Abortion by Supreme Court, gun rights questions speak volumes
Republican presidential-appointed U.S. Supreme Court justices repeatedly assure us that they respect precedent, do not decide critical constitutional questions based on their own political preferences, and do not legislate from the bench. A simple change in judicial personnel should not radically alter the rule of law.
But those assurances are hard to reconcile with the inconsistent way they have handled recent oral arguments for the two most politically charged cases in the current term: Mississippi’s efforts to eliminate the constitutional right to abortion and the NRA’s attempt. overturn New York law prohibiting the concealed carrying of a firearm without a license.
How the Court failed to apply neutral principles
Questions and comments during arguments should alarm anyone seeking to live in a just, equal and secure society where the Supreme Court respects precedent and applies the same neutral principles to every case.
Here are five striking examples where that did not happen.
First, Justice Clarence Thomas asked the abortion rights lawyer, “What constitutional law protects the right to abortion,” but he did not ask the NRA what constitutional right protects the right to carry. a concealed handgun. Republican-appointed judges simply assumed the Second Amendment granted that right.
Chief Justice John Roberts asked, “So why do you have to show in this case, convince someone that you have the right to exercise your Second Amendment right?” And Judge Samuel Alito wondered how New York law was “compatible with the fundamental right of self-defense.”
The extreme difference in the approach of these judges is difficult to understand. The court ruled almost 50 years ago that the right to abortion is protected by the liberty right under the 14th Amendment, but never ruled whether there is a right under the Second Amendment. carry a concealed weapon.
Republican-appointed judges say they espouse a textual interpretation of the Constitution, based on the original intent, but there is nothing in the Second Amendment that even hints at that right: “A well-regulated militia, being necessary for the security of a free state, the right of the people to own and bear arms, must not be violated.
“Dungeon[ing] and bear[ing] Weapons ”is not the same as hiding them on your person. Thomas himself has already explained that “traditionally” states have “prohibited[ed] concealed carrying of weapons ”and these laws“ do not largely prohibit or prevent an individual from generally exercising his right to bear arms ”.
Judge Antonin Scalia wrote similarly in his 2008 landmark book Heller according to an opinion that individuals have the right to bear arms in their own homes, “the majority of 19th century courts examining the matter ruled that bans on carrying concealed weapons were legal under the Second Amendment or analogues. states ”. Next, Judge Brett Kavanaugh noted that “Heller affirmatively approved… concealed transport laws.
Second, Alito commented on the Mississippi abortion law argument that the key question was whether to ‘cancel’ Roe vs. Wade and Planned Parenthood v. Casey, which recognized the right to abortion, “in its entirety”. But during the NRA’s argument to create a new gun law, Roberts said “generally [we] do not reinvent the wheel ”and he would seek to Heller.
Third, Roberts asked if Mississippi’s abortion law meets “the standard that the vast majority of other countries have” – the abortion rights lawyer explained that it does not. But he did not similarly ask the NRA why it is asking for a hidden port fee that is not available in virtually any other developed democratic country. Instead, Kavanaugh emphasized, “we should focus on American law.”
Fourth, Kavanaugh asked why the court should not leave it up to states to decide whether or not to allow women to exercise their abortion rights, and commented, “There will be different responses in Mississippi and New. York ”. But there was no question of leaving the porterage concealed in the United States, so that New York City can decide whether to allow gun violence to escalate.
In 2020, homicides in the United States increased the most since the FBI began providing this data in 1960 and a record 77% of homicides were committed by firearms. Still, Alito asked why people who work late in Manhattan shouldn’t be able to carry concealed guns when commuting by public transport.
Kavanaugh said he had not “seen[n] any real evidence ”that New York law leads to fewer crimes, even if that evidence has been clearly presented in court. Numerous studies cited show that New York law saves lives. One found that states with similar laws had 13% fewer firearm homicides than others, a difference that saved nearly 4,000 lives in a decade.
Fifth, Alito suggested that the right to abortion is not deeply rooted in the history and tradition of the American people because some states abandoned this right in the mid-1800s, even though they did so on the basis of the discriminatory opinion according to which the proper role of a woman was that of wife and mother. But when it comes to New York’s century-old covert porterage law, he questioned whether it could reflect tradition, as some have argued that it was designed to discriminate against Italian and African Americans, a controversial claim that the New York attorney disputed.
Listening to these inconsistent questions and flippant comments was extremely disturbing. If they are any indication of how the Supreme Court will rule next year, we will all be less secure than today, half the population will lose a basic constitutional and human right, and the stature of the court will be. seriously diminished.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
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Michael J. Dell is one of the founding directors of Americans for Firearm Injury Reduction in Medicine and a partner of Kramer Levin Naftalis & Frankel LLP. He has co-authored an amicus brief for the American Medical Association, the New York State Medical Society, the American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry in support of the New York Concealed Carrying Law. He also represents women who seek to protect their constitutional right to abortion.
This article represents his personal opinions and does not necessarilyreflect the point of view of their employer or clients.