A Texas law that took effect in September bans abortions once a fetal heartbeat can be detected, usually around six weeks of pregnancy. In a novel workaround, the state isn’t enforcing the ban. Instead, the law allows private citizens to sue medical providers who violate the law, as well as anyone else who aided in the abortion, from insurance providers to cab drivers. Plaintiffs stand to receive at least $10,000 from any defendant found liable, prompting legal experts to dub it a “bounty” law.
The Supreme Court has allowed S.B. 8, known as the Texas Heartbeat Act, to remain in place. This has prompted policymakers in some blue states to propose applying the bounty concept to the enforcement of gun restrictions that courts might otherwise deem unconstitutional. One of our readers apparently heard that New York is considering this option. This reader, named Robin, asked us, “Word has it that the New York Legislature is writing a law like Texas with abortion, but for guns. Is it true, and can it work?”
No such bill had been filed as of January 18, though state Attorney General Letitia James has said she is working on a proposal that would allow residents to sue violators of New York’s assault-weapons ban. And lawmakers and officials in at least two other states have likewise advocated applying the bounty concept to gun offenses.
By embracing a move they once condemned, are Democrats trolling Republicans, or are they trying to beat them at their own game? To help us figure this out, we spoke with two legal experts: Jake Charles, executive director of the Duke Center for Firearms Law, and Jon D. Michaels, a professor at UCLA School of Law. Here is some of what we learned:
How does a bounty law work?
Usually, someone raising a constitutional challenge to a law will sue the authorities tasked with enforcing it, such as police officers, state agencies, or government officials. But with the Texas Heartbeat Act, private citizens are effectively deputized to enforce the ban through litigation. The idea is to drive physicians out of business with the specter of costly lawsuits. The bounty provision is also intended to thwart challenges to the law’s constitutionality. If the government is not enforcing the new restrictions, it’s more difficult to get a court to strike them down.
How many states are considering bounty laws for guns?
So far, three states — California, Illinois, and New York — are considering proposals, though each is at a different stage of development.
In Illinois, a Democratic state representative, Margaret Croke, introduced a bill in September dubbed the “Protecting Heartbeats Act,” which would allow residents to sue manufacturers, importers, or dealers of firearms that are used illegally to injure or kill someone. Gun companies would be liable for at least $10,000 per victim and required to pay attorneys’ fees.
After the Supreme Court implicitly endorsed the enforcement-by-lawsuit tactic by leaving the Texas Heartbeat Act in place, California Governor Gavin Newsom seized on the decision to advocate using the same concept to enforce his state’s assault weapons ban. A conservative federal judge had ruled against the assault weapons ban months earlier. California is appealing that decision, but with the ban’s future in limbo, Newsom is calling for legislation that would allow private citizens to sue anyone who manufacturers, distributes, or sells assault weapons. He has also expressed support for using bounties against sellers of kits and components used to build ghost guns. State Assemblymember Mark Gipson said he planned to incorporate the governor’s ideas into a bill to be introduced in January.
While the Texas Heartbeat Act imposed new rules and directed private citizens to enforce them, Newsom’s proposals would merely create an avenue for enforcing existing restrictions through civil litigation. “That is the biggest difference,” Charles said. “The other is that Texas’s law is clearly unconstitutional under current Supreme Court doctrine. And California’s [assault weapons ban] is not clearly unconstitutional under Supreme Court doctrine.”
Charles added that it’s in Newsom’s interest to make his proposals seem more akin to Texas’s law than they actually are. “Because then he can say, ‘Look, Supreme Court, if you uphold this law, we can do this, too.’”
Michaels, the UCLA professor, said a true analogue of the Texas bill would ban new categories of firearms and allow anyone who helps violate the law to be sued. “S.B. 8 isn’t just targeting doctors and staff; it could be employers who give a pregnant person the day off, or the sibling or cabbie who drives them,” Michaels said. “So maybe not just [gun] manufacturers and vendors, but also other facilitators, like those who knowingly drove an armed person around town.”
What’s behind Democrats’ embrace of a Republican tactic?
Some Democrats see an opportunity to circumvent the unprecedented legal immunity enjoyed by the gun industry. The federal Protection of Lawful Commerce in Arms Act, or PLCAA, shields gunmakers and sellers from most lawsuits stemming from the criminal misuse of their products. New York Attorney General James argued last month that using private citizens to supplement gun enforcement efforts could offer a way around PLCAA — just as Texas’s abortion ban is attempting to get around the federal precedent set by Roe v. Wade.
Governor Newsom, meanwhile, may be trying to expose what he sees as the hypocrisy of the majority-conservative Supreme Court, which could decide this June to uphold S.B. 8’s citizen enforcement mechanism — and later strike down a blue-state bounty law for guns. “Newsom is not going to allow this new tool that the court has countenanced to be used asymmetrically — that is, just by red states — to undermine progressive constitutional rights,” Michaels said.
This double standard isn’t lost on the justices. In oral arguments for Whole Woman’s Health v. Jackson, the Supreme Court challenge to the Texas Heartbeat Act, Trump-appointed Justice Brett Kavanaugh expressed concern that S.B. 8’s citizen enforcement mechanism could be applied to guns. He pointed to a Firearms Policy Coalition brief arguing that the legal maneuver “will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets.”
Charles and Michaels both say they can envision a scenario in which the Supreme Court lets Texas’s abortion ban stand, but strikes down a copycat gun law originating in California or New York. “The court’s majority may hold guns in higher constitutional esteem than reproductive autonomy,” Michaels said.
What do the authors of the Texas law think of all this?
The Texas law’s lead sponsor, State Senator Bryan Hughes, has said he doesn’t think California’s proposal would succeed. The unique enforcement mechanism wouldn’t be “effective against firmly established constitutional rights,” he said, referring to the Second Amendment, which he said is “clearly in the Constitution.” Abortion access, Hughes is implying, isn’t.
But Michaels says that’s backward. The right to an abortion may not be specifically enumerated in the Bill of Rights — but neither is the right to an assault weapon or a ghost gun. “What Newsom proposes to regulate is conduct that’s less clearly constitutionally protected than the right to an abortion,” Michaels said.
Plenty of rights favored by conservatives weren’t enumerated by the founding fathers either, Charles said. “One that conservatives tend to like is a right to homeschool your own children, and the Supreme Court recognizes that under the same authority that it recognized the right to abortion: substantive due process.”
What other effects might the proliferation of bounty laws have?
Both experts said bounty laws could well exacerbate political polarization in the U.S. Michaels has argued that the bipartisan adoption of bounty laws is a recipe for “chaos” and could accelerate the erosion of democracy.
“With traditional regulation, the government is the chief enforcer, and that takes pressure off of individuals to do the potentially dangerous and divisive work of policing one another,” Michaels said. Bounty laws, on the other hand, “involve some degree of surveillance and investigation. You have to know someone is going to get an abortion, or carrying or storing certain firearms. That’s potentially all quite confrontational.” Michaels said he sees “very troubling connections” between the Texas Heartbeat Act and the fugitive slave laws of the mid-19th century, when the federal government offered a reward for the capture of enslaved people who had escaped the South — and fined anyone caught aiding in an escape.
Charles said encouraging citizens to tell on each other could deepen the nation’s partisan divide by fomenting more suspicion and distrust. “If you care about a functioning democracy, you shouldn’t want to pit citizens against one another,” he said.