically mentioning Second Amendment rights as potential targets of the technique Texas had used. Thus Governor Newsom wasn’t inventing anything new when, as he put it in a tweet, “if TX can ban abortion and endanger lives, CA can ban deadly weapons of war and save lives.”
SCOTUS is letting private citizens in Texas sue to stop abortion?!— Gavin Newsom (@GavinNewsom) December 12, 2021
If that's the precedent then we'll let Californians sue those who put ghost guns and assault weapons on our streets.
If TX can ban abortion and endanger lives, CA can ban deadly weapons of war and save lives. https://t.co/N5Iur9PEUZ
All progressive governors with legislatures similarly inclined should do the same. We’re not advocating tit-for-tat retaliation to match the Supreme Court’s recognition of one new way to render rights more vulnerable with our own recognition of another way to do the same. Rather, when the nation’s highest court opens a path, that path should be as open to blue states as to red. Refraining from following the path the Supreme Court has cleared would represent the latest failure of “Democrats playing soft,” as columnist James Downie put it.
Nor is there any principled distinction between using that path to restrict abortion and using it to restrict gun violence. The court made clear that its ruling wasn’t about abortion but about a procedural mechanism for insulating state laws from pre-enforcement challenge in federal court, regardless of the right at stake.
Now is the time to make a stand. 2020 broke ominous records for gun deaths — guns killed nearly 45,000 Americans — and 2021 portends to be even worse. Meanwhile, gun sellers and manufacturers have been left free to promote semiautomatic weapons using methods that play to racial fault lines, push gun sales to stratospheric levels, and profit in the aftermath of mass shootings and other tragedies, all without fear of financial repercussion. That’s because, while gun death rises steadily in America, US law has prohibited civil actions seeking damages from manufacturers, distributors, dealers, or importers of firearms or ammunition whose business practices lead to criminal homicide.
It’s ironic that the path the Supreme Court has opened for those urgently concerned to reduce gun deaths involves a new breed of civil lawsuit, but irony is no reason to refrain from the lawful options the court has now made available. Much as we detest the vigilante approach Texas devised to attack safe and legal abortions — and despise the Supreme Court’s blessing of that approach — we would be remiss if we were to decline the court’s invitation to use that same approach to protect the lives threatened by irresponsible firearms manufacture and sales. In this urgent moment, progressive defenders of human life need to play the hand they are dealt, not the hand they wish they held.
Correction: An earlier version of this column incorrectly included a link to a column by George Washington University Law School professor Jonathan Turley as an example of those who championed the Texas abortion law but oppose the California firearms initiative. Professor Turley has voiced misgivings about both. The column has been corrected and updated with a new link.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard University. Follow him on Twitter @tribelaw. Jonathan M. Metzl directs the Department of Medicine, Health, and Society at Vanderbilt University. Follow him on Twitter @JonathanMetzl. David Hogg is a founder of March For Our Lives, an organization started in the wake of the Parkland Shooting, and a student at Harvard College. Follow him on Twitter @davidhogg111.