It is often said that politics makes strange bedfellows, and a brief filed with the Supreme Court last week is further evidence of that fact.
The Firearms Policy Coalition (FPC), a national gun rights organization, filed an amicus brief with the Supreme Court supporting a cert petition for Whole Woman’s Health v. Jackson. The brief raised concerns about S.B. 8, Texas’s restrictive abortion law, and how its enforcement mechanism could apply to the right to keep and bear arms.
“FPC is interested in this case because the approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation of enforcement to private litigants could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right,” the organization said in its brief.
The brief represents a temporary alignment between gun-rights activists and abortion-rights advocates, two groups that typically do not have a shared agenda in most other contexts. If the coalition wins, it could end Texas’s novel approach to sidestepping legal challenges to government-backed prohibitions on controversial activities. If not, the tactic could spread to many more states and issues.
FPC pointed to actions already taken by New York as an example of how the mechanisms of the Texas abortion law could be applied to future gun control efforts. It suggested that other restrictive states would follow.
“It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms,” the group said.
The group emphasized that it was not taking a position on abortion but was instead wholly concerned with the Texas law’s precedent if it were allowed to stand.
“The importance of this petition is not about any debate over the existence or scope of any constitutional right to abortion,” the group said. “Rather, this case is about access to the means of enforcing individual constitutional rights, as determined by this Court’s cases, and protecting against their infringement, regardless of the particular right involved.”
S.B. 8 was designed to evade judicial review through its enforcement mechanism. Unlike a typical law, the state government is not involved in its enforcement. Instead, only private individuals are tasked with enforcing the law through civil suits, making it much harder to challenge the government over the law’s legality.
“It is one thing to disagree with precedents and seek their revision or reversal through judicial, congressional, or constitutional avenues,” FPC said. “It is another simply to circumvent judicial review by delegating state action to the citizenry at large and then claiming, with a wink and a nod, that no state actors are involved.”
After declining to block the law back in September, the Supreme Court granted cert in the case a day after FPC’s filed its brief.
The case is set for oral argument on Monday, November 1.
