The law as a last refuge
As we are in the midst of the World Cup—genuine football in which the players mostly use their feet to propel a ball about—I may as well trot out my oft-used analogy of the laws that protect our basic rights as a object being kicked about in the effort to score political points, rather than as a tool to secure a more perfect union.
One example of this is California’s recent law that is meant to require plaintiffs and their attorneys to pay the legal costs of the state’s legal team in any suit against a gun control measure in which the plaintiffs do not win entirely. The exact wording is written in Legalese, and it is not clear how far a case must go from initial hearing to a final decision by the U.S. Supreme Court before the fee penalty takes effect, and the law also promises to dump the ability of private parties to sue over someone else’s manufacture or sale of naughty gun bits if Texas ever repeals its equivalent law conferring a similar privilege in the case of abortions performed after around six weeks of pregnancy. But the bottom line is that in provision after provision, California is only the latest—unless I have missed something in the news—player in the troll games that have become the process of conducting the law in this country.
What California is trying to do here is to make lawsuits too risky for ordinary persons to attempt. The National Rifle Association is treated as the bogeyman by gun control advocates, but the reality is that said organization, even if it still has the funds, tends to get involved only after others have built a winning case. The real threat to onerous gun laws is to be found in individual plaintiffs like Heller or McDonald or in small law firms who are willing to seek relief in cases of rights being violated, rather than large-scale fundraising being put in danger.
As has been pointed out elsewhere, this law is an attack not only on gun rights, but also on the First Amendment’s protection of our right to petition the government for redress of grievance. Letter writing and marches often achieve nothing of substance, and the ballot box on too many occasions only defends those who are in the majority. This leaves the courts as the key and likely sole option for anyone who has a case to make against the law as it currently stands.
This fee-shifting provision in California’s law is nothing new. Under English law, winners of lawsuits have good reason to expect to have their expenses paid by the losers, the goal being to prevent frivolous actions, but in America, unless the case was clearly a bad use of the law or the loser is shown to have engaged in wrongdoing, we each must pay our own, but nobody else’s lawyers. The law has become a spendy affair since the days when someone like Atticus Finch or the real Clarence Darrow might accept a ham or a dozen eggs in payment, but it is a sound principle that when necessary, we all get to test its obligations in the courts, especially when those in power do not enjoy being challenged.
There is yet another problem with California’s attack on plaintiffs suing. Court hearings ideally will be about the merits, the facts and the law, of a case, but the reality is that the judge might be having a bad day when an important argument is being made, or one of the attorneys might be having a bad day while making an argument, or a justice on one of the higher courts may hold political objections to one side’s theory of the case, or on and on. This is unfortunate, and we have been blessed by the framers of our legal system to have a fairly liberal body of laws that have limits in how far they can go and a process for changing the ones that are still too much of a burden, but to say that someone can be penalized for the temerity of filing suit if the case is not a complete victory is to drag the law across the borders of territory in which such matters are settled in trial by combat, not in any measure of a fair evaluation. This is the notion that if we strike at the king, we had better kill him, an all-or-nothing situation that preserves the privileges of those in power.
We are already facing a state of affairs in which the law is treated as meaning whatever those who wield it want it to say, thanks to the frequent inability of Congress to enact legislation, thereby passing their obligations on to presidents with executive orders, and lately to a thankfully former president who repeatedly in office and without cast doubts and a bungled insurrection against the validity of our elections. If the law is to be used in this manner, how can it be respected as our best efforts at a just society?
And if we go beyond that particular pale, what good will California’s laws, gun control and otherwise, do in the resulting war of all against all?