I’ve seen that argument in a couple of different places, so we’re digging into the debate on today’s Bearing Arms’ Cam & Co. There’s no doubt that the new law allowing private citizens to sue abortion providers is controversial, and there’s a lot of skepticism about its constitutionality, but could the law be tweaked by the gun control lobby to go after the right to keep and bear arms?
Professor Paul F. deLespinasse thinks so. In an op-ed at Newsmax, the political science professor warns that gun control activists could borrow from the anti-abortion legislation to target gun sellers instead of abortion providers.
The more cautious abortion opponents have avoided putting the issue squarely before the Supreme Court, fearing that some justices personally opposed to abortion might uphold Roe on grounds ofstare decisis — the importance of stable rules people can rely on.
Instead, they have enacted increasingly severe procedural limits on abortion, seeking to nibble Roe to death. But Texas has chosen to be “in your face” about it.
The Supreme Court therefore may not be able to evade the basic issue forever. It might either have to overrule Roe or strike down the Texas statute. I predict the latter.
Texas is playing with constitutional fire. Its approach is one that conservatives could never support as a general rule. It could also be used to protect other legislation violating the Constitution, including laws prohibiting ownership or possession of all guns.
Similarly, Damon Root writing at Reason believes gun owners should be concerned about the precedent set by the new law in the Lone Star State.
Conservatives should be just as outraged by this legal ruse as liberals are. After all, if the Texas scheme actually succeeds in the long run, what’s to stop an anti-gun state legislature from banning handguns in the home, in clear violation of SCOTUS precedent, and then placing state officials beyond the reach of federal judicial review by outsourcing the ban’s enforcement to an army of private-sector gun control activists? Most gun shops would probably go bankrupt overnight when faced with the wave of private-sector civil suits that such a state law would unleash. Is that the future that conservatives want?
Regardless of what you think about the issue of abortion, the Texas abortion law is a legal menace.
I’d argue that this might not be the future that conservatives want, but it’s the present we already have. Neither Root nor deLespinasse mention the fact that former-Gov. Andrew Cuomo and his anti-gun allies in the state of New York have already done something similar to what Root warns about. No, they haven’t passed a law banning handguns in the home, but the state has empowered private citizens to sue firearms manufacturers and retailers by changing the state’s public nuisance laws. As the New York Times reported back in June of this year:
The bill, passed by the Democratic-controlled State Legislature, is the first of its kind in the nation to specifically classify the illegal or improper marketing or sale of guns as a nuisance — a technical classification that state lawmakers say would open the gun industry to civil liability suits in New York.
The approach, if successful, could prompt other states to follow suit as many cities grapple with rising gun violence. Indeed, Gov. Phil Murphy of New Jersey has already indicated he supports a similar proposal.
The move comes a few months after President Biden reiterated his support of repealing a 2005 federal statute that gave gun manufacturers far-reaching immunity from being sued by victims of gun violence and their relatives.
The Texas law is an attempt to do an end run around Roe v. Wade, and the New York law similarly attempts to ignore the Protection of Lawful Commerce in Arms Act, which specifically precludes lawsuits seeking to hold gunmakers responsible for the actions of criminals.
To be fair, it’s not a perfect apples-to-apples comparison. The Texas law, for instance, allows abortion providers to be sued for conducting an abortion after a pregnancy has entered its sixth week. It doesn’t allow lawsuits against the makers of the doctor’s surgical equipment, however, which would be a more accurate analogue to New York’s new anti-gun law. In Texas, the party that’s responsible for the alleged harm is still the one facing legal repercussions, unlike New York’s law that empowers lawsuits against businesses that legally make and sell items protected explicitly by the text of the Bill of Rights if an individual obtains and uses one of those items to commit an act of violence.
Still, for those arguing that Texas’ new abortion law is going to trigger an attack on our right to keep and bear arms, my response is simply: too late. The attack has already been made, and the gun control lobby doesn’t need to get inspiration from a pro-life bill in a red state to implement their strategy of litigating the firearms industry into oblivion or compliance with their demands.