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The Supreme Court is concerned about its own security — what about ours?

Abortion-rights and anti-abortion demonstrators gather outside of the Supreme Court in Washington, Friday, June 24, 2022. The Supreme Court has ended constitutional protections for abortion that had been in place nearly 50 years, a decision by its conservative majority to overturn the court’s landmark abortion cases. Abortion, guns and religion _ a major change in the law in any one of these areas would have made for a fateful Supreme Court term. In its first full term together, the court’s conservative majority ruled in all three and issued other significant decisions limiting the government’s regulatory powers. (AP Photo/Gemunu Amarasinghe, File)

Chief Justice John Roberts and Justice Samuel Alito have recently expressed concern about their security. Of course, we should all share that concern. But have these justices given the same attention to how their and the other Republican-appointed justices’ expansion of the Second Amendment over the last 15 years has affected the security of the rest of us?

Roberts says in his 2022 Year-End Report on the Federal Judiciary, “A judicial system cannot and should not live in fear.” True enough. But has it occurred to him that the rest of us also should not have to live in fear — of continuing firearm violence?

Before 2008, the Supreme Court never said there was a constitutional right to own a firearm. That did not mean people could not own one. Many did. It meant Congress and the state legislatures were free to enact legislation to promote firearm safety and limit firearm violence.

Think of cars. There is no constitutional right to own a car. That does not stop people from owning one if they can afford it. But it means licenses can be required, seatbelts can be mandatory, speed limits can be imposed, drunk driving can be prohibited and drivers can be obligated to obey the rules of the road.

In 2008, the then five Republican-appointed justices for the first time ruled the Second Amendment creates a constitutional right to own a firearm for self-defense — in the home. That prevented Congress from enacting certain gun-safety measures to protect our security. Predictably, it started a wave of litigation by “gun rights” organizations to strike down more firearm safety laws.

Roberts’ 2022 Report thanks Congress for enacting the Daniel Anderl Judicial Security Act last year. But in June of the same year, in the court’s Bruen ruling, the now six Republican-appointed justices struck down New York’s law to safeguard our security by limiting the concealed carry of a firearm. They granted individuals the “right to carry a handgun for self-defense outside the home” — not just inside one’s home. That further expanded the Second Amendment, and correspondingly further limited the space available to our federal and state governments to protect us from firearm violence.

It would be hard to find a New Yorker whose concern about our security has not increased as a result of this ruling:

The Deputy Police Commissioner of New York City said of the court’s ruling that “the mayor, the police commissioner, and every police officer has a grave concern that putting more guns on the streets of New York is not going to come to a good end.” Deaths and injuries from firearms (including suicide) are already far too high.

It does not and should not have to be this way.

There is nothing in the text of the Fourteenth Amendment, which the Republican-appointed justices have ruled makes the Second Amendment applicable to the states, or the Second Amendment itself, that mandates these justices’ decision to create a constitutional right to carry a firearm specifically for self-defense, let alone a concealed firearm. In fact, those amendments say nothing about that. The Second Amendment actually gives the states the right to protect their own state security by having militias in which their citizens bear arms: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Justice Clarence Thomas, who wrote the Bruen decision, himself previously explained: “Traditionally,” states have “prohibit[ed] the carrying of weapons in a concealed manner” and those laws “neither prohibit nor broadly frustrate any individual from generally exercising his right to bear arms,” but he ignored that in Bruen.

The Republican-appointed justices have themselves espoused other methods of “interpretation” in other politically charged matters that would produce the opposite result in Bruen.

For example, in Dobbs, a ruling released only three days after Bruen, five of those six justices used a different approach when they eliminated the constitutional right to abortion. For the last 50 years the Supreme Court had found the liberty clause of the Fourteenth Amendment grants that right, but the Dobbs decision completely changed course on the grounds that the clause does not mention abortion, abortion is supposedly different from other rights because it destroys “potential life,” and the people, through their elected state representatives, should be able to make their own decisions on abortion.

If the absence of an express reference to the right to abortion in the Fourteenth Amendment now means there is no such right, why doesn’t the absence of an express reference to a right to carry a firearm for self-defense in the Fourteenth Amendment (or the Second Amendment) also mean there is no such right?

If the destruction of “potential life” makes abortion different, why doesn’t the continuing destruction of actual life (guns are now the No. 1 cause of death in children) also make firearms different? And if the people, through their elected state representatives, should be able to decide on abortion, why shouldn’t they also be able to regulate firearm safety?

In the Supreme Court’s decision in West Virginia v. EPA, just four days after Bruen, the six Republican-appointed justices used yet another different approach to strike down the Obama administration’s EPA’s Clean Power Plan to protect our health and environment and forestall global warming. In that case, the Clean Air Act required the EPA to impose the “best system of emission reduction.” The EPA found that required less use of coal to generate electricity. But these justices said the Clean Air Act’s direction was not clear enough. They said the “history and breadth” of the authority the EPA asserted and its “economic and political significance” “provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.”

If the textual requirement that the EPA impose the “best system of emission control” is now not clear enough to authorize the EPA to impose the best system of emission control, how is the Second Amendment’s grant to the states of the right to protect their security by having a well-regulated militia clear enough to grant an individual a constitutional right to carry a concealed firearm for self-defense outside the home that has nothing to do with a well-regulated state militia?

And why doesn’t the lack of “history” of any such “right” and its “breadth” and “significance” provide far more than “a reason to hesitate before concluding that” the founders “meant to confer” it?

Can we now hope that the Republican-appointed justices’ present focus on their own security, and their own valid need to live free from fear, will be a wake-up call that they should focus on the same valid needs of the rest of us? “Gun rights” should not come before our security, our autonomy, our health, our environment, our lives and our children’s lives. The founders left it to us, the people, through our elected representatives, to decide what firearm safety measures we wish to enact, just as we do with cars. The Supreme Court should not reduce our security by undoing our elected representatives’ reasonable efforts to reduce firearm violence.

Michael J. Dell is a New York lawyer who litigates and writes about constitutional issues. He filed an amicus brief for the American Medical Association, the Medical Society of New York, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry in the Bruen case supporting New York’s concealed carry law.

Tags John Roberts Samuel Alito

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