University of Pennsylvania Journal of Constitutional Law

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Can States Restrict the Constitutional Right to Bear Arms by Following the Design of Texas Bill 8?

Amin R. Yacoub * & Becky Briggs ** | 25.2 | Citation: Amin R. Yacoub & Becky Briggs, Can States Restrict the Constitutional Right to Bear Arms by Following the Design of Texas Bill 8, 25 U. Pa. J. Const. L. 404 (2023).

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In September 2021, the Texas Bill 8 (“the act”) or (“S.B. 8”) was put into effect. The act banned abortion in Texas that takes place after six weeks of pregnancy — reversing the US Supreme Court decision of Roe v. Wade. To achieve that end, the Texas legislature uniquely designed the act to withstand legal and constitutional challenges. The Texas legislature conferred the enforcement of the act upon private individuals rather than Texas state officials. By transferring enforcement to private individuals, Texas officials cannot be subject to injunctions preventing them from enforcing the act. Further, private individuals cannot be subject to injunctions either, as they lack an official capacity to represent Texas in enforcing the act. This leaves the act immune against most challenges. On the other hand, the number of gun-violence deaths and injuries have spiked in the United States. The correlation between the Second Amendment right of bearing arms and the prevalent gun violence in the United States cannot be denied. In this research, we attempt to answer the question of whether states may adopt the Texas Bill 8 unique design as a backdoor to block or restrict the Second Amendment right of bearing arms to achieve public safety.

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* New York Attorney; Doctoral (PhD/SJD) Candidate at University of Virginia School of Law.

** Criminal Defense Attorney licensed in Colorado, Virginia, and Federal District Courts.