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Roe v. Wade, the Second Amendment, and America’s Culture of Life

May 20, 2022, 4:24 PM

I am ready to make a bargain with the devil. And the deal is this: Babies for guns.

That’s right, I’m talking about forfeiting a woman’s constitutional right to reproductive freedom if we can end the madness of gun violence. I’ll trade Roe v. Wade for repealing the Second Amendment.

I am so sickened by the horrific massacre in upstate New York that I’m entertaining far-fetched propositions. As the world knows by now, an 18-year-old man allegedly gunned down shoppers at a supermarket in Buffalo, N,Y., killing 10 of them in a matter of minutes. What made the episode more chilling was that the killer is said to have methodically targeted Black people.

The sad thing is that this type of terrorism, whether motivated by racial hatred or sheer madness, will occur again. Just a day after the Buffalo shooting, another gunman attacked parishioners at a church in California, allegedly motivated by hatred of Taiwanese people—and that barely registered on our radar. We basically treat mass shootings as part of the normal news cycle. Despite all the periodic impassioned pleas for stricter gun control, we know it won’t happen.

There was a time when I thought we’d reach a tipping point—that something so unimaginably awful would occur that this nation would be shocked into unity. But if the killing of 20 6-and-7-year-old children at Sandy Hook Elementary School in 2012 didn’t do the trick, why should anyone believe that the Buffalo shootings will make one iota of difference?

So what does our sorrowful history of mass shootings have to do with abortion rights? Well, it seems if abortion rights foes are championing the “culture of life,” they should be natural allies in fighting for effective gun control. How can those who preach the sanctity of fetal life not be fierce advocates of life outside of the womb, too?

Of course, it doesn’t work that way. Quite the opposite. It’s become doctrine in the Republican Party that real conservatives take a hard stance on both the Second Amendment and abortion.

Spotlight on Alito

Though conservatives are not monolithic on these issues, most follow the party’s position. According to the PEW Research Center, only 38% of Republicans (v. 80% of Democrats and 61% of adult Americans) believe abortion should be legal in all or most cases, and only 20% of Republicans (v. 81% of Democrats and 53% of adult Americans) say gun laws should be stricter.

“There are libertarians who take the opposite position on abortion, but they’re a small group,” said Duke law professor Darrell A. H. Miller, a co-director of Duke’s Center for Firearms Law. “Those who take intrusive positions on women’s health now also take a hard stance on the right to bear arms.”

Whether abortion foes share the passion of gun enthusiasts doesn’t matter. The point is they’re complicit in a system that promotes gun culture and slaughter. For a group whose brand is about protecting the lives of the defenseless, its silence on gun violence has been deafening.

Conservative stalwarts seem amazingly oblivious to the contradiction. In the recently leaked draft opinion that would overrule Roe v. Wade, Supreme Court Justice Samuel Alito writes about “life or potential life” and how anti-abortion laws are based on “the sincere belief that abortion kills a human being.” Yet, that concern for life doesn’t seem to extend to measures aimed at protecting citizens, if it means inconveniencing those who bear arms.

“There are a lot of armed people on the streets of New York and in the subways late at night right now. Aren’t there?” Alito asked during oral argument in New York State Rifle & Pistol Association Inc. v. Bruen, a case before the court that challenges New York’s regulation of concealed weapons. “All these people with illegal guns, they’re on the subway, they’re walking around the streets. But the ordinary, hard-working, law-abiding people I mentioned, no, they can’t be armed.”

‘Individual’ Rights

Taking extremist positions on abortion and guns seems to go hand-in-hand. And nowhere is that more apparent than in Texas. Not only did that state pass what had been until recently the most Draconian anti-abortion law in the nation (it banned abortions after the sixth week of pregnancy and allows strangers to sue abortion providers or those who help a woman get an abortion) but Republican Gov. Greg Abbott made it his personal mission to promote a gun-friendly culture in the Lone Star State. Last year, he signed seven pro-gun laws (including the right to carry firearms just about everywhere)—and he did at the Alamo, no less.

While Roe has always been contentious, the issue of gun rights didn’t escalate to its present height until recent history. “The Second Amendment right to keep and bear arms for private purposes like self-defense wasn’t recognized by the Supreme Court until 2008, in District of Columbia v. Heller,” explained Joseph Blocher, a professor at Duke Law School and co-director of the Center for Firearms Law.

“For more than two centuries after the Amendment was ratified, there’s not a single federal case anywhere in the country striking down a gun law on Second Amendment grounds,” says Blocher. “What that means is that, despite all the historical rhetoric, as a matter of federal constitutional law the ‘individual’ right is actually quite a bit more recent than Roe.”

Blocher added that most proposed gun regulations are “nowhere near the constitutional limits. The primary obstacles to gun regulation are political, not constitutional.”

Not only do meaningful gun control measures, such as the critical ban on assault weapons, have zero chance of passing, there will likely be more dilution of existing gun restrictions.

“In states with Republican leadership, when there’s a mass shooting, it leads to a loosening rather than a tightening of gun laws,” said Duke law professor Miller.

Miller also predicts that the Supreme Court will strike down New York’s restriction on concealed weapons. The only question, he said, is how broad or narrow the court will fashion its decision.

“It really depends on how much the conservative majority wants to flex its voting power, and how much it’s willing to go against the will of the majority of Americans,” said Miller. “The leaked draft opinion [that would overturn Roe] seems to show an appetite for the court to be muscular about these types of issues–to spend as much reputational capital as possible.”

In the meantime, I’d like to go back to my original proposition: trading Roe v. Wade for the Second Amendment. Frankly, that strikes me as an easy bargain for the pro-life contingent.

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com