OSD 133: Maybe the real law was the friends we made along the way
Laws are fine, culture is final.
There’s a contentious social issue that has had a number of landmark Supreme Court rulings made about it. The states that liked those rulings have leaned into them over time. The states that didn’t like those rulings have done their best to chip away at them, with new laws that use ever more creative gymnastics to make their restrictions stick.
You can probably guess the issue (it was in the news in Texas last week), but the real point is that the specific issue isn’t the point — this dynamic is how pretty much all contentious issues play out.
In “OSD 128: Nobody needs an assault lawyer” and “OSD 129: The lawsuit accusing gun makers of complying with the law”, we dove into some clever tort-based strategies that gun control groups are funding as a way (or at least an attempt) to pass gun laws without needing to, well, pass a law. This new law in Texas (on a different issue) may be a preview of a tactic we’ll see a state try to apply to guns in the future.
Texas used a new enforcement mechanism to confound its opponents in court. Instead of making it a criminal offense to perform or assist in carrying out an abortion after 6 weeks and relying on government agents to enforce the ban, they made it a civil offense and empowered regular people to sue as an enforcement mechanism.
This complicated things for pro-choice activists fighting the law. It is much easier for a court to temporarily restrain a government agent from enforcing a law while the case makes its way through the legal system. But it’s a lot harder to enjoin millions of civilians from filing civil suits.
From there, it’s not hard to imagine the same approach being used to, say, allow people to sue gun shops for merely operating, or for not instituting extra-legal vetting procedures. The tactics described in OSD 128 and OSD 129 are already halfway there.
That’ll all shake out over time. The question is how it shakes out. People usually look to legislatures or courts to protect them from this sort of thing — to say that your side is right, the other side is wrong, and those mean folks on the other side have to leave you alone. But “a court should step in to force <my preferred outcome>” is precisely the wrong lesson. If you’re at that point, you’re already too late. The real lesson is to not get into the position where you need a court.
This is a story about where to focus your efforts. Courts, legislatures, and politics are downstream of culture — sooner or later, the culture gets its way. Fairly or not, through the “proper” process or not, it’ll happen.
So if the courts are friendly to, say, gun rights but the culture isn’t, then the courts can’t help. If the courts are hostile to gun rights but the culture is friendly, then the courts won’t matter. Either way, culture is the high-order bit. Focus on creating fertile ground there, and everything downstream will get a lot easier.
This week’s links
A cool new educational site with beginner-oriented videos.
Does what it says on the tin. If you don’t know much about ammo, this video is a good place to start.
An anti-criminalization article from an unlikely source. Don’t read too much into it, but it’s a sign of progress that articles like this are popping up more and more.
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