MORE GUNS, FEWER ABORTIONS

 

In one week, the United States Supreme Court took the country to a more dangerous place. First, a majority of the Justices limited a state’s authority to regulate open carry of a firearm. This decision was quickly followed by an opinion, which overturned Roe v. Wade, returning the power to regulate abortions to the individual states. It is likely that more Americans will die as the result of expanded gun violence and substandard maternity care, than life preserved by prohibiting abortions in some states. This irony did not occur to the Justices or to Republicans praising both opinions.

For conservative members of the Supreme Court the concept of “originalism” has become a convenient theory.  It now justifies the Court’s reshaping of our society, grossly out of touch with the rest of the world and the expectations of Americans. The historical standard for judging gun control has returned to the 1790s and to the 1850s for abortion.

Originalists believe that the constitution must be interpreted based on the original understanding "at the time it was adopted.”  These Justices claim that the original meaning of constitutional texts can be discerned through legal documents from which the text was borrowed. In addition, intent can be inferred from historical events and public debate that gave rise to an original constitutional provision. 

Originalism is best contrasted as a theory of constitutional interpretation with the more liberal concept of “living constitutionalism.” Living constitutionalists believe that the meaning of the text changes over time, as modern social attitudes change on subjects ranging from the environment to same sex marriage. These living changes to the Constitution can occur even without the adoption of a formal amendment.

In a 6-3 decision the Supreme Court struck down New York’s century-old gun law against concealed carry. Justice Clarence Thomas, writing for the majority, set out to upgrade the gun carry provision of the Second Amendment to a core constitutional right equal to free speech. In fact, there is little evidence that this was the original intent of the founders who wrote the Constitution. Instead, Thomas cherry-picks portions of old opinions and misstates American history to support his theory. A blistering dissent by liberal justice Stephen Breyer calls the Thomas approach “law office history” an unsound form of legal analysis that distorts history to fit the desired ends favored by a justice.

Shortly after the gun carry case was decided, the bombshell opinion rejecting abortion was published in a 5-4 decision. Justice Samuel Alito wrote for the majority: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”  

Most troubling, there is now precedent for overturning any number of fundamental entitlements that purportedly do not have grounding “in our nation’s history.” The list of liberties now open to attack include interracial marriage, contraception, the right not to be  sterilized, the “right to engage in consensual” and private “same-sex intimacy” and the right to same-sex marriage.

There has not been a Supreme Court this far to the right since the early days of the New Deal. At that time, the only significant rights recognized by the conservative Court were of large corporations and southern segregationists. Nonetheless, many Supreme Court watchers were confident that the present Court would not upset the social fabric of America and interpret the Constitution by the originalist standards of 1787.

First, it was felt that the application of case precedent (stare decisis) would constrain right-wing overreach. In the past conservative Courts have reached liberal results because their decision was the best reading of existing law. Moreover, the three most recently confirmed Justices had made promises under oath to the Senate that stare decisis would be followed in deciding cases.

Second, it is important for the Court to present an appearance of non-partisan openness and legitimacy on controversial decisions. This was particularly true at a time when Justice Thomas’s’ wife was under scrutiny for her involvement in the former president’s election fraud scheme.

Third, observers felt the Court would be sensitive to public opinion on controversial constitutional issues, so that their decision will be widely accepted. This would be important before invaliding a long-standing gun carry regulation or reversing a fundamental right like abortion that has stood for fifty years.

The Court watchers were wrong. These two opinions make it clear that this Court will ignore case precedent, will ignore the efforts of Chief Justice Roberts to maintain the appearance of a court above partisan politics and is willing to give up its legitimacy by banning long held regulations and liberties.

I will conclude with the apt comments of Jeannie Suk Gersen in the New Yorker:  “It is galling to read the Court’s righteous condemnation of Roe v. Wade as an exercise of “raw judicial power,” and its self-portrayal as a picture of proper judicial restraint. It is hard to imagine something more like an exercise of raw judicial power than the Court’s removal of the right to abortion, which is precisely what these Justices were put on the Court to achieve. As the dissent put it, the Court is “rescinding an individual right in its entirety and conferring it on the State, an action the Court takes for the first time in history.” (New Yorker June 24, 2022)