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Supreme Court Abortion, Gun Rights Questions Speak Volumes

Jan. 3, 2022, 9:00 AM

The U.S. Supreme Court justices appointed by Republican presidents repeatedly assure us they respect precedent, do not decide crucial constitutional questions based on their own policy preferences, and are not legislating from the bench. A simple change in court personnel should not dramatically alter the rule of law.

But those assurances are hard to square with the inconsistent way they handled the recent oral arguments for the two most politically charged cases of the current term: Mississippi’s effort to eliminate the constitutional right to abortion, and the NRA’s attempt to overturn New York’s law barring the concealed carry of a firearm without a permit.

How the Court Failed to Apply Neutral Principles

The questions and comments at the arguments should alarm anyone who seeks to live in a fair, equal, and safe society where the Supreme Court respects precedent and applies the same neutral principles to every case.

Here are five stark examples of where that did not happen.

First, Justice Clarence Thomas asked the abortion rights counsel, “What constitutional right protects the right to abortion,” but he did not ask the NRA what constitutional right protects the right to carry a concealed handgun. The Republican-appointed justices simply assumed the Second Amendment grants that right.

Chief Justice John Roberts asked, “So why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?,” and Justice Samuel Alito wondered how the New York law was “consistent with the core right of self-defense.”

The extreme difference in these justices’ approach is hard to comprehend. The court decided almost 50 years ago that the right to abortion is protected by the right to liberty under the 14th Amendment but has never ruled whether there is a right under the Second Amendment to carry a concealed weapon.

The Republican-appointed justices say they espouse a textual interpretation of the Constitution, based on original intent, but there is nothing in the Second Amendment that even hints at that right: “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.”

“Keep[ing] and bear[ing] Arms” is not the same as hiding them on your person. Thomas himself has previously explained that “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.”

Justice Antonin Scalia similarly wrote in his landmark 2008 Heller opinion that held that individuals have a right to bear arms in their homes, “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” Then Judge Brett Kavanaugh emphasized that “Heller affirmatively approved … concealed-carry laws.”

Second, Alito commented at the Mississippi abortion law argument that the key question was whether to “overrule” Roe v. Wade and Planned Parenthood v. Casey, which recognized the right to abortion, “in their entirety.” But at the NRA argument to create a new gun right, Roberts said “generally [we] don’t reinvent the wheel” and he would look to Heller.

Third, Roberts asked whether the Mississippi abortion law is consistent with “the standard that the vast majority of other countries have”—the abortion rights counsel explained it is not. But he did not similarly ask the NRA why it seeks a right to concealed carry that is not available in virtually any other developed democratic nation. Instead, Kavanaugh emphasized: “we should focus on American law.”

Fourth, Kavanaugh asked why the court should not leave it to the states to decide whether to permit women to exercise a right to abortion, and commented “there will be different answers in Mississippi and New York.” But there was no such question about leaving concealed carry to the states, so New York can decide whether to allow gun violence to get worse.

In 2020, U.S. homicides increased by the largest amount since the FBI began providing this data in 1960 and a record 77% of the homicides were committed by firearms. Yet, Alito asked why people who work late in Manhattan should not be able to carry concealed weapons on their commutes back home on public transit.

Kavanaugh said he had not “see[n] any real evidence” that New York’s law leads to less crime, even though that evidence was made clear to the court. Many cited studies show New York’s law saves lives. One found states with similar laws have 13% fewer gun homicides than those without—a difference that saved almost 4,000 lives in a decade.

Fifth, Alito suggested the right to abortion is not deeply rooted in the history and tradition of the American people because some states abandoned that right in the mid-1800s, even though they did so based on the discriminatory view that a woman’s proper role was as a wife and mother. But when it came to New York’s 100-year-old concealed carry law, he questioned whether it could reflect tradition because some have argued it was designed to discriminate against Italian-Americans and African-Americans—a controversial claim that New York’s counsel disputed.

Listening to these inconsistent questions and casual comments was enormously troubling. If they are an indication of how the Supreme Court will rule next year, we will all be less safe than we are now, half the population will lose a fundamental 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 a founding director of Americans for Firearm Injury Reduction in Medicine and a partner at Kramer Levin Naftalis & Frankel LLP. He co-authored an amicus brief for the American Medical Association, the Medical Society of the State of New York, the American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry in support of New York’s concealed carry law. He also represents women who seek to protect their constitutional right to abortion.

This article represents his personal views and does not necessarily reflect the views of his employer or clients.