Roe v. Wade and gun control: contradictory or coherent?


These are the most polarizing issues in American life: abortion and guns. And two landmark Supreme Court rulings in two days did anything but resolve them, sparking a debate over the court’s conservative justices’ loyalty and consistency with history and the Constitution — or citing them to justify policy preferences.

For some critics, the decisions represent an obvious and deeply damaging contradiction. How can the court justify restricting states’ ability to regulate firearms while expanding states’ right to regulate abortion?

“The hypocrisy rages on, but the evil is endless,” House Speaker Nancy Pelosi said Friday after the court released its abortion ruling.

For supporters, the court’s conservatives remain true to the country’s founding principles and undo the mistakes of the past.

The court corrected a historic error by striking down an abortion right that has existed for nearly 50 years, former Vice President Mike Pence said on Friday. On Twitter, he said the decision returned Americans the power to « govern themselves at the state level in a manner consistent with their values ​​and aspirations. »

Opponents of Roe v. Wade, the controversial 1973 decision that upheld abortion rights, say the Supreme Court at the time did exactly what some accuse the majority justices of doing now, adapting and twisting the legal arguments for adapt to political positions.

Members of the court’s current conservative majority, setting out their thinking in this week’s rulings, have been fairly consistent, sticking to the words of the country’s founders and historical precedents that go back even further, these say. supporters.

In both decisions, the majority argues that if a right is enshrined in the United States Constitution, the bar for any government regulation of that right is extremely high. But if a right is not explicit, state and federal governments have greater latitude to impose regulations.

For those who study the court, however, the reality is more complicated.

A number agree that, for all the controversy in the rulings, the majority justices at least followed consistent legal theory in making the abortion and firearms rulings.

« I understand how hypocritical this may sound, but from the perspective of the conservative majority on the court, it’s a consistent approach either way, » said University of Texas law professor Richard Albert. Austin. « I’m not saying it’s okay, by the way, but from their point of view, it’s completely consistent and consistent. »

Consistency, however, cannot hide the fact that there has been a seismic shift on the ground since President Donald Trump appointed three Tories. And that is likely to further cloud public perceptions of an institution that prefers to see itself as above politics, court watchers say.

Both decisions “come from the same court whose legitimacy is in free fall,” said Laurence Tribe, a prominent constitutional law scholar and professor emeritus at Harvard Law School.

The court’s majority rulings on gun rights and the decision a day later on abortion both rest on a philosophy of constitutional interpretation called « originalism. » To assess the rights that the Constitution confers, the originalists focus on what the texts meant when they were written.

The opinions of originalists are often laden with detailed studies of history, as are these two decisions.

Much of Justice Clarence Thomas’ opinion on gun rights is devoted to history and what it says about the intentions of the Founders when they crafted the Second Amendment and when lawmakers crafted the 14th Amendment on due process in the 1860s. Thomas touched on a long list of historical figures, including England’s King Henry VIII, who, according to the decision, was concerned that the advent of handguns would threaten the mastery of the longbow of his subjects.

The abortion ruling written by Judge Samuel Alito also delves deep into the past, concluding that there was nothing in the historical record supporting a constitutional right to obtain an abortion.

« Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every state, » Alito wrote.

The two rulings this week are more legally consistent than critics suggest, said Jonathan Entin, a law professor emeritus at Case Western Reserve University in Cleveland.

« We can debate the meaning of the Second Amendment, but the Second Amendment explicitly talks about the right to own and bear arms, while the right to access abortion is not explicitly in the Constitution, » he said. -he declares. « If that’s where you’re going to go, then maybe these decisions aren’t so tense after all. »

Not all observers agree.

« I think there’s a double standard here, » Pepperdine University law professor Barry McDonald said, reviewing the judges’ arguments that both rulings are based on a strict reading of the law. and history. That logic is flimsy, he said, given the conclusion of many legal historians that the right to bear arms in the Bill of Rights is, in fact, much narrower than most scholars claim. courts.

Most ordinary Americans, however, will be unfamiliar with such complex legal theory. Instead, many will assess the court’s actions based on their perception of the judges’ motives and the personal implications of the decisions, experts said.

Many are likely to view the rulings as a direct result of Trump’s appointments and the judges’ determination to carry out his agenda, making the court « more an institution of politics than of law, » McDonald said.

Tribe said the majority of the court embraced an imaginary past and that its assertions that merely uphold the law are false. The majority can say they were legally consistent. But taken together, he said, the gun and abortion rulings create a whiplash effect from a court that purports to protect individual rights and then effectively limited scrutiny of many. Americans on their own bodies.

« I think the decisions are going in radically different directions, » Tribe said, « but the one thing they have in common is that they’re decided by a new, emboldened majority that knows no bounds to its own power and is perfectly willing to throw away precedent in the name of a version of originalism that really doesn’t hold water. »


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