U.S.A. –-(AmmoLand.com) On November 1, 2021, the Supreme Court of the United States (SCOTUS), in an unusual move, granted certiorari (agreed to hear the arguments) before judgment in a case challenging the new Texas abortion law, known as S.B. 8. On December 10, extremely fast for SCOTUS, they delivered an opinion.
The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others.
In the opinion, SCOTUS said neither the Constitutionality of the Texas law nor the wisdom of the law as a matter of public policy, is under review of the court. In a mild rebuke to Justice Sotomayor, the opinion reminds her the abortion law does not deserve special treatment above that for named fundamental, Constitutional rights.
The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.
It is clear the Texas enforcement mechanism used to prevent abortions after a fetal heartbeat is detected is new and unusual. It is clear the law will come before SCOTUS. It is not clear what the outcome will be. From this opinion, it seems obvious four justices, Roberts, Breyer, Sotomayor, and Kagan, will go to great lengths to uphold abortion as a Constitutional right.
Governor Newsom of California has used the controversy as a platform to threaten Second Amendment rights.
SAN FRANCISCO (KGO) — Governor Newsom explained why he’s pushing for a new “gun control measure” in California Sunday, inspired by Texas’ latest abortion law. Newsom announced Saturday he is introducing a bill that would allow private citizens to sue makers and distributors of assault rifles and ghost guns. This is in response to the Supreme Court upholding a Texas law, which allows private citizens to sue abortion providers. At an event Sunday, Newsom told ABC7 he will use the same strategy to go after the gun industry.
The bill was not available as of this writing, so it is unclear how such legislation might play out in court.
Much depends on how the Supreme Court rules this term.
The SCOTUS (Supreme Court of the United States) acknowledged there were numerous novel legal theories in the Texas law they needed to consider. It is possible they could find the Texas law unconstitutional after more conventional proceedings. The Court has agreed to hear a Mississippi law banning abortions after 15 weeks. The court may issue an opinion on the Mississippi case before the Texas case, which may render the Texas case moot.
This term, SCOTUS is expected to issue an opinion on the upcoming NYR&PA case on the Second Amendment right to bear arms outside the home. It will be ruled on in late June, most likely. It may give clarity to what level of scrutiny is appropriate in Second Amendment cases. At present, several circuits are openly defying the Heller and McDonald decisions.
If the potential originalist and textualist Supreme Court majority hold (Roberts is squishy), Second Amendment rights will continue to be enforced and restored.
The result of Newsome’s threats will depend on how the Texas abortion law is interpreted by SCOTUS, and if SCOTUS upholds the previous decisions which created a Constitutional right to an abortion without any federal law or precedent.
It is a grand-standing move by Newsome. It grabs headlines but does little. Such a law might be upheld by the Ninth Circuit, but would have a significant chance of being overturned by SCOTUS, if SCOTUS continues to enforce and restore Second Amendment rights. The Second Amendment has a sound grounding in originalism and textualism. Roe v. Wade has none. 44 states protect the right to keep and bear arms to some extent in their state constitutions. In 2022, Iowa is poised to increase that number to 45. California is one of the few states which have no state Constitutional protection for the right to keep and bear arms. It may be one of the first to explicitly add protection for abortion to its law and/or constitution.
Analysis
Refusing to enforce the Second Amendment and the creation of abortion right in Roe v. Wade is extremely popular in the Media, the deep state, and among Progressives (Media/Tech Oligarch/Left). There is little widespread support for those positions in the national population. There is intense support for protecting Second Amendment rights; there is intense support for overturning Roe v. Wade. The ability of the Media/Tech Oligarch/Left to control the narrative on either issue appears to be fading with fading Media/Tech Oligarch/Left power to control the flow of information.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
