Gavin Newsom thinks he's figured out an end run around the Second Amendment
Gavin Newsom thinks he's very clever, but, as the old saying goes, he's probably being too clever by half. His latest idea to grab guns from law-abiding citizens is to copy the new Texas abortion law. That law makes abortion illegal but incentivizes private citizens to sue those who provide abortions, keeping the state out of the loop. Newsom plans to do the same thing to enforce California's laws against imaginary weapons called "assault weapons." The problem is that, while the right to an abortion is a judicial construct, the Second Amendment is very real, which makes the laws themselves illegal no matter who enforces them.
The New York Post explains what's happening in California:
Newsom, incensed by the Supreme Court's ruling on Friday that allowed the Texas law to remain in effect while abortion clinics challenge it, called on the state legislature and the attorney general to craft legislation that would authorize private citizens to sue "anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in CA."
"I am outraged by yesterday's U.S. Supreme Court decision allowing Texas's ban on most abortion services to remain in place," the governor said in a statement released Saturday.
"But if states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives, then California will use that authority to protect people's lives, where Texas used it to put women in harm's way," Newsom, a Democrat, continued.
A federal judge in June overturned California's longtime ban on assault weapons in June, comparing the AR-15 rifle to a Swiss Army knife as "good for both home and battle."
Assuming that the Supreme Court has even a modicum of judicial integrity left, there's a profound difference between abortion and gun rights. Abortion is judge-made law. There's not a single word in the Constitution about abortion. There's also not a single word in the Constitution about privacy rights.
The only way that the Court could get to abortion in 1973 was to rely upon a judge-made right to privacy and, from that right, to extrapolate another judge-made "constitutional" right to abortion. It's a completely baseless decision that ignores entirely the Tenth Amendment, which leaves to the state those matters the Constitution does not address.
The Constitution might address privacy obliquely, insofar as the Constitution is intended to limit, not expand, government power. However, there is simply no way to get from that to a federal constitutional right to destroy a life in utero. States, which are closer to the mores of the citizens within that geographic boundary, get the right to make that decision.
What this means is that those who oppose abortion are constantly attacking the validity of Roe v. Wade. The point is that, if America is to have a constitutional right to abortion, that needs to be done through the constitutional amendment process, rather than the decision of nine unelected men who are making it up as they go along. Every law enacted in pro-life states is ultimately intended to get Roe v. Wade reversed on the ground that it doesn't have a smidgen of constitutional legitimacy.
It's quite different when you get to the Second Amendment. There it is, in black and white, large as life, and twice as natural:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
To the extent that the government can enact laws that infringe on that right, those laws must be drafted as narrowly as possible and further a compelling state interest. It doesn't make things better if California says, "Well, we're not enforcing it. Others will enforce it." Any law as broad as California's ban on those imaginary "assault weapons" is a nullity. Citizens have no right or standing to go to court demanding damages from other citizens in accordance with a law that is null and void ab initio.
As a matter of law and logic, I know I'm right. It remains to be seen, though, whether enough of the four allegedly conservative justices on the Supreme Court (by which I mean Roberts, Gorsuch, Kavanaugh, and Barrett, because Alito and Thomas are indubitably conservative) have the moral fortitude to make the right call on both the abortion and gun rights cases that come before them.
(For another take on just how wrong the law is, I recommend Jonathan Turley's article analyzing Newsom's idea.)
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