Abortion and Gun Control
“You’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion. . . but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process?”
Justice Brett Kavanaugh, looking for a "yes" answer. He got it.
The Supreme Court majority has a policy: Dance with the one that brought them to the dance.
The abortion case tops this week's news, pushing out the gun control case of a month ago. In the gun case, New York State Rifle & Pistol Association Inc. v. Bruen, the Justices' questions pointed in the direction of voiding a New York State law that required permits for people to carry concealed weapons. Although the Court noted there might be justification for stopping people from carrying concealed weapons into courtrooms like theirs or crowds at Yankee Stadium, their questions implied that they thought the right to bear arms trumped the interest in states to regulate guns. The 2nd Amendment reads: 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. The Court focuses on the second half of the Amendment. Rights are rights.
The abortion issue appears to be heading in the opposite direction. By a 6-3 majority, the Court may preserve some constitutional right to an early-term abortion, but it will modify Roe v. Wade to allow states to choose their own cutoff date on abortions. Alternatively, by 5-4 majority, the Court may outright reverse Roe v. Wade. Chief Justice Roberts is the swing vote.
The American system gives authority to both states and the national government. The Civil War and subsequent Amendments brought more power to the central government. The 13th, 14th, and 15th Amendments established rights which, imperfectly, created national standards bearing on equality of all citizens. The constitution does not address abortion directly. The constitutional right to an abortion was found in the 4th Amendment rights of privacy and in the 14th Amendment's equal protection clause. Some questioned that such a right exists. Unlike most Supreme Court rulings that settle in with time, this one got more contentious.
Without the issue of guns, the Supreme Court might have started a multi-decade movement toward greater federalism, with the intention of pushing more hot potato issues toward the states. It would be part of a long-term effort to re-establish the credibility of the Court as a non-partisan, non-political institution.
Guns confound that project.
Permitless open carry in Oklahoma
The conservative movement that put the current members on the bench sometimes hides within the principled language of federalism and state's rights. The gun issue reveals the reality of the Supreme Court majority’s compass. The conservative agenda reflects policy goals on the particular interests of its component parts. Gun rights advocates have a "not one inch" policy. This means open carry of AR-15s, bought without records, possessed even by people with adjudicated mental disease, and carried openly nearly anywhere, It is their litmus test. An u\Uncompromising gun rights policy is best defended by making it an absolute right locked into the Constitution. Ending abortion is another policy goal of a huge constituency, but this one is best defended by letting conservative legislatures have their way making laws banning it.
The Supreme Court is not rudderless. They are following a path. It isn't principle. It is loyalty. They are dancing with the team that brought them to the dance.
"Don't let the green grass fool you
Don't let the moon get to you
Dance with the one that brought you and you can't go wrong."