The (Still) Unconstitutionality of the Texas Abortion Law

The Firearms Policy Coalition filed an Amicus brief supporting the Plaintiffs in the current lawsuit against Texas S.B. 8 set to go before SCOTUS. The entire brief is worth the read, if you’re a gun rights policy nerd like me…….but the conclusion is below:

This case is important not because of its specific subject matter of abortion, but instead for Texas’s cavalier and contemptuous mechanism for shielding from review potential violations of constitutional rights as determined by this Court’s precedents. It is one thing to disagree with precedents and seek their revision or reversal through judicial, congressional, or constitutional avenues; it is another simply to circumvent judicial review by delegating state action to the citizenry at large and then claiming, with a wink and a nod, that no state actors are involved.

From Amicus’s perspective, if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms. While the political valences of those issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and Casey, many States view Heller as wrongly decided. Those States, with the help of many circuit courts, have showed an ongoing refusal to accept the holding in Heller and a continuing creativity in seeking to circumvent any protections for, and to chill the exercise of, Second Amendment rights. It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms.

6 thoughts on “The (Still) Unconstitutionality of the Texas Abortion Law

  1. When the Texas Abortion Law “abortion” came to light the very next thought was that this formula would then be extended into other areas like the Second. I’ll not be surprised when the legislative line starts to form.
    To me the real “threat” is not that the law was created so creatively.. but rather that the Court and courts are jerking around with it and not making a “final” judgement and in doing so are also themselves furthering the Great Divide.

    Liked by 1 person

    • The Court’s actions (or inaction) is concerning. I’m actually more interested in the phenomenon of a camp that so aggressively promotes their own alleged sanctification of the Constitution…….would so explicitly formulate legislation that is so antithetical to that document.


      • I think we have to accept that people/organizations/groups/etc. will always attempt to circumvent the Constitution, pushing the envelope on its meanings and processes. It’s like I am reading this morning about this pre-Jan. 6th “command center” of Trump power minions, Giuliani, Bannon, Eastman, etc. all thinking that Pence as Vice President did have some authority to stall the certification acceptance of the votes as presented to the House on the session on January 6th. It was believed the stall could extend up to ten days. But look at it this way… if Pence had indeed done that on Jan. 6th.. the entire ruckus in the House would have exploded into and the whole shebang itself would have landed in the courts.. forcing a stall until a judgment was rendered.. and obviously the appeals time. The damn thing would have been such a process mess, I have no idea if the Parliamentarian intervenes, someone gets the Sargent-at-Arms? Then, to do what exactly? Pence saved our asses (FINALLY!) but he’s no charmer in all this.

        With Trump as president we’ve lost that singular element that surrounds the specifics of our Constitution… the traditions bound by a patriotic honor to WANT to follow the Constitution, not using it as a dodge by thinking it a barrier for personal gain.


  2. Welcome to my world.

    An unpopular law is proposed.
    The general sheeple go ballistic.
    The media join in.
    The UKGov retract the proposal.

    Till it all goes quiet. usually just before a Christmas parliamentary break.

    Then, on the back of another minor issue, BANG! the unpopular becomes real, becomes law.

    The general sheeple will bleat and protest (only not in winter), the media do their usual drivel but with little conviction as old news is not current news so not really worth the effort of another full on media blitz.

    So the deal is done and yet another bad law gets through.

    A democracy? Na, it never was, and never will be. Not until politics reaps the pain of making a mistake.


  3. Pingback: Well, that didn’t take long…. | Libertas and Latte

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