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Will the Supreme Court apply a double standard to abortion and gun rights?

The recent mass shootings in America, and the leaked draft opinion overturning Roe v. Wade, have converged just ahead of a momentous time for the Supreme Court. The court soon will release decisions on the constitutionality of a New York State restriction on carrying guns in public, and a 15-week abortion ban enacted by Mississippi. It is widely expected that the court’s conservative majority will expand gun rights and eliminate abortion rights. Many Americans undoubtedly will oppose those decisions.

For such divergent results to be accepted, and to preserve the court’s legitimacy, Americans must be convinced that the justices are impartially applying consistent rules of law to both issues. And this is where the conservative justices may be courting trouble. It appears they are about to fall into the trap of purporting to apply law but looking like results-driven political actors.

If something like the leaked abortion opinion ultimately becomes the court’s decision, its legal reasons for overturning abortion rights would mandate also overruling gun rights (i.e., the Second Amendment rights it recognized in District of Columbia v. Heller). This would not mean Americans could not have guns. Like abortion if Roe is overturned, states would decide these matters (as they did prior to Roe and Heller), rather than having rigid national rules foisted on them by five unelected justices.

Since the conservative justices favor a historic approach to interpreting the Constitution (as opposed to the more “living” approach their liberal colleagues favor), they likely will say Roe lacks a strong basis in that document’s plain text, original understandings and broader objectives. Indeed, the leaked draft relies heavily on such reasoning. But assessed honestly, the historic case for an individual right to have guns is equally deficient in these aspects.

Start with the Constitution’s text and original understanding regarding abortion. At best, the conservatives may say, that charter provides some form of protection for “liberty” (the government shall not “deprive a person … of liberty… without due process of law”) but not a specific right to abortion. Moreover, they will insist, specific liberty rights must be “deeply rooted” in American history and traditions for judges to legitimately recognize them as formal constitutional rights. And here they still stress that in the course of American history, certain abortion practices were tolerated but fairly early on became the target of state prohibitions.

Yet with respect to a personal gun right, the Constitution’s text and historical understandings are similarly lacking. The Second Amendment says “the right of the people to keep and bear Arms shall not be infringed,” yet the text preceding those words ties that right to service in a state militia (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep…”). The reason for that was well understood when the amendment was adopted. Opponents to adopting the Constitution wanted greater assurances that if they authorized the creation of a federal military as part of that charter, it would not be used to disarm the states’ traditional fighting forces (i.e., their official militias staffed by part-time citizen soldiers who were expected to supply their own guns for that service).

So, how did Heller derive an individual self-defense right out of this text and understanding, particularly when the court itself long had tied that amendment to militia service prior to Heller?

In a curious twist of logic, Justice Antonin Scalia, who wrote the Heller decision, acknowledged the militia purpose of the Second Amendment but added that early Americans also “undoubtedly” understood it to encompass a personal gun right grounded in ancient English law.  The problem with this reasoning, however, was its weak historical underpinnings. As Justice Stephen Breyer pointed out in a later case, some eight out of nine professional historians of old English law argued that Heller was simply wrong on this point — that the English right also was all about service in an official militia.

And there is the rub: If the current conservative majority is principled and honest about applying constitutional text and understandings to both abortion and gun rights, it should conclude that the bases for both are, at best, highly contestable. If Roe should be overturned, then so should Heller. 

With regard to the Founders’ broader constitutional objectives, in the abortion case the conservatives also may rely on “federalism” concerns — the principle that powers not given to the federal government by the Constitution were meant to remain with the states. Since abortion is not addressed by that charter, the people of each state should have the right to determine the proper balancing of interests between a woman’s reproductive freedoms and protecting fetal life based on their own communal values and beliefs — as was the case before 1973.

Improperly arrogating matters to the federal level, conservative justices have said, robs people of this right. They also have argued that depriving people of their say on controversial topics leads to profound polarization.

But if such concerns about local determination are strong in the abortion context, they are even stronger regarding gun rights. Gun practices and needs vary widely in America and involve a complex balancing of interests. Do the personal safety or recreational benefits of gun possession outweigh its obvious costs in terms of the potential for violence and accidents? It seems clear that county supervisors in a heavily rural area would approach that question much differently than officials of a big city that’s drowning in gun violence. Do we really want a few judges imposing a one-size-fits-all solution to these issues?

In overturning abortion rights, the new majority may further argue that the Founders separated power in the Constitution in part to ensure that judges did not act improperly as lawmakers, deciding important issues of public policy. Judges institutionally lack legitimacy and competence to make difficult decisions about when life begins, or when to respect the medical needs and choices of women.

Again, concerns about judges staying in their own lane are equally as strong in the gun context.  Who is better equipped to make hard choices about whether gun regulation harms people more than it protects them? Appointed judges, who may have little or no experience with guns, or the elected representatives of the people in a given locality? The answer seems obvious.

And to the extent that the court’s abortion ruling supplements historical arguments with an outright balancing of interests by the justices themselves — as Justice Samuel Alito appeared to do in the leaked draft by arguing that the Roe court was wrong in recognizing an abortion right because of the strong countervailing interests in protecting fetal life — what about the similar countervailing interests that counsel against recognizing a gun right (i.e., protecting life by making gun possession and violence less likely)?

Conservative judges proudly don the mantle of “originalism” because it supposedly keeps judges from becoming “activists” and decreeing the existence of constitutional rights based on their personal beliefs. Let’s hope the conservatives’ adherence to this philosophy is not limited to their disfavored rights.

Justice Amy Coney Barrett recently urged people to judge the court by asking, “Is its reasoning that of a political or legislative body … or is its reasoning judicial?” Reasoning applied inconsistently and hypocritically to abortion versus gun rights would certainly smack of the work of politicians, rather than judges. And that’s the last thing the court needs right now.

Barry P. McDonald teaches constitutional law, First Amendment law, and copyright law at Pepperdine University’s Caruso School of Law. He is a recognized expert on constitutional law and the U.S. Supreme Court. 

Tags abortion rights District of Columbia v. Heller Dobbs v. Jackson Women's Health Organization Gun rights Supreme Court

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