Gavin Newsom, California’s governor, is planning to turn the tables on the Supreme Court, using the same dodge Texas used to abolish abortion rights to abolish the already bogus gun rights.
In their rush to permit the state of Texas to deputize private citizens to bring lawsuits against women seeking abortions and their abortion providers, the U. S. Supreme Court left the door open to some deliciously unexpected payback. California Governor Gavin Newsom now wants to take that legal precedent and use it to allow private citizens to sue manufacturers of assault weapons and ghost gun providers. When New York Attorney General Letitia James heard about Newsom’s plan she went to her team and told them, “We need to follow his lead.”
It won’t work, though it’s certainly worth doing if only to expose the hypocrisy of the current Supreme Court.
Back in law school the professors used to talk about “distinctions without a difference” and “result oriented” decision making. The current court is quite adept at making the former, and is certainly infected with the latter. The court will find a way to distinguish the two situations, and gun nuts will have no problem getting what they need to shoot up schools, shopping malls, or other venues of their choice. I can think of a bunch of bogus distinctions, though I won’t bother to set them down, as I don’t want to decrease the court’s workload.
It is also the case that there is something to be feared if the court upholds Newsom’s proposed law. You can likely use the same dodge to undermine any constitutional right, not that I’m conceding that owning a gun is in fact a constitutional right. Why not allow private citizens to sue any newspaper that prints something that offends the right wing sensibility in some fashion. How about allowing suit against any church or individual who refuses to accept Our Lord Jesus Christ as his or her personal savior? When the court upholds the Texas law it will essentially be rolling back all the precedent that held that the Fourteenth Amendment incorporated most of the provisions of the Bill of Rights. Recall that prior to the Fourteenth Amendment, individual states were free to impose any limit on free speech they wanted, to have an established church, etc. As a side note, the Second Amendment is one that should obviously not have been incorporated, given it’s introductory clause, since it clearly envisions regulations by the states.
The right is already planning to use the tactic to squelch speech it doesn’t like. Expect more of the same.
Update: Elie Mystal agrees with the gist of what I said above.
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