Are gun rights safe after S.B. 8?
When the Supreme Court agreed to hear, on an expedited basis, the pleas of abortion providers to stop Texas’s draconian and unusual six-week abortion ban, the challengers had an unlikely ally: the Firearms Policy Coalition, an active and assertive gun-rights organization.
A key aspect of the fight over Texas’ Senate Bill 8, or S.B. 8, is how the law purports to insulate itself from federal court review by allowing only private individuals, not government officials, to enforce its provisions. Firearms Policy Coalition filed an amicus brief arguing that Texas’ scheme threatened not only a right to reproductive autonomy but also Second Amendment rights. Though the brief disclaimed any ultimate stance on whether the Constitution protects the right to abortion, it underscored that the state’s approach “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.”
That brief — and the many others from those opposed to S.B. 8 — did not persuade enough justices. On Friday, the court issued an opinion that gave the providers a nominal victory in allowing their suit to proceed against certain medical licensing officials, but on the whole, undercut the ability to get meaningful pre-enforcement review against other state officials, like the state attorney general, state court clerks who docket the lawsuits, or state court judges who hear them.
Writing for a 5-4 majority, Justice Neil Gorsuch said: “The truth is . . . those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments.” He claimed the court has often required those same rules “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,” and declared that the abortion providers were “not entitled to a special exemption.” But many observers — and the dissenting justices, including Chief Justice John Roberts — saw the court’s failure to grant relief differently.
Chief Justice Roberts, writing for himself and the three more liberal justices, stated plainly how the lawsuit was about the way Texas “employed an array of stratagems designed to shield its unconstitutional law from judicial review.” He argued that state court clerks — whom the majority held to be improper defendants — are by the specific design of the statute “unavoidably enlisted in the scheme to enforce S.B. 8’s unconstitutional provisions, and thus are sufficiently ‘connect[ed]’ to such enforcement to be proper defendants.” Responding to the majority’s claim that such relief does not rest firmly on past decisions, Roberts proclaimed that “[a]ny novelty in this remedy is a direct result of the novelty of Texas’s scheme.”
Justice Sonia Sotomayor, writing for herself and Justices Stephen Breyer and Elena Kagan, was even more trenchant. She accused the majority of “betray[ing] not only the citizens of Texas but also our constitutional system of government.” She concluded her separate opinion with a stark description of the dispute. The disagreement among the justices over the proper outcome was not merely about legal technicalities, she insisted, but “over whether states may nullify federal constitutional rights by employing schemes like the one at hand.” The majority, she asserted, answered yes. And she predicted the court would not be prepared to face the “far-reaching repercussions” from its “choice to shrink from Texas’ challenge to federal supremacy.”
Those potential repercussions were not lost on commentators. Immediately after the opinion came down, one avid court watcher suggested the ruling would allow a state to “ban handguns or concealed carry purely through private enforcement, without any executive branch participation.” Political scientist Amanda Hollis-Brusky also raised the analogy to gun rights. She asked people to imagine how the justices would react if California had done to gun rights what Texas did to abortion, creating a world in which gun sales ceased and gun ownership became “a de facto state crime.”
These observations seem correct: The majority’s ruling permits a state to at least temporarily ban handguns in defiance of District of Columbia v. Heller by thwarting effective federal pre-enforcement review — and yet, as Hollis-Brusky implies, it would be hard to see the conservative justices reaching that same conclusion if gun rights were at stake. But we will likely never have a chance to test that hypothesis.
For decades, there has been a groundswell of conservative opposition to the correctness and, indeed, legitimacy of Roe v. Wade. That opposition has long included state legislatures, state governors and attorneys general and local and national networks of conservative activists and advocacy organizations. In contrast, there is almost no official condemnation of Heller. I’m not aware of a single one of the 2020 Democratic presidential contenders calling for Heller to be overturned or seeking to return the country to a militia-based understanding of the Second Amendment. Nor are state elected officials in power calling for the decision’s reexamination. Almost none of the major gun violence prevention organizations seeks a court decision overruling Heller. Because of those factors, it is almost unimaginable that a Democratic-controlled state would enact a law that directly contravenes Heller by banning the possession of handguns in the home for self-defense in the same way that S.B. 8 directly contravenes the core teaching of Roe. I recently explained why California Governor Gavin Newsom’s new proposal doesn’t come close to mirroring S.B. 8.
While gun rights might not be formally safe after the court’s S.B. 8 decision, they are — for all practical purposes — as safe as ever. What the court’s decision in the S.B. 8 case likely means is that conservative lawmakers will continue playing constitutional hardball by deploying similar schemes to undermine other rights they dislike. The same tactics are unlikely to occur on the other side of the aisle and almost certainly not for gun rights.
In other words, asymmetric polarization makes the Supreme Court’s decision an even more lopsided conservative victory than it might otherwise have been.
Jacob D. Charles is a lecturing fellow at Duke University School of Law and executive director of the Duke Center for Firearms Law. He writes and teaches on the Second Amendment and the regulation of public and private violence. Twitter: @JacobCharlesNC