Kavanaugh: Could Theory Behind Texas Abortion Law Be Used For Gun Control?

(AP Photo/Andrew Harnik, File, Pool)

The Supreme Court’s going to take a close look at the Second Amendment on Wednesday of this week when it hears oral arguments in New York State Rifle & Pistol Association v. Bruen, a case challenging New York’s arbitrary and subjective permitting scheme limiting the right to bear arms to just a chosen few, but the Court touched on the Second Amendment on Monday afternoon as well, as justices heard oral arguments over a new law in Texas allowing average citizens to sue abortion providers if they conduct an abortion after the sixth week of a pregnancy.

It’s been noted by several individuals and groups, including the Firearms Policy Coalition, that the new law could be tweaked to provide an avenue for gun control activists to interfere with the right to keep and bear arms, and Justice Brett Kavanaugh appeared to hone in on that line of reasoning during today’s oral arguments.

Associate Justice Brett Kavanaugh questioned whether the Texas law would allow for states to write similar laws that infringe other constitutional rights, such as gun rights guaranteed by the Second Amendment.  A gun-rights group filed a brief supporting the abortion clinics because it fears similarly structured laws would limit its ability to ask courts to block gun restrictions approved in Democratic states.

Kavanaugh cited a hypothetical law that would allow the seller of an AR-15 to be sued for $1 million.

The attorney representing Texas in the case brought by abortion providers acknowledged that possibility, saying the state’s position “does not turn on the nature of the right.” In those cases, Texas Solicitor General Judd E. Stone said those who might face restrictions because of any such state laws could turn to Congress for new federal laws to protect their rights or for additional avenues to get into federal court.

I don’t know about you, but the argument that gun owners could rely on Congress for greater protections isn’t exactly reassuring to me, given that the House and Senate can’t even pass uncontroversial bills like continued funding for transportation and highways without threats of a government shutdown and calls from Democrats to nuke the filibuster.

And while Kavanaugh’s hypothetical focused on AR-15s, there’s no reason why lawmakers in a state like California, with an anti-gun supermajority in the legislature, couldn’t try to impose a Texas-style law allowing civil suits to be brought against anyone who sells a semi-automatic firearm or even a handgun.

We’ve actually seen something akin to the Texas law put in place in New York. In fact, that law allowing citizens to sue gun makers and sellers for violating the state’s public nuisance law was signed by former Gov. Andrew Cuomo before Texas Gov. Greg Abbott signed the abortion bill now facing Supreme Court scrutiny. To the best of my knowledge we haven’t seen any lawsuits filed on the basis of the new law in New York, but whatever decision the Supreme Court reaches with the Texas abortion law could end up having an impact on the legality of New York’s anti-gun measure if and when it does face its own court challenge.

Given the speed with which the Supreme Court has taken up the Texas law, we might not have too long to wait before we learn what the Court has to say here. I wouldn’t be surprised if the Court ultimately strikes down the law in question; not because the conservative wing of the Court has suddenly embraced the Roe v. Wade decision that found a right to an abortion in a penumbra formed by emanations of the Bill of Rights, but because of the unintended consequences to the enumerated rights that have been added to our Constitution since it was originally ratified in 1787. If a majority of the Court wants to weigh in on abortion, a case out of Mississippi that the justices will hear in early December would be a much better vehicle than upholding the Texas law and empowering anti-gun activists to use the civil court system to shut down access to our Second Amendment rights.