Laws as Trolling
December 11, 2021 8:22 PM   Subscribe

Gavin Newsom calls for bill modeled on Texas abortion ban to crack down on gun manufacturers “If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that,” said Newsom, a longtime advocate of strict gun control laws.
posted by tiny frying pan (64 comments total) 20 users marked this as a favorite
 
I *so* want to get rid of guns, but the existence of the 2nd Amendment makes this one uniquely hard to manage with a state law, doesn't it?
posted by wenestvedt at 8:33 PM on December 11 [1 favorite]


Fine, use it ammunition manufacturers.
posted by Brandon Blatcher at 8:37 PM on December 11 [10 favorites]


This is a stunt. I believe that this conflicts with federal law, namely 15 USC 105, the PLCAA, or at least, the courts will contrive an interpretation that perceives a strikable pre-emption by means of federal law.
posted by LeRoienJaune at 8:38 PM on December 11 [5 favorites]


the existence of the 2nd Amendment makes this one uniquely hard to manage with a state law, doesn't it?

The 14th Amendment would otherwise protect women's privacy wrt their health, but here we are, I guess.
posted by They sucked his brains out! at 8:42 PM on December 11 [88 favorites]


Heightening the contradictions inherent in the system I guess?
posted by aramaic at 8:46 PM on December 11 [4 favorites]


Sometimes it's about trying to pull back the Overton window from the theocrats' grip. It may be largely (or entirely) symbolic, but it still serves a valid political purpose.
posted by tclark at 8:48 PM on December 11 [65 favorites]


Isn't the idea that even if the ban itself is flatly unconstitutional, enforcing it with vigilante lawsuits instead of official state action makes it impossible to challenge in court? That's what the Texas law does, and what the Court has semi-endorsed by refusing to suspend that law until they issue a ruling on it.
posted by Rhaomi at 8:57 PM on December 11 [50 favorites]


I think it's stupid, but if the Supreme Court insists on being (mostly) a bunch of maroons, all I can say is what's good for the goose is good for the gander. Not that I expect sufficient ideological or legal consistency on the part of the more unhinged justices. They are all too happy to abandon any pretense of legal reasoning and Roberts will be on their side if something like this came before the Court, and quite legitimately so. Or maybe he'd hang his hat on stare decisis and vote to let California do its thing. That would be pretty funny, if ultimately pointless.
posted by wierdo at 9:19 PM on December 11 [7 favorites]


Truly, we're living in the dumbest timeline.

I can see two explanations for this: either Newsom thinks there's some way that this will get struck down by the Supreme Court in a manner that will set precedent for the Texas law to get struck down (really unlikely!), or he's figuring that as long as the other guys are breaking the Constitution, he might as well jump on the bandwagon, and he figures that his base will like this.

This is not good! The two outcomes that I see are either that this law gets down and the Texas one doesn't (yes, this would be hypocritical. no, republicans do not care), or that it's the beginning of us sliding into some nightmare mirror reality where states can just ignore the constitution whenever they want, as long as they do the little dance of going through private lawsuits (which, uh, I shouldn't have to point out is not even close to evenly accessible to everyone, even if for some reason you don't think the Constitution should be binding).

But it seems like people are going to cheer this on anyways, because it seems like a clapback in legislature form which apparently is what people want these days.
posted by wesleyac at 9:45 PM on December 11 [11 favorites]


In some sense this a case of Newsom playing chicken with the right - come after abortion rights and we'll use your same tools to come after your guns - it's also a message to the Supremes: declare the Texas law legal and we'll actively keep opening your can of worms and let them all out .....

I still don't understand why states can't regulate their militias, California might require gun owners to put in N days of practice a month, M days of safety courses a year, meet stringent safety and storage checks, be able to shoot to a particular standard, to not be racist ..... after all the 2nd amendment seems to require a well regulated militia.
posted by mbo at 9:50 PM on December 11 [61 favorites]


The problem here is that the concept relies on the Supremes having either shame or intellectual integrity, neither of which the court as a whole possesses.

So it won't work.

But I don't fault Newsom for trying, given this is exactly what Sotomayor warned them of
posted by suelac at 10:13 PM on December 11 [28 favorites]


But it seems like people are going to cheer this on anyways, because it seems like a clapback in legislature form which apparently is what people want these days.

If we can't hope for good things to happen, this is the next-best thing I guess?
posted by CrystalDave at 10:16 PM on December 11 [8 favorites]


Gavin Newsom fucking sucks. He's a George Bush for democrats, a pretty boy asshole who gives no focus about governing other than the illusion of power and looking pretty on TV.
He's a living example of the Peter Principle who can't stop failing up because his incompetent shittiness has no bounds. He sucked as a mayor here in San Francisco, he sucked as a lieutenant governor, sucks as a governor and will suck as a vice president. He is a walking ball of slime and whatever bullshit grandstanding he does is just to fool you into thinking he's with you or your party or whatever.
posted by lkc at 10:24 PM on December 11 [21 favorites]


Let people have guns, but require a cohort of peers to provide insurance to ensure it will never be used for illegal purposes. Use a gun in self defense? Fine, 2A rights. Your unlocked gun kills a toddler? Prison and now your militia backed insurance now owes $10 million and get some prison too.
posted by rh at 10:50 PM on December 11 [23 favorites]


Make gun manufacture unprofitable by taking away the manufacturers' liability exemptions. Enforce safety rules on guns, such as requiring safety catches to work reliably. Every one still has the right to guns, but not many people could afford to pay several thousand dollars for each gun they want to bear.
posted by monotreme at 11:07 PM on December 11 [14 favorites]


I doubt Newsom thinks this somehow will convince the right of the errors of their ways. It's not like extremists in the court and in Texas and Mississippi are suddenly going to go, "oh, hey, sorry gee everyone, we were so wrong to take away women's rights." But it also isn't really dealing seriously with the need to take weapons away from dangerous people, either -- which is what we really should be doing; which is what every sane country that isn't run by right-wing psychos has already done. In a lot of ways that matter, this stunt feels like flailing desperation in the face of a long-burning fascist takeover of the country. We can't seem to do anything about the gun disease (among the other diseases that conservatives purposely help spread), and we can't seem to stop them from eroding everyone's civil rights, who isn't a white, straight, Christian man.
posted by They sucked his brains out! at 11:14 PM on December 11 [3 favorites]


a George Bush for democrats

An unpalatable but effective tool for driving the political agenda towards that of his party's more radical wing? I have limited awareness of Newsom, and no feelings about him either way, but while your description sounds far from ideal, it doesn't sound terrible. It certainly sounds better than a palatable but ineffective tool. A clear conscience has its value (or so I gather from those who have one) but it doesn't change laws or win votes.

The idea that politicians need to be good people to be useful seems odd. Politics isn't polarised between good and bad, but rather specific points of ideological contention. There isn't, and never will be, a Good Party that needs decent politicians and an Evil Party that needs wicked ones. Certainly I believe there is more wickedness from the right than the left, but that's because right wing policies lead to evil, not because evil leads to right wing policies.

On the specific policy point...sure, why not? I struggle to see the harm. In particular, it seems pretty clear* that current US constitutional arrangements are no longer fit for purpose, and could never be appropriate for the pluralistic and inclusive society we would like to see. Even if preserving the US Constitution were a desirable outcome, refusing to use tools that one's opponents use doesn't seem to do anything to make the slope away from that less slippery or steep. Republicans will continue to use their supposed deference to a mythically inerrant and speciously inviolable constitution as a pretext for their brand of racist Christian authoritarianism until that constitution is symbolically bankrupt as well as legally useless, and no amount of high-mindedness is going to change that.

* To an outsider in a country whose constitutional arrangements are also, to use a technical legal term, fucked.

posted by howfar at 2:18 AM on December 12 [14 favorites]


What all this means further afield is that countries like Australia, which look to the US as a model of modernity and/or moral upstandingness, will eventually have to move towards bounty-hunter-based judicial systems in the name of keeping up with the times.
posted by acb at 4:27 AM on December 12 [3 favorites]


Australia, which look to the US as a model of modernity and/or moral upstandingness

A what the who, now?
posted by soundguy99 at 4:34 AM on December 12 [42 favorites]


Historically, I meant: from Labor choosing the American English spelling of their name to signal shaking off the fusty colonial apron strings of the Empire, to conservative editorials rhapsodising about how we should be more like America, with its beliefs in Liberty and Personal Responsibility and where the average citizen would consider it a mortal sin to take something they haven't earned, and so should (build more roads/privatise healthcare/abolish the ABC/bring in tipping in restaurants/have more religion in public life/whatever).
posted by acb at 4:40 AM on December 12 [2 favorites]


I like this. You open Pandora's Box (imma call it legal vigilantism) you suffer the fallout. The Supreme Court is likely to approve of state funding of religious schools. What about when tax-payer money is then going to madrasas? Or the L'il Tikes School of Satan? Can't wait.
posted by jabah at 4:56 AM on December 12 [14 favorites]


Isn't the idea that even if the ban itself is flatly unconstitutional, enforcing it with vigilante lawsuits instead of official state action makes it impossible to challenge in court? That's what the Texas law does, and what the Court has semi-endorsed by refusing to suspend that law until they issue a ruling on it.

And why the gun lobby filed an amicus brief with the court supporting Texas abortion providers. They clearly saw the writing on the wall if the court allowed the Texas law to stand.
posted by Thorzdad at 5:23 AM on December 12 [24 favorites]


Isn't the idea that even if the ban itself is flatly unconstitutional, enforcing it with vigilante lawsuits instead of official state action makes it impossible to challenge in court? That's what the Texas law does, and what the Court has semi-endorsed by refusing to suspend that law until they issue a ruling on it.

I'm pretty sure the Supreme Court has fully rejected this tactic of making the law impossible to challenge in court, what they've punted on and sent back to the lower courts is any kind of ruling on the actual merits of the law itself. Which makes this seem like a really cynical publicity stunt by Gavin Newsom taking advantage of his supporters' ignorance.

Make gun manufacture unprofitable by taking away the manufacturers' liability exemptions. Enforce safety rules on guns, such as requiring safety catches to work reliably. Every one still has the right to guns, but not many people could afford to pay several thousand dollars for each gun they want to bear.

Also, this seems to misunderstand why gun manufacturers ended up exempt from liability. The problem isn't that they'd be unprofitable if they were required to make their guns work reliably, it's that one of the more pro-gun-control administrations used the tactic of arguing that guns which worked reliably were themselves a safety hazard because they could be used to shoot people and ended up driving one of the oldest and most trusted gun manufacturers out of business. Effectively, they used product safety as a backdoor route to gun control that avoided the democratic accountability of actually passing laws, and guns were exempted from product safety rules to block that. Which has the unfortunate side effect that the government can't take guns that are actually unsafe off the market, but I don't think US gun owners trust them to use that power in a way that actually removes defective guns from the market rather than reliable and trustworthy ones.
posted by makomk at 6:02 AM on December 12


I'm pretty sure the Supreme Court has fully rejected this tactic of making the law impossible to challenge in court...

Have they? They're allowing the Texas law to remain in effect, which seems odd if they had, in fact, found such a contrivance unconstitutional.
posted by Thorzdad at 6:08 AM on December 12 [4 favorites]


Think so. They've basically found that the clever contrivance that was supposed to stop it being challenged in court is ineffective and the abortion clinics the law targets have the right to sue pre-emptively to block it from being enforced. As far as I can tell the Supreme Court didn't really have any grounds to rule on the merits of the law itself beyond that in this case, though that's probably quite a complex legal question.
posted by makomk at 6:30 AM on December 12


I *so* want to get rid of guns, but the existence of the 2nd Amendment makes this one uniquely hard to manage with a state law, doesn't it?
No, we just need to go with the common understanding prior to the late 1970s that “well regulated” wasn’t just decorative fluff. The right-wingers created a new rallying point to replace segregation, as with abortion, but that doesn’t mean we have to concede the topic permanently.

In this case, that could look like a Texas-style law giving vigilantes a finder’s fee any time they report a gun owner not in compliance with the California national guard rules for training, storage, fitness, or use-of-force rules. Wouldn’t want our militia to be an embarrassment or incapable of defending against an invasion, after all — it’s so important it’s in the constitution!
posted by adamsc at 6:36 AM on December 12 [11 favorites]


I *so* want to get rid of guns, but the existence of the 2nd Amendment makes this one uniquely hard to manage with a state law, doesn't it?

The right of an individual to purchase firearms is constitutionally protected to exactly the same extent that abortion is. Neither are articulated in the text; both were created by Supreme Court rulings—Heller for guns, Roe for abortion. But because conservatives are consistently better at propaganda than liberals, they’ve spent two generations droning on about “Second Amendment rights” as though their view is clearly constitutional, while the left, instead of chanting “14th Amendment rights!” has chosen to frame it as “defending Roe,” inculcating the notion that abortion rights rest not on the constitution itself, but on one (controversial, overturnable) court decision. Alas, sloganeers don’t ever consult me.

Everyone should read “How the NRA Rewrote the Second Amendment
posted by Pater Aletheias at 6:39 AM on December 12 [49 favorites]


I think this will have the desired effect of throwing the Texas abortion law in very clear perspective for the Supreme Court debate. Sotomayor hypothecated what a terrible principle this kind of backward-ass law would be. California is now demonstrating it. And if the happy side effect is my home state manages to actually make its people a little safer from guns, well, at least that'd be a good outcome. Much better to rule the Texas law and other Stasi*-style laws like it unconstitutional. Both for the attempt to do an end-run around established constitutional liberties and also because abortion is an important healthcare right.

But I dunno, I just got to re-reading the history of Dred Scott v Sandford and am newly reminded of how often the Supreme Court has been in the wrong. And certainly reflects the political biases of its members, not some abstract purity of law.

* I hate throwing words like "Stasi" in discussions because people assume I'm being inflammatory. But I mean this in a cold, literal sense. A key tool the Stasi used to control people was getting its citizens to spy on and inform on each other. That's exactly how the Texas law works too, turning every person in Texas into part of the apparatus of oppression. It's intensely corrosive to civil society.
posted by Nelson at 6:49 AM on December 12 [17 favorites]


" to conservative editorials rhapsodising about how we should be more like America, with its beliefs in Liberty and Personal Responsibility and where the average citizen would consider it a mortal sin to take something they haven't earned,"

To be fair, I think we Americans imported a lot of this from Australia, via Rupert Murdoch. The call might be coming from inside the house?
posted by Eyebrows McGee at 6:50 AM on December 12 [10 favorites]


Which makes this seem like a really cynical publicity stunt by Gavin Newsom taking advantage of his supporters' ignorance.

It's mostly about him working to raise his national profile (presumably leading towards a presidential or vice-presidential bid) by taking strong positions on "culture war" issues. I can't imagine anyone thinks this is actually going to be an effective way to regulate firearms -- but it is effective at getting him in the news and simultanously highlighting the unlikelihood of the Texas law passing court scrutiny because of the Pandora's box it opens to using that mechanism for anything and everything.

I think it is interesting that he views staking out these positions as potentially winners; I think going forward we will see more of that rather than just the GOP winning on culture issues while the Dems fuss around ineffectively.
posted by Dip Flash at 6:58 AM on December 12 [3 favorites]


I'd encourage a new law with this one: If you are going to make rhetorical arguments about whether or not a gun law will work, you have to at least once (probably more than once) had to have thrown your body on top of your child to protect them from gunfire during dinner, a playdate or a walk in the neighborhood.

I've had to do this, as well as most of the parents I know where I live. Both ghost guns and assault riffles have been involved.

I don't think most people realize how f*ed gun violence is in California when they say, "Golly I'd love to do something, but shucks-o this (whatever this is) will never work". Newson is the only person I am aware of who is doing anything about it. I am definitely going to use this law that Newson is developing once it is enacted and honestly I probably will be able to use it the first day it is.
posted by Toddles at 7:03 AM on December 12 [14 favorites]


Just a friendly reminder that Texas is not a monolith Republican fuckistan, plenty of good people including potentially enough who vote democratic that a non gerrymandered State might be blue.
posted by Jacen at 7:33 AM on December 12 [10 favorites]


The reason the base eats this up is because the national Democratic party does not seem to be doing much of anything, other than expressing feckless "concern" and "support" for laws they know they won't pass because they won't get rid of the filibuster.

Additionally, this is not the only thing Newsom is doing with regards to abortion - he is also proposing to make California an "abortion sanctuary" (with the assistance of an expert panel that he convened), and offer to pay for travel costs for people out-of-state who need abortions. My suspicion is that he decided to make the gun law announcement after the first news did not make enough national headlines.

Newsom has his faults - I'm not gonna lie - I do not like him on a personal level, he seems smarmy. However, he is also one of the few high-profile Democrats I'm aware of who does not apologize for being liberal or progressive and does not get mealy-mouthed around issues important to the liberal base like abortion or guns. And that is appealing to me.
posted by toastyk at 8:11 AM on December 12 [32 favorites]


I'm pretty sure the Supreme Court has fully rejected this tactic of making the law impossible to challenge in court, what they've punted on and sent back to the lower courts is any kind of ruling on the actual merits of the law itself.

This isn’t so—the court allowed the lawsuit by abortion providers to go forward, but on very narrow grounds. They accepted the fundamental theory that the vigilante lawsuit mechanism shields most state officials from suits questioning the constitutionality of the law. The Texas suit was allowed to go forward because the abortion providers are licensed, and they are allowed to sue the state in its function as a licensing agency. If Texas eliminates the licensing requirement, the abortion providers have no one left to sue and the vigilante lawsuit mechanism stays in place.
posted by mr_roboto at 8:55 AM on December 12 [7 favorites]




who dis?

We're still doing this cringy appropriation of AAVE thing? Can we please stop? Even if you were raised to communicate this way, using it in an semi-anonymous context such as this merely encourages the stereotype.
posted by viborg at 9:21 AM on December 12 [5 favorites]


Newsom has his faults - I'm not gonna lie - I do not like him on a personal level, he seems smarmy. However, he is also one of the few high-profile Democrats I'm aware of who does not apologize for being liberal or progressive and does not get mealy-mouthed around issues important to the liberal base like abortion or guns. And that is appealing to me.


So he reflects something like the center of the California electorate. However despite the vagueness of terms like "progressive", let's be honest about what he really is: a neoliberal. He's glad to swing to the left on "progressive" issues like this which won't really significantly impact Wall Street but on most economic issues he is pretty solidly right wing in a global context.
posted by viborg at 9:24 AM on December 12 [3 favorites]


I'm pretty sure the Supreme Court has fully rejected this tactic of making the law impossible to challenge in court

On the contrary: they endorsed almost all of it. Abortion providers wanted to sue the judges and clerks who would handle the private suits, and SCOTUS decided that they couldn't. They can only sue a few state officials who would be involved in stripping licenses if abortion providers lose. Even if they win against those officials, it's not clear that a judge would even be willing to prevent the private suits from being filed and monetary damages imposed (since those officials aren't involved). Sotomayor, in dissent: "The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials."

The ruling is a blueprint for how to do what Newsom is proposing. Yes, this is maybe preempted by federal statute, but if the court actually takes its own ruling seriously, how do claims under that statute even get heard in federal court when there's no state official to sue that isn't immune? It's a fucking stupid doctrine (of course there has to be some way to vindicate your Constitutional rights in federal court, what are we even doing here) but I welcome CA making SCOTUS look like the partisan hacks they are when they find some method to strike the law down.
posted by BungaDunga at 9:44 AM on December 12 [15 favorites]


viborg, maybe some context will help?
posted by a box and a stick and a string and a bear at 9:45 AM on December 12 [3 favorites]


viborg - I don't understand exactly what you are trying to say? I mean, yes, I agree, he's a neoliberal, but that is par for the course in mainstream American politics. I don't like it, but the "progressive" issues you are being dismissive are directly economically impactful. Are gun deaths/injuries not an economic issue? The ability for my kids to attend school without fearing they are going to die? Are people's abilities to access safe healthcare procedures not economically impactful?

Anyway, you can look at the laws he signed and vetoed this year...and honestly I think he's got a mixed record on the progressive front but it's not nothing.
posted by toastyk at 10:02 AM on December 12 [2 favorites]


I am glad to see the left reclaiming gun control as an issue. It's been really disappointing to me to watch people who I agree with on many other things decide to swing far right on gun control and then somehow claim guns everywhere for everyone as a leftist position.

Guns are legally allowed in my classrooms on university campus here in Georgia. It is terrifying. Having active shooter drills is terrifying. The 5 times our campus has been locked down have been terrifying. Black children being killed by white vigilantes is terrifying. Our society would not be better if everyone had more guns. I'm glad that there are Democratic voices like Newsome and Rep. McBath speaking up for gun control.
posted by hydropsyche at 10:21 AM on December 12 [11 favorites]


who dis?

We're still doing this cringy appropriation of AAVE thing? Can we please stop? Even if you were raised to communicate this way, using it in an semi-anonymous context such as this merely encourages the stereotype.
posted by viborg


I admit I was reaching for a cute title and it is clear I had a huge blind spot about it. I apologize. With permission from the mods, I would like to request they change the title to something non offensive.
posted by tiny frying pan at 10:33 AM on December 12 [6 favorites]


Mod note: Changed it to "Laws as Trolling"
posted by Eyebrows McGee (staff) at 11:02 AM on December 12 [4 favorites]


The ruling is a blueprint for how to do what Newsom is proposing. Yes, this is maybe preempted by federal statute, but if the court actually takes its own ruling seriously, how do claims under that statute even get heard in federal court when there's no state official to sue that isn't immune?

The conservatives of the court have essentially given the go ahead (and mechanism) for states to sidestep not just the Constitution, but any federal law or regulation they deem inconvenient. It’s a watershed victory for the States Rights crowd. If I were a functional member of the federal or states’ judiciary, though, I’d be seething mad right now, having been thrown under the bus by SCOTUS.
posted by Thorzdad at 11:31 AM on December 12 [4 favorites]


This was brilliant. The only justice that pointed out that the Texas law was unconstitutional based on law was Justice Roberts. I don’t care what side of the abortion issue you are on, this law as it stands is illegal and unconstitutional. Maybe now that they see this law can be applied to other things, they’ll smarten up and make a legal decision.
posted by dreemsnake at 11:33 AM on December 12


If I were a functional member of the federal or states’ judiciary, though, I’d be seething mad right now,

fwiw texas state courts can still apply the federal constitution to SB8 (and so can California courts to whatever gun regulation gets passed).
posted by BungaDunga at 11:52 AM on December 12


Additionally, this is not the only thing Newsom is doing with regards to abortion - he is also proposing to make California an "abortion sanctuary"

Wouldn't extending the Mann Act to make transporting a pregnant woman across state lines for the purposes of getting an abortion be a fairly straightforward next move?
posted by acb at 12:19 PM on December 12


Newsom has his flaws but if he's gonna troll both the Texas Legislature and the gun fondlers in one go, I'll happily hold his coat for him.
posted by The Ardship of Cambry at 12:50 PM on December 12 [18 favorites]


The California action is based on a bill in Illinois (called the Protecting Heartbeats Act) modeled after the Texas law.
There's another proposed bill--The TEXAS act--that allows "a person to sue anyone that causes an unintended pregnancy, and create[s] a public abortion fund for non-Illinoisans."

If the Texas law holds up, there are going to be a swarm of state laws allowing private lawsuits without legal oversight on any number of issues.

The proposed gun laws do seem to run into the PLCAA, which protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. I suppose the intended dodge is that they're not allowing lawsuits based on "negligence" or other indirect methods of blame - the bill just says that gun makers & dealers are liable if one of their guns is used to shoot someone illegally.
Any manufacturer, importer, or dealer of a firearm
shall be held strictly liable, without regard to fault or
proof of defect, for any bodily injury or death if the bodily
injury or death proximately results from the unlawful
discharge of the firearm in this State
(Huh. "Reckless discharge of a firearm" is often what police shootings bargain down to.)
posted by ErisLordFreedom at 2:28 PM on December 12 [1 favorite]


Wouldn't extending the Mann Act to make transporting a pregnant woman across state lines for the purposes of getting an abortion be a fairly straightforward next move?

SB8 already levies penalties on "abetting" an abortion. Anyone within Texas' jurisdiction who buys someone a bus ticket to get to a clinic, or even tells them how to find an abortion, or maybe even recommends an abortion might be liable.

I wonder if California could set up an inverse SB8, penalizing anyone who "abets" anyone suing under SB8, so if a Californian is involved in a group that is funding anti-abortion litigation in Texas, they could be liable. This is of course "turtles all the way down" ridiculous, but so is SB8, so whatever.
posted by BungaDunga at 2:57 PM on December 12 [3 favorites]


I still don't understand why states can't regulate their militias,

Congress regulates the "well regulated" militia.
U.S. Constitution
Article 1 - The Legislative Branch
Section 8 - Powers of Congress
Clause 16:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
posted by mikelieman at 3:56 PM on December 12 [3 favorites]


BRB drafting up a ballot initiative allowing private citizens to sue any person, business, or government agency in California who creates, maintains, operates, funds, or supplies a police department or prison facility.
posted by turbowombat at 4:21 PM on December 12 [6 favorites]


I will support your proposition, but only if you make the title spell out ACAB.
posted by ryanrs at 4:31 PM on December 12 [7 favorites]


This would be fine if Newsom were to be funding the litigation that would come of it out of his own pocket. He is not. It's a waste of resources that will only generate unfavorable precedent, if any, while burnishing his name.


I still don't understand why states can't regulate their militias,

Congress regulates the "well regulated" militia.


Before you get to far in that direction, DeSantis' latest stunt.
posted by snuffleupagus at 4:33 PM on December 12


This would be fine if Newsom were to be funding the litigation that would come of it

All you have to do is put prevailing-party attorney fees in the statute. SB8 has that, and I assume Newsom is smart enough to copy that feature.

Prevailing-party attorney fees guarantee a steady stream of lawyers willing to pursue those cases. That's why there are so many small / nuisance-value copyright shakedown suits, ADA suits for things like "grab rail in bathroom not at the exact right height" and so on.
posted by spacewrench at 4:44 PM on December 12 [1 favorite]


I meant the defense of the law itself when it's inevitably challenged and then probably invalidated after multiple appeals, whether or not that's consistent with the Texas case. Because we all understand that this really just grandstanding intended to expose exactly that hypocrisy.

Meanwhile, though the state's litigation budget isn't exactly a zero-sum situation I can think of a lot of other stuff that could benefit from attention and would be a whole lot more likely to succeed long term.

Also, watch the wrong Federal judge sitting in diversity find a way to invalidate the claim (i.e. under the Supremacy Clause) while severing the fees and awarding them to the Defendant.
posted by snuffleupagus at 4:53 PM on December 12


And this the “Allowing Californians to Avoid Brutality” proposition was born, thanks ryanrs!
posted by turbowombat at 6:00 PM on December 12 [5 favorites]


"The California action is based on a bill in Illinois (called the Protecting Heartbeats Act) modeled after the Texas law.
There's another proposed bill--The TEXAS act--that allows "a person to sue anyone that causes an unintended pregnancy, and create[s] a public abortion fund for non-Illinoisans.""


Yeah, our Democratic state legislators have turned trolling the national GOP into an art form. They have supermajorities in both chambers and the governorship; there are zero statewide elected offices held by Republicans; and the state GOP is in such terrible disarray they accidentally ran a Nazi in the suburbs. Dems can troll all day long and still pass (most of) their agenda.

People thought our governor might face a serious challenger because he's been (appropriately, IMO) heavy-handed with Covid restrictions, but then the GOP members of our US Congressional delegation started Nazi-ing out in DC ("Heil" Mary Miller said Hitler had some good ideas about training youth for political action; a campaign operative for the current GOP frontrunner got arrested for Jan. 6 involvement), and while you might get the suburbs to vote for a fiscal conservative who mouths centrist values, they're not voting for Jan. 6 insurrectionists, friends-of-Nazis, or culture warriors. And there are not nearly enough votes outside Chicagoland to win a statewide election. Nearly half the state population lives in Cook County; 2/3 of us live in the greater Chicagoland area.

So, yeah, our legislators can have a grand old time trolling and still point to a bunch of actual accomplishments and not worry too much about losing their supermajorities in the current state political climate.

I will say it's pretty bizarre to watch the state GOP just shrug and give up on the suburbs completely so they can throw red meat to the rural downstate base who are going to vote for them anyway. There is absolutely no winning electoral strategy without the suburbs, but since politics have been nationalized, the GOP turns on anyone who tries to move in a centrist direction that might win them suburban voters, and we're basically ... watching them intentionally alienate voters and intentionally become a smaller and smaller minority party. There have been multiple major corruption stories about Democrats that should be infuriating voters! But they're barely getting any press because Darren Bailey's running around the state coughing on people to prove he's not scared of Covid and it's sucking up all the air in the room. They're all campaigning for Fox News gigs, not actual elected office.

And of course this is when a realignment should occur, and the state GOP should start shifting left and appealing to those centrist voters. But they can't, so the system can't seek equilibrium or self-correct, and it's weird uncharted territory for Illinois politics. In fact, the GOP seems to be going out of its way to permanently alienate suburban voters, by going after suburban schools and suburban school board members (for having kids wear masks). They organize buses of activists from other parts of the state (or even out of state) who appear at local school board meetings to make violent threats, and to claim to be local voters. But like, people know their local cranks, and people know these are out-of-towners. And they have to give their names and addresses when they speak, and it's in the public record! I feel like a lot of parents in their 30s and 40s are going to remember for a long time that the GOP was threatening their child's friend's mom and bringing guns to school board meetings. Like, they might not love Covid mitigations, and they might think Democrats are going too far on abortion rights, but they're going to VOTE on the fact that GOP candidates from the other end of the state sent busloads of enraged gun-owners to threaten their neighbors and their schools. And I suspect they're going to vote on that for a LONG time, because it's not the kind of thing you forget, and it's going to be hard to forge any trust with suburban voters that the GOP doesn't want to defund schools and doesn't want to impose an ultra-right-wing "downstate" agenda that will make their kids uncompetitive for college admissions. ("Downstate" in quotes because it's a lot more complicated than that, and *I* was downstate for 12 years, but that's how a lot of suburban voters are going to think about it.)

To bring it back around to these laws that exist to troll Texas -- the Illinois Democratic Party has been, since WWII-ish, a loose coalition of union employees, white ethnic Catholics, Black churchgoers who trend socially conservative, and progressives. Which has meant that most Democrats have NOT wanted to campaign on abortion, because you risk alienating the "white ethnic Catholic" and "Black churchgoer" blocks if you're pro-choice. State legislators have often gone to great lengths to AVOID having to campaign on their votes to protect or expand abortion rights. But this cycle (we vote for governor in 2022), a whole bunch of Democratic legislators who are not in particularly progressive districts are affirmatively jumping up to put their names on abortion legislation -- and GOP legislators keep saying "well, we know that suburban mothers don't want their daughters getting abortions without parental notification, and we'll campaign on that" but they are not campaigning on that. They're campaigning on Trump and Covid. Democrats clearly think the statewide electorate has moved far enough left that abortion is no longer a third rail to avoid at all costs, and Republicans are afraid to campaign on one of their most traditional talking points. I assume that as the election gets closer and dollars from anti-abortion donors roll in to the GOP, we'll see some ads and some lip service from GOP candidates. But a lot of middle-of-the-road Democrats have clearly decided (and must have polling to this effect) that overtly campaigning on abortion rights will win votes and turn out voters, and I have never seen this dynamic in Illinois politics before. The "Big Sort" at work, I guess.
posted by Eyebrows McGee at 7:32 PM on December 12 [11 favorites]


I helped campaign against Newsom as mayor (the first time, when there are real alternatives) and have a lot of objections to many of his choices as Governor of a state I don't live in. But, this is brilliant.

Pointing out that this is a publicity stunt that may be unlikely to become law is missing the point. (Hey, you idiot mime, that's not a wall! There's no wall there! Why are you pretending there's a wall? You idiot!) The right is awful, but they're not wrong that the liberals are reliably humorless and unimaginative. No wonder it's so hard to convince our side to vote.
posted by eotvos at 10:09 PM on December 12 [3 favorites]


Humorless about anything touching on politics, perhaps. Definitely not unimaginative, though. It takes a lot of imagination to see how the US could be made to work for everyone in the face of the past 40 years of right wingers doing everything in their power to burn it all down and the failed experiments of the formerly centrist politicians who now look like commies compared to unhinged foaming at the mouth that the Republican Party has become.
posted by wierdo at 11:21 PM on December 12 [1 favorite]


and vain
posted by thelonius at 11:33 PM on December 12


If one side breaks a ceasefire there is no virtue in refusing to fight back. I don't know if this particular gambit will work but it's better than just sitting back and tut-tutting the Republicans for their ongoing disregard of norms.
posted by Pyry at 12:18 AM on December 13 [7 favorites]


I am stupified that this conversation got this far without anyone mentioning Gavin Newsom, most effective troll of all time, marrying gay people in San Francisco starting in 2004 and starting the snowball that led to Obergefell v. Hodges in 2015.

If Newsom wants to troll for you, LET HIM TROLL.
posted by Scarf Joint at 3:38 PM on December 13 [1 favorite]


The Texas law itself sure seems ripe for trolling by a friendly litigant. It says that only the first successful lawsuit can collect the $10,000. What's to stop a woman from being the first to sue the clinic for her own abortion, claiming the bounty, and then donating it right back to the clinic?
posted by ContinuousWave at 3:49 PM on December 13


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