The Supreme Court of the United States –– SCOTUS, for us legal junkies –– has people pretty riled up these days. In one memorable week in June, SCOTUS declared that the public carrying of a gun was a fundamental constitutional right that states must not interfere with; and, the next day, declaring that women no longer had a constitutional right to terminate her pregnancy in the first 15 weeks –– leaving it up to the states to decide whether to grant or terminate that right. Justice Alito’s majority opinion made clear that women should never have had that right in the first place, that the decision in Roe v. Wade was “egregiously wrong.” The two cases are N.Y. State Rifle and Pistol Assn. v. Bruen, and Dobbs v. Jackson Women’s Health Organization.
There is abundant irony in the Court’s finding on one day that no state has the right to make individuals justify a need to carry lethal weaponry in public, while the next day finding that nothing in the Constitution forbids a state from completely curtailing a woman’s right to bodily autonomy. A major part of recent conservative thought is a focus on federalism, the idea that states should retain maximum power to determine what is best for their citizenry. Now, whether it is best for their citizenry or not, state legislatures so inclined can absolutely bar abortions, even for cases of rape, incest, or the mother’s health and safety. Some have already done so or plan to. And states who want to write gun safety legislation now face lawsuits from those who will claim that any limits on gun ownership and use are unconstitutional. All of this, sadly, comes within a month of gruesome mass shootings of churchgoers in Buffalo and fourth graders in Uvalde, Texas. And, since this blog entry was first written, we now have the Fourth of July massacre in Highland Park, Illinois. As usual, young men who have no sense of honor and decency were permitted to buy weapons of fast and horrific destruction, where background checks, or higher age limits, seem like sensible reforms.
But as to what states can or cannot do, it’s perfectly legal for the Court to do approach different issues differently. When John Marshall notably said in Marbury v. Madison, “it is emphatically the duty of the judicial department to say what the law is,” he made no requirement of consistency. It’s also perfectly legal for a Justice to say that popular public opinion should not influence judicial interpretation, perfectly legal to “cherry-pick” the historical record around the 14th Amendment, and also entirely legal (but wrong) to invoke an 18th Century English misogynist as the arbiter of what was “traditional” at the time the 14th Amendment was ratified. A barrister, judge, and jurist, Sir Matthew Hale claimed that witches must be real because there were laws against them and that it was impossible for a husband to rape his wife.
As many have already observed, the Court is now increasingly seen as political, not just “calling balls and strikes.” Chief Justice John Roberts had likened good judges to good umpires in his Senate confirmation hearing in 2005. Remarkably, the favorability ratings of the Supreme Court, leading one of the three branches of our federal government, is now at 9% strongly approve and at 27% somewhat approve. It’s hard to get a favorable ratings significantly lower than either Donald Trump or Joe Biden, but this Court’s “conservative” majority has somehow managed to do it.
But what’s most interesting is how slippery the notion of a Constitutional right is, and how the Court determines which rights are somehow “fundamental” –– not to be infringed in any way by states –– while other rights are either less so or should not have been granted by the Court’s earlier decisions. The right of a woman to choose to terminate her pregnancy is based on the Roe v. Wade’s majority finding a “right of privacy” implied by various Constitutional guarantees, even though a “right of privacy” is not expressly worded or granted in the Constitution. And yet, the right to carry a loaded weapon in public is not expressly stated in the Constitution, either. Why does it matter whether Constitutional guarantees must be clear, explicit, and based on the meaning of the words at the time they were written?
Here’s why. Those on the political right were deeply upset in the 1950s when the Warren Court ended the historical wrong of “separate but equal” in Brown v. Board of Education, and just as upset in 1962 when the Court ended mandatory school prayer in public schools. To do so, the Court used the First Amendment’s “Establishment Clause,” which prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. (Even the anodyne “non-denominational” prayers we had to recite in grade school in the 1950s were essentially Christian, and we were required to read a psalm as well; most students read Psalm 23, “The Lord is My Shepherd,” as it was familiar, or Psalm 150 as it was the shortest.)
But the school prayer decision troubled many people in the U.S.; five decades later, the case of Engel v. Vitale is still excoriated by a number of televangelists and politicians who rail against the “godless public schools.” Eliminating school-sponsored prayer, they argue, set America on the road to moral and spiritual ruin. Although, it must be said, “thoughts and prayers” have not stopped the epidemic of gun violence in schools and elsewhere, and the “good guys with guns” lacked the moral and spiritual gumption to stop the Uvalde shooter. More people with high velocity weaponry in public hardly seems to be a practical answer, but perhaps the Court really is trying to make sense of the Second Amendment. (Or not!)
The legal argument that the Court should not “find” rights not expressly stated in the Constitution began with President Nixon, who often said that Supreme Court Justices should “strictly construe” the language of the Constitution. This eventually morphed into the notion of “originalism,” the notion that judges and justices should look at the wording of the Constitution in terms of the understanding of those words at the time of the founding, or the time of any Amendments.
But the “conservative” majority in Dobbs does not actually adhere to original intent. By the time the U.S. Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South. Blacks outnumbered whites in large areas, and the state militias were used to prevent and put down slave uprisings. Slavery is only sustainable in a police state, and the southern state militias were critical to maintaining that state.
At for originalism and the origin of the Second Amendment, southern state representatives to the Constitutional Convention were concerned that Article 1, Section 8 of the newly-proposed Constitution gave the federal government the power to raise and supervise a militia; they worried that power could justify a federal militia to subsume their state militias and transform them from slavery-enforcing institutions into something that could one day free the slaves.
Among others at the Constitutional Convention, the famous patriot and Virginian Patrick Henry (“Give me liberty or give me death!”) was troubled. He knew the majority attitude in the North opposed slavery, and he worried they’d use the Constitution to free the South’s slaves (a process then called “manumission”). At the origin of the Second Amendment, he said, “[T]hey will search that paper [the Constitution], and see if they have power of manumission.” “And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power? This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.”
Accordingly, James Madison, who had already begun to prepare proposed amendments to the U.S. Constitution, changed his first draft of one that addressed the militia issue to make sure it was unambiguous that the southern states could maintain their slave patrol militias.
This original intention ––making sure to keep slaves in their assigned place––does not include within it an unambiguous right for individuals to publicly carry “arms.” Arms, by the way, have evolved to mechanized weapons of public massacre that did not exist and were probably undreamed of in the Founders’ day. Perhaps if we “strictly construe” original intent, only muskets, broadswords, flintlocks, cannons, howitzers and the like are protected by the Second Amendment.
Remarkably, “conservative” legal thought is now in a place where it is somehow wrong for one of the 50 states to deny any young man his “right” to arm himself with a weapon that can cause death, havoc, and grief among the living, literally shredding the bodies of fourth graders, and wrong to allow a woman –– most often for compelling personal and familial reasons –– the choice to end the life of a non-viable fetus in the first 15 weeks of her pregnancy without state interference.
Many informed and concerned voices have concluded that the Bruen decision will increase gun violence and death, and that the Dobbs decision will increase maternal mortality. It’s increasingly hard to see how the majority’s “originalism” is a victory for those who favor family values, human life, and a safer, saner America.