Good news

Independent from the morality and constitutionally of abortion Texas S.B. 8 needs to go down in flames. As expressed by a FPC brief (from here):

This case is important not because of its specific subject matter of abortion, but instead for Texas’s cavalier and contemptuous mechanism for shielding from review potential violations of constitutional rights as determined by this Court’s precedents. It is one thing to disagree with precedents and seek their revision or reversal through judicial, congressional, or constitutional avenues; 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.

From Amicus‘s perspective, if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms. While the political valences of those issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and Casey, many States view Heller as wrongly decided. Those States, with the help of many circuit courts, have showed an ongoing refusal to accept the holding in Heller and a continuing creativity in seeking to circumvent any protections for, and to chill the exercise of, Second Amendment rights.  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 First Amendment would also be subject to almost immediate attack if the Texas scheme were allowed to stand.

I suspect SCOTUS also sees the danger because:

The Supreme Court Court acted quickly to grant certiorari before judgment in Whole Woman’s Health v. Jackson and United States v. Texas, the two primary challenges to S.B. 8, the controversial Texas abortion law.

This is an important legal question that extends well beyond the issue of abortion. It could, for example, implicate the federal government’s ability to challenge state-level Covid policies (as both the Trump Administration and Biden Administration threatened to do, although concerning different sorts of policies).

H/T to Law Firm of SolitaryPoorNastyBrutish&Short @AubreyLaVentana for the tweet alerting me. I knew about the Texas law and the risk. I did not know about the FPC getting involved.


15 thoughts on “Good news

  1. There is one MASSIVELY important difference between the subject at hand…abortion and “gun rights”. One is EXPLICITLY protected by the Second Amendment of the Constitution. The other is NOT MENTIONED at all and
    when practiced as intended constitutes the extermination of a life.

    The exercising of one’s individual rights harms NOBODY. Hurt feelings because some moron doesn’t like words they hear is NOT being harmed.

    But the practice of abortion DOES cause actual real harm to a physical entity. And to conflate the two issues is insanity.

    • The issue at hand is not abortion vs. guns.

      The issue is that this law is destructive to the rule of law, and the reasoning behind it, if left standing, could be used against any activity – constitutionally protected or not. It’s a variant on the ancient practice of tax farming – or perhaps legalized vigilantism.

      The phrase “the end doesn’t justify the means” applies – means are ends, and doing things in the right way is the only way to achieve justice.

  2. Sorry, this is more unilateral disarmament by the Right. The Left is doing this stuff anyway and will continue to do so no matter what we do. Tit for tat is the winning strategy.

    • Could work in a heads-we-win-tails-you-lose manner. If the law is struck down, a whole class of legal techniques could be obliterated. If the law is upheld, everything is going to legal shit anyway, so might as well get a win on the board for the tribe while it all burns down.

      • The is no law, only Zuul.

        We’re already a post-constitutional, post-law society.
        The will to power is everything. Words on paper mean nothing.
        Power is force. Force is violence.

    • SCOTUS has said in the first trimester abortion is distinct from infanticide and is legal. Until that is changed, from a legal standpoint, “abortion rights” are equivalent to the specific enumerated right to keep and bear arms. Any clever end run available to bypassing SCOTUS rulings on abortion equally apply to the 1st and 2nd amendments.

      • This is what we get by just accepting that the SCOTUS has the equivalent power to amend the Constitution.

        They’ve already made the 10th Amendment a dead letter. An Amendment that was considered, voted upon by The People, and ratified by 2/3rds of the States, in accordance with the process in the Constitution, is null because a bunch of lawyers decided it was and the following lawyers stuck with it.

        Roe vs Wade is not the law of the land. It is the policy of the courts, and on top of everything, it is such a disastrously written opinion that its reasoning never cited in any other Supreme Court opinion to justify any other case because its reasoning is “because we want to” garbage.

        The Legislative branch should have impeached all the Justices voting for it because they were making law which is properly the exclusive power of Congress. But then, they’ve offloaded legislative power to the Executive, too, calling it “regulations”, and offloaded the power to declare war to the Executive through the War Powers Act, and I’m wondering if there would be any net effect to us if Congress just showed up for their first day, got sworn in, then went home for the next two years.

        • This, and other comments here, are worthy of blog post rather than a follow up comment. I’m busy this morning but maybe I’ll have time this afternoon.

  3. “a legislatively-created procedural right granted to Andy can actively undermine a substantive right Constitutionally guaranteed to Betsy.

    For instance, a right of direct action. Yes, I’m talking about SB8, but Texas didn’t invent the concept, they merely repurposed it for a different public policy matter.

    And no, I’m not conceding that there is a right to abort a fetus either.”

  4. ”… 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.”

    It could well be argued that that serves as a functional definition of “democracy”, which since the early Progressive era has been peddled as the ultimate form of virtue in governance.

    Once the psychological effects of that sales pitch had run their course and taken hold, FDR could refer to the U.S., not as a sanctuary for liberty, not as a preserve for freedom of conscience, but as “the arsenal of democracy”, and hardly anyone would take notice of the paradigm shift.

    “The arsenal of democracy”, I point out, may be translated as “the force of the tyranny of the majority”, the full implications of which cannot be understood without first understanding the prophetic symbology in the Book of Revelation. But in this enlightened, post-Reformation age, no one pays any attention to that anymore.

  5. As mentioned here already. This has been the communists favorite hat trick for the last 100 years.
    And lawyers have been denying our rights and stealing from us in this manner for as long as our system has been in power.
    Would anyone say that if I aided an abided someone in a murder, robbery that I could not face civil, as well as criminal penalties?
    The tools I used were irrelevant to the act. And the fact that they have been included is a usurpation by all involved.
    The fact that someone could go after you with a “gun” crime charge, is a violation of an enumerated law against such action as expressed by the constitution’s 2A.. And something that could only be allowed by the action of moronics and fraud.
    Which is the actual system we live in.
    Texas S.B. 8 will not change anything. And FPC search for moral high ground is just a refusal to understand the mountain their climbing is a thousand leagues under the sea already.

  6. Just a note to remind you all of the practical side effect of Roe v Wade: the cost of throwing away 60 million+ citizens (mostly white) that were replaced with an equal number of non-citizen, non-white, non-usa culture, lower IQ, cheap labor bodies. Look at the problems we have now. Think that was an equatable trade?

    Until Roe, the data shows that at least 20% of brides were pregnant at the alter. So, less marriages, more feminizem idiocy to drive men and women apart, and the nation goes to hell in a handbasket.

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