Our story so far: The Texas legislature wanted to restrict abortions to the first six weeks of pregnancy, but sadly for them that's unconstitutional. So they brainstormed for a while until they came up with a clever workaround: instead of banning abortions outright, they authorized citizens to sue abortion clinics.
Under normal circumstances the Supreme Court would make short work of this juvenile attempt to evade judicial review, but they didn't. Instead of calling it an obvious and frivolous subterfuge, the court's conservatives stroked their chins and declared it a tricky piece of constitutional law. They let it stand until they could hold hearings and hand down a final ruling.
Liberals immediately pointed out that what was good for the goose was good for the gander. If it was OK for Texas to use this method to restrict abortion, why couldn't some blue state use it to restrict, say, gun rights? California Governor Gavin Newsom was listening:
If states can shield their laws from review by federal courts, then CA will use that authority to help protect lives.
We will work to create the ability for private citizens to sue anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in CA. pic.twitter.com/YPBJ00vN6z
— Office of the Governor of California (@CAgovernor) December 12, 2021
This should be fun, assuming the legislature goes along. My only advice is to (a) do it quickly, since no one cares about the actual policy, and (b) make it as identical to the Texas law as possible. The Supreme Court's conservatives will undoubtedly jump on even the smallest difference as a reason to quash it.
Other than that, I'm all in favor of giving this a try. At the very least, it will force the court's conservatives to twist themselves into pretzels figuring out a way to claim that this is totally different from the abortion law. That should give us all a few minutes worth of chuckles.
That should give us all a few minutes worth of chuckles, AND a rock solid justification for expanding the court asap.
Sounds like we need a James O'Keefe to play games in Texas, playing on people's natural presumptions to create silliness. (I wonder if Texas is going to force pregnancy tests for all travelers departing Texas) I can only imagine the departure areas at DFW and Love Field. With his purty mouth, the TSA (or whoever conducts the tests) could tie up Cruz for a while.
I don't know that this could sound like fun.
The never ending farce called governing the United States of America !
Your Supreme Court was supposed to be the “apolitical” branch of the government. The framers of the Constitution intended the Court to be insulated from the chaotic process politics was at the time and still is .
They totally misjudged it … on this also.
Today is your Supreme Court manned by politicians dressed up in black robes impersonating judges
The U.S. Supreme Court justices hold more power than all of their foreign counterparts . It is the justices who now decide the controversial issues of our time. Issues like abortion and same-sex marriage , gun control, campaign finance voting rights
Your Supreme Court I’d de facto manned by politicians dressed up in black robes impersonating judges
That much power in the hands of individuals is an abomination in a democracy of the 21th century but that’s how your archaic Constitution is drafted
An inconvenient truth from a Swede
Why is it that a well-educated Swede understands our Constitution AND our politics better than 45% of our own citizens?
Because the poster is not what it claims to be.
It looks like the Kevin Drum comment section...
[Puts on sunglasses]
Got Sweded.
[A weird mashup of Mos Def & Tenacious D plays.]
Because the Swedes (along with lots of other Europeans) love rubbing our inadequacies and flaws in our faces. It distracts them from their own xenophobia and other social issues/problems.
""Why is it that a well-educated Swede understands our Constitution AND our politics better than 45% of our own citizens?"
Because it is very difficult for 45% of our citizens to understand something when their interests and advantages depend on not understanding it (with apologies to Upton Sinclair).
The primary difference seems to me to be the legislative system. There are too many sides in your parliament for one to stack your courts in their favor.
One curiosity though, apparently there is no mechanism for judicial review in Sweden as the opinions issued by your body are advisory. Is it due to greater specificity in your constitution or is it assumed that voters will remove a ruling group that goes too far?
It’s not easy to compare our ways in just a short comment because we are doing things completely different in Sweden.
We are having two supreme courts but none of them is a Constitutional court their task is to deliver precedents to lower courts
Also, our courts are totally independent from the government. Our attorney general is not the head of the courts. Courts are an independent agency
Judges are not appointed by the government or elected they are appointed by a board consisting of five judges (or retired judges) two lawyers and two common citizens and they are appointed out of merits they don’t come with a suffix describing their political preferences.
One must also remember that our PM/government is having extremely limited power compared to your President.
It’s amusing when US right wing extremists are scolding our system of big government when we probably are having the smallest Government Offices in the western world and the power of our government is negligible compared to your government.
The PM , as a person, has the right to decide on what to have for lunch and that’s it !
If a minister should try to interfere in the doings of a public agency would all he’ll break loose , headlines for a week and probably a resignation
All power rests in the arms of the parliament and that ensures no one is able to go rouge since it’s not that likely one single party will be awarded +50% of the seats
When a law is initiated is it usually (but not necessarily) coming from the government. The first draft is as a rule being scrutinized by organizations which represents the ones most affected by it and if it draws a lot of criticism is it usually reworked .
When the government deems it to be throughly prepared will it be assessed by a team of three experienced judges (lagrådet) (not necessarily the same persons at all times) who will check if it’s in accordance with the constitution before it’s up for a vote in the parliament
… and you are correct even if the draft is criticized by the judges is it possible for the government to put it up for a vote but it needs a majority in the parliament.
It’s extremely rare for a government to do so but it has happened.
A lot of words but a very incomplete answer
A good night to you my friend
One clarification. The lower courts are established by our legislature but are headed by the Supreme Court. Not sure if you implied ours were, but the Federal AG has nothing to do with administration or make up of the court system. He is essentually the top prosecutor a court official appointed by the executive.
Ah my information is the Swedish judge choosing board was formed by the government, but you say merit so I was mistaken. As a matter of personal interest I'd appreciate hearing more about that. I personally favor continental law systems over Anglo-based ones despite being trained as an attorney.
Inconvenient, but definitely true. We can also mention the centralizing of power in the executive. Due to article III lifetime appointments, including the Supreme Court, the executive has significant control over the Judiciary, a supposedly independent branch. Even more control is exerted by the Justice Department, as we have seen in recent years. When the Justice Dept becomes a lapdog for the president and acts as his personal law firm, that's very bad.
Congress has continued to relinquish its powers to the executive, too. By its refusal for many decades to address foreign conflicts, it's given up its sole constitutional power of declaring war. Now the president gets to send troops anywhere, for decades at a time, if desired. By its Republican-driven refusal to do anything, to prevent all laws from passing, the Congress has encouraged executive overreach, just to get stuff done. And let's say no more about the Senate, a boil on the rump of democracy.
Extreme partisanship has caused a somewhat rickety, 1700s-vintage government to become almost totally non-functional, and easily controlled by an executive with no morals, ethics, or scruples. Not to mention the execrable Senate.
The Founders generally thought the constitution would be changed more often. Sort of like the various French Republics. They'd be astonished at how little has changed and how much it gets "revered" then again all we have as a founding myth is that.
I agree. Many amendments were added to the US constitution in the first several years of the new government. Now, a common misapprehension of the "sacredness" and even "perfection" of the document seems to have taken hold. That, and "originalism" which assumes that the "original intent" of The Founding Fathers is what matters, not the actual wording or application to different times.
(Heh. If that was the case, then the big rationale for Amendment 2, enabling posses to go after escaped slaves, is no longer valid and it can be repealed. Right??)
I don't think "extreme partisanship" is the issue. You want to see partisanship, read up on the feuds between the parties in the early decades of the Republic -- Federalists vs. Jeffersonians, etc.. Partisanship is fine as long as both sides agree to abide by democratic norms and the rule of law. Today, one party has essentially jettisoned that pact and embraced authoritarianism and outright corruption as public policy preferences.
The problem is that the US Constitution is collapsing into minority rule as the populations of the states diverge. That problem is built into the Senate and into the Amendment process leaving no obvious escape that doesn't involve the minority choosing to give up it's advantage.
By 2040 will about 70% of Americans live in the 15 largest states and will subsequently have only 30 senators representing them, while the remaining 30% of Americans will have 70 senators representing them.
… just saying
Well, that's a good point. "Partisanship" per se is fine, as long as there's a consensus that the good of the people and the country remains the most important thing, and that compromise can be acceptable.
Republicans care about the good of the people and the country, it's just their definition of people and good is vastly different!
Maybe sturestahle really is Swedish, given his ignorance of American history. In 1789 the framers of the constitution did not foresee the supreme court would have the power to strike down federal and state laws. This only emerged in 1803 under the leadership of the fourth chief justice, John Marshall. Marshall was careful to avoid direct conflict with the executive branch led by President Thomas Jefferson. By establishing the principle of judicial review while avoiding inter-branch confrontation Marshall reinforced the principle of separation of powers. At times in our history the supreme court has served the nation well (Brown v, Board of Education in 1954, the breakup of Standard Oil in 1911), other times not so well (Plessy v. Ferguson in 1896, Dredd Scott in 1957). It seems like instituting term limits of justices would be a good step to stop given the Republican strategy of appointing very young very radical polemicists totally lacking in judicial temperament.
Good points.
I agree with Ken Schultz that you’ve made some good points, with which I entirely agree. But it also seems to me that the peculiarities (some might say ‘structural defects) makes some form of Marbury v. Madison inevitable. Having Congress and the President as opposed, offsetting, and increasingly coequal branches creates so many standoffs that it’s hard to see how the government could function without regular civil wars or evolving into a full presidential system or a parliamentary system (difficult because of the semi direct election of the president). So I think eventually the court would be forced to assume the role of neutral referees.
I did a school paper once on Marbury, and IIRC, the consensus of the sources I used then was exactly what you say - the Court’s assertion of judicial review was inevitable.
Term limits are explicitly banned by Article III.
"Guns are a sacred right clearly enshrined in the Bill of Rights but abortion was just found in the 'penumbras' or some such so it's totally different. Boom. Problem solved."
I think the California stunt is worth doing as part of a long-term strategy of de-legitimizing the Supreme Court as currently configured, but let's not expect the Republicans on the court to have any shame on this particular point.
Yes, they will fall back on the 2nd amendment.
Not the whole 2nd amendment, only the second half of the 2nd amendment...Can't have regulated militia's, can we now...
As I read the Second Amendment it is moot. A well regulated militia is no longer necessary to the security of a free state. We have the US military and state National Guards for that. Thus there is no longer a right to keep and bear arms.
Then maybe Black Panthers need to start showing up like the Bundy Clan at Statehouses again.
Followed by the court again making some extraordinarily fine distinctions, this time about which "people" have the right to keep and bear arms.
I think that's probably a correct appreciation of the trend in the Supreme Court's decisions. As the country moves more openly towards becoming a "Herrenvolk democracy" I think it's only natural that the court would be more open and proactive in interpreting the constitution to say that the Herrenvolk have constitutional rights such as the right to keep and bear arms but that others, as second class citizens, simply do not.
Something something at the time the Constitution was ratified only white landholders could have guns therefore something something
Clarence Thomas has already told Gorsuch that he's getting too old to hunt anyway, so losing his gun rights won't really matter.
Just so. Only the master race has the constitution right or need to have guns. Basically, I think the future of America is something that’s going to look a lot like the post-reconstruction, Jim Crow south. But with better euphemisms, so probably not “master race” but “Americans” with the shared understanding which will remain unspoken in the media that only certain people qualify as real “Americans”.
Ahem, the correct term for Herrenvolk now is ‘legacy Americans’. I would have thought that that would refer to Native peoples, but no, not in *ucker Carlson’s usage.
I stand corrected. If anyone who is au courant on how his people are to be called it is surely Tucker.
The fact that you can go to a Starbucks in California without encounter "open carry" lunatics is a debt which we owe to the Black Panthers.
George, many years ago you led me to this essay, which I read periodically:
https://weeklysift.com/2014/08/11/not-a-tea-party-a-confederate-party/
It seems to me that if this Texas law is allowed to stand it will be the final victory of the South. We will no longer be the United States we will be a Confederacy of States.
My own thought is that the Supreme Court considers it to be a sort of placeholder and will make rendering a decision moot because they will have overturned Roe.
Seeing this & the RealClearPolitics invasion of the PoliticalAnimal comments section today, I miss Nancy Le Tourneau's knowing presence from having grown up in & matured out of nightwing kookery.
After she left I rarely go to the Washington Monthly site. I do continue to read her here:
http://immasmartypants.blogspot.com/
I think you are right. The conservatives will eventually void the Texas law because of all the cans of worms it opens, but by refusing to stay, they save a lot of fetal lives in the meantime.
Yeah, this sounds right to me. Of course it may be of value to have the court's "conservatives" say this outright in black and white.
The second amendment does not say that citizens can have guns. This is a newly invented reading created out of whole cloth by Scalia.
With the addition of Trump's justices SCOTUS has really turned into a political side show.
I'm all in favor of California outlawing assault weapons and high capacity magazines and more a la the Texas two step.
This won't work, because as every totally nonpartisan federal judge knows, the US constitution requires everybody in the country to carry an assault rifle. Also there is no mention of a "well-regulated militia" anywhere in the 2nd Amendment. So go away, Governor Newsome, with your silly little ploy to take away the God-given right to pack heat.
It's right there in the Bible: "Blessed are the well-armed, for their genital dimensions shall be perceived as larger..."
This is the type of comment that makes me wish we could upvote....
I wish to copy and redistribute your quoted comment. Okay?
+10
I agree with Mr. Jones, Gun Nuttery as now constituted is an out growth of Heller, and so a Supreme Court created right as much and equally so with Abortion.
Have at it.
Cage match!
Traveller
How difficult was it for you to admit this?
This is a great idea, and California is the right state to take the lead.
Also, it's a fight, and Progressives need to see the people they elect fighting for them, one of many things the GOP is much better at doing.
"Progressives need to see the people they elect fighting for them..."
Exactly.
I’m not sure I understand the Texas enforcement of anti-abortion laws. Could red states counter with laws banning gay marriage in the same manner? Could Jim Crow laws return? Could states make laws banning political parties? Ban women from voting?
This is a real question.
I don't think anyone really knows because the texas law makes zero legal sense and at this point how far it can go just depends on the vagaries of the right wing majority on SCOTUS. There is no coherent legal framework or logic we can reference to guess what they will decide is constitutional or not.
It is indeed a real question because what the court seems to be tacitly allowing is a legal workaround to the right to seek redress and legal relief from a public law via the courts. It's a complete short circuit of the legal system. The court has basically said states can pass whatever they want, constitutional or not, and the only solution is to elect different representatives to repeal it. But what if you gerrymander the shit out of the state, so it's virtually impossible to elect anyone from the other party? Oh, that's ok too, according to SCOTUS. See? The system works.
The liberal justices are still picking their jaws up off the floor, but here we are.
If the Texas law continues to stand then yes. This is an end-run around literally any Federal law or court ruling because a right you have no means of enforcing is a right you do not have. This is why I always tell people (though no one wants to believe it) that the right to sue is the most fundamental right of a free society.
The right to sue is one thing. The ability to do so is another. Attorneys are extremely expensive and unless you are lucky enough to get free representation or an attorney will take your case on a contingency basis the “right to sue” will ring very hollow. Just a legal way for rich people to be bullies.
It is also literally the only mechanism a free society has for allowing individuals to assert their rights when their rights are being denied. To me what you are saying is equivalent to "free speech is not important because a lot of people say annoying things". If that is not what you are saying then I'm not sure what your point is.
A while back when there was such a thing as shops that repaired VCRs, the one I went to was Macvideo. The guy who owned/ran the business was named McDonald and everyone called him “Mac”. He got a letter from the McDonalds hamburger attorneys telling him he couldn’t use the name. He offered to change it to Mac’s Video. They refused, threatening to sue. I think if he had gone to court he could have won. Nobody thought he was selling food. He had offered a fair compromise. But if he had gone to court it would have cost him thousands of dollars. Just hiring an attorney would have cost him more than he could afford. So he changed his business name to All Video Repair.
People who are rich and big corporations have attorneys on staff and can bully little guys with just the threat of a lawsuit. Ask small contractors who did work for Trump. A civil lawsuit could drag on for years. Who has the time/money/energy to fight?
I see some election officials are suing right wing web sites for defamation. If they don’t have some attorney working on contingency or have some support from a deep pockets benefactor what chance would you give them? It will, I’m sure, take many years to litigate and if they have to pay for it themselves it would likely bankrupt them. In the mean time their lives are endangered because of right wing lunatics who believe they stole the election from Trump.
Which is why trump has used suing those lacking his misbegotten resources as a mainstay of his lifelong "winning."
Yes.
As long as you can write the law so it excludes government officials, I think it would work under this framework.
The government can't stop an officient marrying two people, and the government can't stop the couple from getting married, but an individual citizen could sue the officiant for performing the wedding. I doubt they'd go after weddings first, though.
I think it's more likely that they'd write laws allowing a citizen to sue a landlord for renting an apartment to a same-sex couple. This will probably happen most quickly in places that do not currently have legal protections for LGBTQ renters. You'll probably see similar things related to non-gendered public restrooms pretty fast.
That this is even a thing tells us how far we've fallen. Thanks, Republicans.
Unregulated gun ownership is enshrined in the Second Amendment, where as the right to not have the government seize your uterus and make you carry every pregnancy to term whether or not it is unwanted or may damage your health or kill you is just an "implied" right -- "privacy" or some such twaddle -- which a bunch of old white men in Texas are free to limit as they see fit. (TM)
There. I just wrote ACB's majority opinion. She may send royalty checks to JTE21, c/o.....
This is a good idea. Aggressive moves like the those of the Supreme Court frequently have downsides for those making the moves.
Use the overreach on the abortion issue to shine light on the gun control issue, and get it back in the news. Depending on your perspective, this is arguably the more important issue anyway.
And make those Republican "politicians dressed up in black robes impersonating judges" go into rationalizing overdrive for all to see.
I thought until recently that the blowback from the Texas abortion law would make SCOTUS and the GOP hesitant to push the envelope on repealing R v W, but it doesn't seem to be coalescing, from what I see. Middle and upper-class women will always have abortion access (as they did before RvW) due to economic privilege, especially now when abortion medications are pretty readily available online and elsewhere, so they don't seem worried. It's poor women who will be screwed by these laws, but politicians these days know perfectly well they will pay virtually no political price for outlawing abortion again, while energizing their anti-abortion base even more. Low working-class and poor voter turnout and gerrymandering will keep them nice and safe.
Maybe I'm wrong, but I remain somewhat astonished with how sanguine the electorate seems to be about these developments so far.
Just below the surface of the informed electorate a slow panic is brewing. Dems are called communists and threatened with death, while the Select Committee on Treason issues sternly worded letters.
The uniformed electorate will not see it coming for a decade [if at all], that their right to a fair anything will have been taken away.
Empires don't last forever. Most seem to just wither and fade away. Ours may have a rerun a la 1860.
I was smiling when I heard Newsome on the TV make the announcement. Of course we all should have expected him to do just this. It reminds of the way he gay-married people in San Francisco back in the day. That stunt actually helped move things forward so who knows what is going to happen this time around.
If the law stands it is still a small net positive (I consider it possible that a majority of the conservatives would sacrifice assault if they can get their way on abortion. Guns are important to them but abortion is their very raison d'être and assault riles are a small part of the gun problem). If it gets declared unconstitutional we all have a right to laugh at Roberts and Co. And even the historians of centuries to come will have a lot of fun out of it.
I want a law that allows anyone to sue someone for not wearing a mask inside a public facility.
In that case, California should use the "Texas Loophole" to ban all guns.
"New permutations of S. B. 8 are coming."
--Sotomayor, in her opinion (more of it below)
The Newsom proposal may be a farce. But the Texas law and the Supreme Court decision are both farces, and the best way to fight that is do exactly what Newsom plans to do.
Will the Supreme Court go along with it? By the time the California case gets there, a woman's right to choose will no longer be the law of the land. Texas will have an easier path to get rid of abortion. This kind of nonsense will be struck down.
States' rights can only go so far, after all. If a future GOP Congress decides that everyone should have the right to drive the tank of their choice, fitted with the latest in antiaircraft technology, the Court will likely find that's legit under the 2nd Amendment, and each state's DMV will be forced to accept registration applications immediately.
Sotomayor opinion, p. 36 ff
https://www.supremecourt.gov/opinions/21pdf/21-463_3ebh.pdf
This choice to shrink from Texas’ challenge to federal supremacy
will have far-reaching repercussions. I doubt the Court, let
alone the country, is prepared for them.
...
This is a brazen challenge to our federal structure. It ech-
oes the philosophy of John C. Calhoun, a virulent defender
of the slaveholding South who insisted that States had the
right to “veto” or “nullif[y]” any federal law with which they
disagreed.
...The Nation fought a Civil War over that proposition, but
Calhoun’s theories were not extinguished. They experi-
enced a revival in the post-war South, and the violence that
ensued led Congress to enact Rev. Stat. §1979, 42 U. S. C.
§1983.
...
S. B. 8 raises another challenge to federal supremacy ,
and by blessing significant portions of the law’s effort to
evade review, the Court comes far short of meeting the mo-
ment. The Court’s delay in allowing this case to proceed
has had catastrophic consequences for women seeking to
exercise their constitutional right to an abortion in Texas.
These consequences have only rewarded the State’s effort
at nullification. Worse, by foreclosing suit against state-
court officials and the state attorney general, the Court
clears the way for States to reprise and perfect Texas’
scheme in the future to target the exercise of any right rec-
ognized by this Court with which they disagree.
This is no hypothetical. New permutations of S. B. 8 are
coming. In the months since this Court failed to enjoin the
law, legislators in several States have discussed or intro-
duced legislation that replicates its scheme to target locally
disfavored rights.5 What are federal courts to do if, for ex-
ample, a State effectively prohibits worship by a disfavored
religious minority through crushing “private” litigation
burdens amplified by skewed court procedures, but does a
better job than Texas of disclaiming all enforcement by
state officials? Perhaps nothing at all, says this Court.6
Although some path to relief not recognized today may yet
exist, the Court has now foreclosed the most straightfor-
ward route under its precedents. I fear the Court, and the
country, will come to regret that choice.
...
By so doing, the Court leaves all
manner of constitutional rights more vulnerable than ever
before, to the great detriment of our Constitution and our
Republic.
Nah, that's the arms bearing the milita, not the militia bearing arms.
The problem is that the US Constitution is collapsing into minority rule as the populations of the states diverge. That problem is built into the Senate and into the Amendment process leaving no obvious escape that doesn't involve the minority choosing to give up it's advantage.
Well said. I don't see any way to avoid the abyss.
One little problem with Newsome's idea is that there is a federal statute prohibiting suits against gun makers. On the other hand, it seems to me that it would be possible to create a right to sue for the emotional distress that the sight of someone carrying a gun causes.
Does that include gun sellers? Buyers?
The current law just exempts gun manufacturers from lawsuits when their guns are used in a crime. Other types of suits can go forward.
I think you're missing the paradox (or gross hypocrisy) of the Supreme Courts approach to the Texas law. The key point is that Texas isn't outlawing abortion, just creating a "private cause of action" which establishes a supposed right for private individuals to sue without being damaged personally but also without regard to the fact that abortion is still a constitutional right (which would put it on a far stronger footing than federal legislation protecting gun makers).
In any case, just as the Texas law supposedly doesn't outlaw or even burden the right to an abortion, the proposed California law would not burden or impose liability on gun makers; it would simply create a private cause of action against, say, selling certain types of guns or large capacity magazines. Like the Texas law, damages and the right to legal fees would be specified in the law.
If I'm reading both the CJ's remarks and those of the dissenters correctly, Roberts is warning that the majority is essentially enacting Calhoun's nullification theory of state's rights into the constitution. Which means that any state can essentially ban any constitutionally protected activity just by creating a private cause of action which would chill that activity because of the fear of lawsuits.
That's exactly the point. California won't be suing gun makers for the harms their gun cause. Private individuals will be suing them for different things that almost certainly aren't covered.
Plus, as iam4man points out, there's others within the gun community who aren't shielded by that law. Plus, giving people the right to sue owners, makers, and sellers of, for example, high-capacity magazines or certain kinds of firearms, or really anything, would seem to be within the ambit of the Texas law which the court essentially upheld.
Interestingly, the court's upholding of the Texas statute (in all but name) might make the pending cases about gun control moot. After all, a state no longer needs to be able to directly regulate or prohibit something to essentially outlaw it. NY, NJ, and Illinois could easily follow California's lead if they lose the right to regulate gun ownership.
FYI: This is a surprisingly good article which makes a powerful case that "today’s national conservatives, like the Redeemer Democrats of the insurrection of 1876, endorse 'herrenvolk democracy.'" Well worth reading in spite of the source.
https://www.libertarianism.org/articles/insurrectionary-ideology-national-conservatism
The effect of this will likely force the SC's hand. They will have to rule that:
- Roe was wrongly decided and there is no constitutional right to an abortion at any time, therefore the Texas statute does not interfere with any federally protected right. They may even have to rule that abortion is barred by the 14th A and therefore the Texas statute protects a federal constitutional right.
- the California statute by contrast interferes with the constitutional right to bear arms.
You raise an interesting point. The threat of the California law might force the court's hand much earlier and far more explicitly than I think the Republicans wanted. I think that the plans for the Mississippi decision was to very clearly overrule Roe and perhaps also Griswold but very subtly; Roe would still be "good law" but everyone would know that, in fact, there are no longer enforceable rights under Roe and the states would then act accordingly. Essentially, the way the Roberts court gutted voting rights—still on the books, but meaningless, and the states understood that they had a green light to gerrymander and suppress black votes.
On the other hand, it's hard for me to see how the proposed California law burdens the constitutional right to have guns any more than the Texas law interferes with the constitutionally protected right to an abortion. If you have some kind of analysis to support that position, I'd like to hear it
On the other hand, it's hard for me to see how the proposed California law burdens the constitutional right to have guns any more than the Texas law interferes with the constitutionally protected right to an abortion.
The fact that it's hard for you to see this hardly means five right wing jurists with unlimited legal research resources can't gin up a plausible (to the Federalist Society and Laura Ingraham) justification.
We know that the effect of the Texas abortion law is to burden the right to an abortion by having the fear of being sued deter both women in needs of this procedure and their doctors, clinics, and Uber drivers. This has been amply demonstrated and has even been acknowledged by the authors of the Texas law. The state has essentially outsourced the harassment and punishment of women and abortion providers but the clear effect has been to completely shut down abortions in Texas.
Similarly, the proposed California laws burdens the “right” to private gun ownership in much the same way. In the abstract, people can still own guns but if there’s created a private right of action to allow private citizens to sue others for the (for the sake of simplicity) “tort” of owning a gun and be forced to pays damages of, say, $10,000 per day of gun ownership, nobody an really buy a gun, possess a gun, of run a gun shop. The right exists but it’s suicidal to attempt to exercise that right. In my mind that represents an immense burden on the exercise of that constitutional right, be it the right to an abortion or the supposed right (created by the asshole Scalia) to own a gun.
"The California law is a crude attempt to get around the rights of Americans spelled out in the constitution" - Alito et al.
"But the constitution also gives women the right to have an abortion!" - California
"Wrong, as you'll learn when you read our decision in 'Dobbs v. Jackson Women's Health Organization'."
In other words all Newsome has done is close off any possibility the Supreme Court might allow the Texas law to stand while upholding 'Roe v Wade'.
Too clever by half. There's a real chance Republicans will have done political harm to themselves with their hardline anti-abortion policies. Now Democrats are set to obviate a possible political advantage in a futile gesture.
(I'm not a pessimist with respect to bringing common sense firearms laws to the country—in the fullness of time. But it's clear the absurdist interpretation of the 2nd amendment by the Supreme Court means in the short-term it's a non-starter. And most of the evidence suggests attempts at gun restrictions are politically perilous for Democrats).
My concern is that the Texas law has given liberals/progressives an awful new idea for how to write laws to control groups and citizens they disapprove of. Can this cat be put back in the bag?
A bounty system where vigilante plaintiffs can collect cash for reporting disapproved behavior is no way to govern a society.
It is different because it is guns.
Dahlia Lithwick at Slate has already pointed out that at least Alito appears to find a fully armed public desirable, leaving it to juries to decide case by case who shot first and who felt threatened by whom. I'm going to go out on a limb and predict that whoever is left standing is innocent.
If I had to guess, the argument of last resort will be that guns are an enumerated right and abortion is not.