States can’t regulate guns, but they can ban abortions — why?
The Supreme Court has just limited substantially the power of the states to regulate the carrying of guns in public. The justices refused to recognize that different states, or different areas within states, have different needs with regard to gun control. They have ruled that one size fits all under the Second Amendment.
This ignores the reality that the “militia” referred to within the Second Amendment were well-regulated by the states. The words of the Constitution would certainly seem to authorize state-by-state and city-by-city differential regulation. But not for the Supreme Court, which has essentially denied states the inherent power to protect their citizens against gun violence.
The Supreme Court will soon decide another case involving the regulation of abortions. Singing a completely different tune, the same majority which took the power to regulate guns from the states will likely give the power to regulate abortions back to the states.
Why the difference?
Defenders of this decision will argue that the right to bear arms is explicitly guaranteed by the Second Amendment, whereas there is no explicit reference to abortion in the Constitution. This argument goes too far. The Second Amendment itself has limiting language in the words “well-regulated militia,” strongly suggesting that the states have the power to regulate gun ownership. Moreover, even though the word “abortion” is not in the Constitution, the Fourth Amendment guarantees the right of the people, including women, to be secure in their persons. At the time of the Framing, the words “secure” described what we today call “the right of privacy.”
It would seem to follow, even for a constitutional textualist, that both rights — to possess a gun in public and to end a pregnancy in private — have some basis in the Constitution. And both would seem to allow for some degree of state regulation.
Absolutes are anathema to good governance. No right is ever absolute, even the freedom of speech, nor should any right be subject to complete abrogation. Our system of federalism divides the power to regulate between the states and the federal government. Our system of checks and balances also allocates different powers to the three branches of government. The Supreme Court’s decision in the gun case, and its likely decision in the abortion case, distorts these balances.
The reality is that these decisions, both of which fly in the face of long precedents, are solely a function of numbers: After President Trump was able to nominate three justices — one of them improperly, in my opinion — the conservative majority is likely to prevail for a good many years. What is often ignored, however, is that the current conservative majority is anything but conservative. It is a judicially activist majority comprised of justices with agendas. They decide cases more broadly than necessary, and they render decisions depriving the other branches of government of their legitimate powers.
What, then, is to be done to right these judicially imposed wrongs? In an ideal world, the Constitution would be amended to allow reasonable gun control and reasonable access to abortion. But ours is a Constitution that was deliberately designed to make amendments difficult. We have had only 27 amendments in the past two-and-a-quarter centuries.
It is unlikely that either of these two cases could make it through the difficult amendment process, so executive and legislative actions would be required to test the limits of these dangerous decisions. But, in the final analysis, the Supreme Court will have the ultimate authority to determine the limit on actions by the popularly elected branches.
In a democracy, the voices of the people cannot, however, be ignored. And both of these absolutist decisions — the ruling on guns just released, and the ruling still expected on abortion — will not be popular with a majority of Americans who support both reasonable gun control and reasonable access to abortion.
This is the time for political action, not violence. It is the nature of democracy, as well, that you win some and lose some. We will have lost a good deal with these two decisions if the abortion decision turns out as expected, but the process is ongoing — and, as Martin Luther King reminded us, “Let us realize the arc of the moral universe is long, but it bends toward justice.”
Alan Dershowitz, professor emeritus for Harvard Law School, is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Color-Blind Equality in an Age of Identity Politics.” He is also the host of The Dershow on Rumble. Follow him on Twitter @AlanDersh.
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