Last week's momentous Supreme Court decisions on abortion and guns reveal conservative justices are hellbent on returning to a bygone past.
With these new decisions the strongly conservative Court majority, in effect, insisted that the text of the U.S. Constitution and the reactionary justices’ divining of the Founding Fathers’ original constitutional intent is far more important than the clear and present dangers this obsolete interpretive model poses to 21st-century Americans.
The Court voted 6-3 to uphold a Mississippi ban on abortions after six weeks gestation (before most women even know they’re pregnant), and then, 5-4 (with Chief Justice John Roberts voting with the Court’s liberal wing), to overturn its landmark 1973 Roe v Wade decision legalizing abortion nationwide. In another 6-3 vote, the Court also rejected a 108-year-old-old New York law with strict requirements for carrying concealed firearms for self-defense in public.
Shouldn’t the Supreme Court, in its final analysis of cases, emphasize the clear risk of present harm over blurry constitutional textual purity in their decisions, while thoughtfully weighing each? Conservative justices appear to be giving unhealthy credence to the former over the latter, while the text is maddeningly murky but the harms are inevitable.
Prioritizing the Constitution’s moot text over real-world hazards mirrors how many conservatives, mostly Christians—the five most conservative justices are devout Christians (Catholics)—bow low to the supposed unerring divinity of another even older text, the Bible, instead of applying secular reason in the present.
Religious piety on the Supreme Court
In a very real way, the instincts of religious absolutism drive this Court and lead it to unconditionally elevate to the summit of importance all historical texts believed sanctified, as many if not most conservatives believe both the Constitution and Bible are.
This uber-conservative tendency of the conservative Court is eroding public confidence in its objectivity, a recent Associated Press article opines. The piece suggests that the two momentous Court decisions last week “have done nothing to resolve” the deep schism in public attitudes about abortion and firearms rights, thus,
“… firing up debate about whether the court’s conservative justices are being faithful and consistent to history and the Constitution—or citing them to justify political preferences.”
The conservative justices manifestly offer little allowance for the fact that societies, as people, evolve organically, sometimes dramatically, as has happened recently in America. In the case of common-sense gun restrictions and legal abortion, a large majority of Americans vehemently disagrees with a conservative interpretation of the Constitution’s text as it may pertain to these issues.
Most Americans disagree with new Supreme Court edicts
Polls show a majority of Americans support more gun restrictions and fewer guardrails on abortion—the opposite of what the high Court’s rulings mandated last week.
Justice Samuel Alito, who wrote the 90-page majority opinion stemming from Dobbs v. Jackson Women’s Health Organization, the Mississippi case that led to last week’s Court decision on abortion rights, argued that abortion is not a fundamental right “objectively, deeply rooted in [the nation’s] history and traditions.”
With the quote, Alito was referring to a 1997 Court decision allowing states to prohibit assisted-suicide—Washington v. Glucksberg. He argued that during 700 years of Anglo-American common law societies “punished or otherwise disapproved of assisting suicide.” In other words, he’s saying, since legal authorities for centuries have demonized assisted suicide, it is appropriate still to continue prohibiting it despite the tremendous suffering it might cause to, for instance, terminally ill persons in intractable pain who rationally want to end their ordeal but don’t have the knowledge or skill to do it.
Should SCOTUS rulings factor in evolving societal mores?
Alito’s view dismisses the political importance of changing public attitudes toward assisted suicide, which has since been legalized in a number of states under reasonable restrictions, as toward abortion was under Roe v Wade, the 1973 Court case that legalized abortion.
This is the intrinsic problem of prioritizing historical text over real-world suffering: times and attitudes change. Conservatives believe that clinging desperately to sometimes-arbitrary interpretations of old texts will keep us safe and secure, rather than evolving. But this will only move us backward, not forward.
In its first jarring decision last week—New York State Rifle & Pistol Association v Superintendent of New York State Police—the Court overturned a century-old New York concealed-carry gun law. Apparently, it didn’t matter to the court that this law was “deeply rooted in the history and tradition” of New York state—as it didn’t that Roe v Wade was an important Supreme Court stare decisis precedent (rulings that judges weigh heavily in deciding future related case), as Justice Brett Kavanaugh and Neil Gorsuch both disingenuously confirmed at their Senate confirmation hearings.
Did Kavanaugh and Gorsuch lie in Senate hearings?
U.S. Republican Sens. Susan Collins of Maine and Joe Manchin of West Virginia accused the two justices of misrepresenting their position on Roe v Wade during their hearings, leading senators to believe, wrongly, that they would respect multiple precedent Court decisions related to the 1973 landmark abortion decision and let it stand.
“I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans,” Manchin said.
The New York Times wrote that last week’s Court firearms decision will result in a frenzy as various states rush to accommodate the new ruling:
“The Supreme Court ruled on Thursday that Americans have a broad right to arm themselves in public, striking down a New York law that placed strict limits on carrying guns outside the home and setting off a scramble in other states that have similar restrictions.”
Justice Clarence Thomas, who wrote the majority opinion, summarized that the Second Amendment protects “an individual’s right to carry a handgun for self-defense outside the home.”
Is the 2nd Amendment obsolete?
This is a classic example of how cleaving to an old text misses the point centuries in the future. The Second Amendment in its entirety says:
“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.”
It says nothing about carrying guns outside the home, only implying that citizens at that time had a right to “keep” arms (presumably in their homes) and then “bear” them if the security of the state were threatened. But the Amendment’s obsolescence is obvious in its opening—and controlling—clause. Because the U.S. now has the National Guard, “a well-regulated militia” as understood in the 18th century is neither needed nor exists in the 21st century.
Of course, many Americans do have a “deeply rooted history and tradition” of finding comfort in their personal firearms. But if we interpret the Amendment’s text purely, the right it bestows has been obsolete since at least the Militia Act of 1903 created the elements of the modern National Guard, allowing for more federal support and control.
In the modern Guard, firearms are provided to recruits but kept in government armories. There is no longer a need for Guardsmen to “keep” arms, only to “bear” them when officially needed and provided by Guard authorities.
But, somehow, the Second Amendment has come to be understood by many Americans as carte blanch constitutional authorization for citizens to generally own and bear firearms as they wish.
So adhering to this phrase—“the right of the people to keep and bear Arms, shall not be infringed”—is now nonsensical. It was created for a far different purpose in a far different time, and continuing to insist that time stands still has proven incredibly lethal.
Guns make U.S. an exceptionally dangerous place
According to the World Population Review, the net result is that America is the most dangerous country to live in among all industrialized nations, with tragically routine mass shootings by people keeping and bearing arms for generally no other reason than they feel like it. But the arms today are far, far deadlier than those of 18th-century American colonists, who were lucky to get one shot off every minute. A semi-automatic AR-15-style rifle—the weapon of choice for recent U.S. mass shooters—can spray 80-120 deadly rounds a minute.
The U.S. is ranked just below Saudi Arabia and ahead of South Africa in dangerousness for citizens, with other industrialized nations far below at the end of the list. Guns and endemic violence are major causes of the safety risks faced by Americans.
Yet, an obsolete phrase in a more than 200-year-old document is used to justify doing practically nothing to correct this tragedy. The gun-control bill passed by Congress and signed by President Biden this week contains mostly cosmetic improvements in existing laws. The real work remains to be done.
Is ‘right to keep and bear arms’ absolute?
In the New York Rifle & Pistol case, the majority opinion holds that no one should have to demonstrate a special need to obtain a concealed-weapon permit, because the Second Amendment contains the phrase “the right of the people to keep and bear Arms, shall not be infringed.” As always, the opening controlling clause, which now, in effect, nullifies the final clause, was ignored by the Court’s decision. The Court ruled:
“Since Heller and McDonald, the Courts of Appeals have developed a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history.”
What they mean is a test rooted in only one clause of the Second Amendment—the clause dependent on the preceding one, which is no longer valid. No matter how many people get killed as a result. Didn’t these conservative jurists ever have to diagram English sentences in the parochial, not public, schools they attended? That would have revealed the flaw in the Court’s reasoning in the New York Rifle and Pistol case.
It’s the same with the abortion law. The Supreme Court justices in Dobbs concluded that it’s more important to interpret arcane constitutional language about abortion rights by originalist precepts than to decide cases with a more primary view of how harm might be best reduced or eliminated.
Abortion not ‘explicitly mentioned’ in Constitution
In summary, the Court’s majority decision ruled that because “abortion” is not explicitly mentioned in the Constitution as a right, it is a state, not a federal issue,
“The Constitution does not confer a right to abortion; Roe and Casey [a subsequent precedent upholding Roe] are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
Conservatives on the court contend that Roe was originally wrongly decided and that the subsequent Casey ruling upholding it did not adequately consider whether the legal argument for Roe was valid enough create a second precedent. The Court also decided that the right to obtain an abortion is not “rooted in the nation’s history and tradition” and is not a “component of ordered liberty” (curious, considering the disordered chaos this ruling creates). The decision notes that abortion was for many years generally illegal in the U.S.
The Fourteenth Amendment, ratified in 1868 and in recent years used as an argument for abortion rights, states that no state shall “deprive any person of life, liberty or property without due process of law.” In 1868, American physicians had already been pushing for more than a decade to criminalize abortion to improve the professionalism of medicine, according to the Poynter media organization. But it was not because they loathed abortion, although Alito contends that “at the time of the adoption of the Fourteenth Amendment, over three-quarters of the States had adopted statutes criminalizing abortion (usually at all stages of pregnancy).”
But, as Peter Hoffer, professor of history at the University of Georgia, points out in the Poynter article, the targets of the physicians’ abortion criminalization initiative leading up to the passage of the Fourteenth Amendment were “midwives and others who were not licensed,” because it was “necessary to protect the health of women, as abortion at that time was not a particularly safe procedure.” It did not mean that the nation was traditionally necessarily against abortion. Even the Southern Baptist Convention, not a hotbed of liberality, supported Roe in 1973.
So “deeply rooted in history and tradition” can prove to be a somewhat murky yardstick for Supreme Court decisions.
Supreme Court’s junking of Roe throws U.S. women into crisis
With the overturning of Roe last week, American women have been thrown into a profound crisis, whether currently seeking abortions or not. The Guttmacher Institute projects that abortion bans are now likely or certain in 26 states, some even in the case of rape or incest.
The delineation of federal vs. state rights enshrined in the Constitution is a problem that won’t go away. It assumes that states, left to their own devices without federal interference or coercion, will do the right thing. As if.
Like the Southern states did regarding slavery, which ended up causing the disastrous American Civil War in which more than 600,000 died? Or like now, with new, inevitably draconian state abortion laws underwritten by the U.S. Supreme Court, which will again send unwilling mothers to unlicensed back-alley abortionists if they can’t afford to travel to other states (which some states also want to outlaw) where the procedure may still be legal and safe. Some want to force unwilling pregnant women to carry their fetuses to term, even in cases of rape, and raise or give away the born children that result.
Pro-lifers claim that embryos are divinely sanctified and due the full legal—and divine—rights of born human beings. But sanctification is a religious concept not verified by reality, whereas legally protected embryos under legal Roe were real but non-viable, meaning they could not survive on their own outside the womb.
So, which path leads to the greater good for most people: emphasis on purity of fuzzy text interpretations that cleave toward dreamy, not objective conservative instincts or on the practical reduction of real-life harm to Americans?
What is ‘deeply rooted in history and tradition’?
Clarence Thomas, arguably the Court’s staunchest conservative, said after the overturning of Roe that justices should also seriously reconsider rulings upholding other rights, such as for same-sex marriage and the use of contraceptives.
Curiously, he left out another longstanding American prejudice “deeply rooted in U.S. history and tradition,” and law (see Loving v Virginia): interracial marriage between blacks and whites. Thomas, who is black, is married to a white woman.
Clearly, with conservatives on this Court, not all histories and traditions are afforded the same respect.
If the reactionary justices on the Trump Court continue in their wrecking-ball fashion to trash settled legal precedent (their phrase) and practicality, there’s no earthly reason why they someday might decide, for example, that sperm is a protected human “being” under the Constitution and God’s so-called natural law that glorifies men.
After all, a single sperm has far more personal agency and self-motivation than any fetus ever conceived. Who knows, maybe the “soul” actually resides in the heads of sperm and is transferred to the zygote at conception. Prove me wrong.
So, all things considered, there seems scant hope for reason under this Supreme Court unless the First and Second amendments to the Constitution are completely transformed to prioritize safety of the citizenry over moot interpretations of ancient, time-muddied texts.
Otherwise, the tsunami of misery will continue and inevitably worsen for vulnerable women denied a long-enjoyed legal right to terminate unwanted pregnancies and control their own bodies and destinies, and for innocent Americans, young and old, unable to dodge bullets raining like evil hail on American cities and towns.
And this purposeful atrocity will also inflict untold suffering on society at large and, further, blaspheme the reason-based democratic republic the Founding Fathers envisioned.