The fight over abortion reached new levels in Texas this week, but it’s likely to spill over into another hot-button issue: gun control.
That’s because the Texas pro-life bill has struck on a novel strategy. And that strategy saw success this week. It managed to short-circuit efforts in the federal courts to get enforcement blocks put into place before the expansive abortion ban went into effect. Even the Supreme Court decided against intervening at this point.
And that success will breed copycats.
Texas used a new enforcement mechanism to confound its opponents in court. Instead of making it a criminal offense to perform or assist in carrying out an abortion after 6 weeks and relying on government agents to enforce the ban, they made it a civil offense and empowered regular people to sue as an enforcement mechanism.
This complicated things for pro-choice activists fighting the law. It is much easier for a court to temporarily restrain a government agent from enforcing a law while the case makes its way through the legal system. But it’s a lot harder to enjoin millions of civilians from filing civil suits.
Whether you think this is a good way to try and impose new abortion restrictions or you believe it’s necessary to save lives, it’s unlikely this tactic stops with pro-life activists. Many gun-control activists are just as willing to use novel tactics to try and impose new gun restrictions and believe it’s necessary to save lives.
It is very easy to envision legislatures in California or Hawaii passing a similar law restricting the kinds of guns their citizens can own or even how many of them they can have. Instead of making it a criminal offense enforced by the government, they can pass the same kind of civil violation and empower civilians to sue over them. They can even use the same tactic of not making the gun owner liable but, instead, the gun dealer or even gun trainers who advise their students on what guns to buy.
Of course, courts usually catch up with novel approaches like this eventually. It’s likely the Texas abortion law will get blocked at some point. It may be ruled unconstitutional even by the Supreme Court itself.
But the tactic has worked thus far to get the restrictions into effect. And, unless the courts make a big show of striking it down, that early success will be enough for legislatures to try it on other issues. Gun control is probably at the top of that list of issues too.
Whatever you think of this new legal tactic, don’t expect it to stay a unique approach for long.
5 Responses
I am not too certain the anti-gun groups will resort to civil law suits like the Texas Abortion issue. The reason, in my humble opinion, is because gun rights are a Constitutional Issue and Abortion is not. I understand the logic you are presenting and pray you are wrong in this copycat mentality by the Gun Prohibitionists. Maybe I am in denial because you have been so right on the mark with your reporting of firearms issues. Stay safe and continue with your work. – Stephen B
Texas’ SB 8 will be found to be unconstitutional in most of its applications as soon as someone uses it to bring a lawsuit. It’s well-settled that state civil liability schemes like SB 8 can only be challenged as a defense when someone is sued, not through a pre-enforcement challenge.
UCLA law professor Eugene Volokh explains the difference between pre-enforcement challenges vs. affirmative defenses here https://reason.com/volokh/2021/09/03/challenging-unconstitutional-civil-liability-schemes-as-to-abortion-speech-guns-etc/
The intense media coverage of Whole Woman’s Health v. Jackson was a direct product of the pro-abortion plaintiffs litigation errors. Of course, it’s also possible that they wanted the attention that was sure to accompany an adverse Supreme Court ruling, even if that ruling had nothing to do with abortion or the merits of SB 8.
Gun control groups have been using civil lawsuits as a weapon for decades. The toll these lawsuits took on gun manufacturers was the reason Congress passed The Protection of Lawful Commerce in Arms Act in 2005. The real Second Amendment risk here is state courts that are now allowing these frivolous suits against gun manufacturers to go forward despite the defenses provided by the PLCAA.
This article from Open Source Defense offers a very good history of these tactics and how they are a form of asymmetric lawfare that can succeed without ever winning a single case https://opensourcedefense.substack.com/p/osd-128-nobody-needs-an-assault-lawyer
Writing in The Washington Post, Notre Dame law professor Carter Snead also notes that Texas pro-life legislators have not “struck on a novel strategy,” but instead are “adopting a strategy developed by progressives to root out fraud against the government and to protect the environment — namely, through ‘citizen suits.’”
The Clean Air Act has a citizen-enforcement element to it, but my understanding is that it’s not quite the same.
The key difference is that there’s no constitutional defense against suits—regardless of origin—alleging violations of the Clean Air Act.