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Op-Ed Ponders Whether TX Law Is Template For Gun Control

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When Texas passed their controversial abortion law, they hoped they’d found away around Roe vs. Wade. The state wasn’t actually doing anything about abortion. The courts would, with the help of private actors.

It’s a novel approach, but one which some have expressed concerns about being used for things like gun control.

To be fair, it’s a valid concern. After all, the anti-Second Amendment types would love to find a way to really stick it to gun folks, only that pesky Constitution keeps getting in their way. The last thing we need is anyone getting the bright idea of turning this on us.

Unfortunately, someone actually has gotten it.

Texas’s highly restrictive abortion law, SB8, was designed to sidestep all the reasons the Supreme Court might be forced to invalidate it under Roe v. Wade. Consider, for example, its unusual enforcement mechanism: The law provides that anyone in the country, except state and local officials in Texas, can sue anyone who performs or “aids and abets” an abortion in Texas for a $10,000 reward.

It goes without saying that a second Supreme Court opinion allowing SB8 to stand would be catastrophic for reproductive freedom in Texas and any other states that adopt similar legislation. What’s being overlooked, however, is the seismic impact that such an opinion would have on constitutional rights more generally. After all, the 14th Amendment currently protects not only abortion but many other individual constitutional rights, like same-sex marriage, gun rights, and religious freedom, from state interference. (While most people associate gun rights and religious freedom with the 2nd and 1st Amendments, respectively, those amendments bar the federal government from infringing on one’s right to bear arms or exercise religious beliefs. It is the 14th Amendment that incorporates those same bars against stategovernments.) If the Supreme Court chooses to uphold SB8, it will leave not only the abortion right up to state legislatures but most individual rights we have come to know.

There may be a silver lining for those who champion progressive causes, as conservatives aren’t the only ones whose policy efforts have been stymied by the courts. Remove the judiciary from the picture and suddenly left-leaning state legislatures might be able to pass gun regulation, campaign finance restrictions, antidiscrimination laws and more, just by leaving the enforcement to private actors.

Imagine if SB8 were about guns instead of abortions. The Texas law provides that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child . . . or failed to perform a test to detect a fetal heartbeat.” Replace “fetal heartbeat” with “background check” and “perform or induce an abortion” with “sell a firearm” and perhaps we have a law the Supreme Court will leave alone, at least for a while. Texas Right to Life has stated that SB8 is not “against the women” but against “the abortion industry itself.” If that’s true, this would be a law not against gun owners but against the gun industry. And that’s constitutional, . . . right?

You had to know it was coming.

See, what you have to understand about politics is that any tool you use can be used against you. And since gun sales aren’t always conducted by gun stores, that means an anti-gun version of SB8 would likely impact private sellers of firearms.

Oh, sure, you might well have done everything right, but lawsuits are expensive. Even if you can prove everything, you still have to hire a lawyer and go through all the legal motions. Sure, it may be expensive for them, but it’ll empty your pockets as well.

Trust me, it’s not a lot of fun.

Yet under such a law, those lawsuits would still be legal.

Now, imagine that instead of “sell a firearm,” the wording was “provide a firearm.” That’s much broader and could implicate people who forget to lock their cars or who have their guns stolen in a burglary.

Needless to say, this is something that wasn’t considered in Texas and a lot of people need to stop and rethink their support of SB8, not because of abortion but because it can be used against gun owners.

If it survives legal scrutiny in the courts, we will see these laws coming for us. Mark my words.

Nov 26, 2021 10:30 AM ET