Pet Issues and Precedent, Continued

Alan Dershowitz illustrates my concern about the Texas abortion legislation being used as precedent for other issues, in Democratic monopoly states:

Consider this out-of-the-box proposal: Liberal, pro-gun-control states could apply the Texas bounty approach to gun control. New York or Illinois, for example, could declare that gun crime has gotten so serious that the private ownership of most handguns should be deterred. It would be unconstitutional for the state to authorize the criminal prosecution of those who facilitate constitutionally protected gun ownership. But the state could, instead, enact a gun-bounty civil law modeled on the Texas abortion law. It would empower any citizen to sue for $10,000 anyone who facilitates the sale or ownership of handguns.

Gun-ownership advocates would rail against such a law as circumventing Heller, just as abortion advocates are railing against the Texas law as circumventing Roe. But it would be hard for the courts to uphold the civil mechanism of the anti-abortion law without also upholding the identical mechanism in the anti-gun law.

Creating this “shoe on the other foot” challenge would bring home the dangerous implications of the Texas bounty approach which, if not stopped, could undercut the authority of the Supreme Court to enforce other constitutional rights.

Texas could, for example, next apply it to gay marriage — any private citizen could sue anyone who performed or facilitated same-sex marriages — thus circumventing Obergefell v. Hodges. New York could then apply it to Citizens United v. FCC and offer a civil bounty to sue any media outlet that ran corporate political ads. Any state could simply target any Supreme Court precedent it doesn’t like and deter its enforcement by authorizing citizens who oppose it to sue. This would empower every state to effectively overrule Supreme Court decisions, as some southern states unsuccessfully tried to do following Brown v Board of Education in 1954.

5 thoughts on “Pet Issues and Precedent, Continued

  1. CI… this raises a real problem for conservatives dancing in the Texas Law Streets…

    Why can’t a state like MA, CA or even NY just take the Texas law, swap out the word abortion for guns and call it good? If the law stands for lack of governmental standing and the back door use of citizen armies as a de facto is upheld, will conservatives support its use to push liberal causes?

    Why not just write a law saying in your state Abortion is illegal and let SCOTUS decide it cleanly?

    Probably because they know they’d lose.


  2. The real issue/difference is that Roe isn’t explicitly provided for in the constitution. The right to privacy in the 4A is how Roe attaches. Gun rights are not only explicitly enshrined in the Second Amendment, they have a far greater ‘identity’ in our culture than the controversial concept of abortion. Firearm ownership (and transfer) is also the express mechanism of last resort resistance to government over-reach…which such a law clearly is. There is a pretty apt adage that the first real move in tyranny is to strip The People of their ability to defend themselves. It’s been done repeatedly in history before the atrocities started; most
    infamously by the Nazis.

    While I absolutely think Texas’s end-around on abortion is unconstitutional and will eventually fail judicial review, I believe it is a far different topic than gun rights. Abortion is really a woman’s issue, one that is generally an option for the younger and less affluent. Guns are the enterprise of white males – a very different and far more powerful demographic. As such, gun culture is alive and well in rural America across all 50 states & it is quite sensitive to restrictions on their gun rights – legitimate or not. It will be resisted by ballots then bullets. Legislators KNOW this and are rightfully wary. The very right they would try to strip away patterning their law against Texas’s template would be used to resist such tyranny.

    Liked by 1 person

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