The Firearms Policy Coalition Targets S.B. 8 on the Merits

In a bit of strange-bedfellows briefing, Erik Jaffe has filed a merits brief for the Firearms Policy Coalition in Whole Women’s Heath v. Jackson on the side of the petitioners. As with the FPC’s amicus brief supporting certiorari , this brief warns that barring pre-enforcement litigation against S.B. 8 could threaten other constitutional rights, as other states might enact similarly structured laws to that limit gun possession, political speech, or other constitutional rights. From the beginning of the merits brief : This case in its current posture is not about any debate over the existence or scope of any constitutional right to abortion. Indeed, Amicus takes no position on such questions, which are before this Court in other cases. Rather, this case is about how far a State may go in deterring the exercise of any and all individual constitutional rights, as such rights are determined by this Court’s cases. Texas’s novel scheme for infringing upon and chilling the exercise of the right to abortion under this Court’s Roe and Casey decisions, if allowed to stand, could and would just as easily be applied to other constitutional rights. That result is wholly anathema to our constitutional scheme, regardless what one thinks of abortion or, indeed, of any other hotly debated constitutional right, such as the right to keep and bear arms. 1. Laws that deter or chill the exercise of constitutional rights violate those rights. Such deterrence or chill constitutes a present harm for which litigants can seek present […]

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