If, as expected, the Republican Supreme Court this month votes to overturn the Roe v. Wade abortion protections and further weakens the ability of states and localities to impose gun restrictions, trace it back to the late 1970s.
That marked the emergence of a new Republican coalition, with evangelical Christians and zealous pro-gun forces, led by the National Rifle Association. Both provided foot soldiers, and the NRA provided lots of campaign money.
It began a seminal change. The 1972 Republican platform cited gun control, and the 1976 GOP platform acknowledged there were divisions within the party over abortion — but in short order, there were few Republican office holders who weren’t anti-abortion and pro-guns.
This high court, with rare exceptions, can be counted on to side with Republican interests, as we’ve seen on voting rights, campaign finance laws, and congressional gerrymandering, as well as abortion and guns. The Republican justices insist this has nothing to do with politics; they say it’s their duty to follow the “texts” or the “original intent” of the Founders.
“The originalists claim that judges can study history and come up with a determinate result to contemporary legal questions,” writes court critic and legal scholar Garrett Epps. “They are right as long as they, and the conservative legal movement, control what evidence the courts may consider.”
The leaked abortion draft opinion of Justice Samuel Alito is well known now. There likely won’t be more than small changes to the final opinion.
As an aside, I am not taken with the complaint from Sen. Susan Collins (R-Maine) that Justice Brett Kavanaugh misled her in saying he would respect the precedents on the abortion issue. Most expected he would vote against Roe.
Alito contends there never was a constitutional basis for abortion rights. He casts his decision as a matter of principle and says it will not affect other rights.
Yet the 1973 Roe decision — supported by five justices appointed by Republican presidents — flowed from the privacy right decided eight years earlier, which overturned a state law banning contraceptives. If it’s about principle or originalism, wouldn’t Justice Alito also want to revisit that issue — and the 2015 decision granting same-sex marriage constitutional protection? In dissent then, he defended bans on same-sex marriage as encouraging procreation.
On abortion and other issues, these Republican justices extol the virtues of leaving matters to the states. With them, federalism flourishes — except when it doesn’t, like with guns.
For more than 200 years, the courts held the Second Amendment — “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” — applied to militias, recognizing the explanatory clause, the only one of the Bill of Rights with such a clause. Then the court’s Republicans, in the 2008 Heller case, reversed the previous decisions and declared the Second Amendment also applied to an individual right, striking down a Washington, D.C, gun control measure.
Justice Scalia wrote that opinion, saying it was based on a reading of the text and original meaning of the Founders. Yet most scholarly studies of these deliberations — read Michael Waldman’s “The Founders’ Second Amendment” — find that most, not all, references during the Constitutional Convention and congressional enactment of the first ten amendments associated the right to bear arms with the militia.
The political mastermind was James Madison; there were political trade-offs.
In those times, gun restrictions were commonplace. Boston made it illegal to keep a loaded gun in a home. Years later, as it was opening, the board at the University of Virginia barred students from possessing or using any firearms. Two of the board members were Madison and Thomas Jefferson.
The court soon is expected to hand down a decision on a New York law requiring that anyone carrying a concealed gun in public must demonstrate “proper cause.” There is no restriction on gun ownership or carrying a gun in public if there’s a necessity. Yet during the oral arguments most of the court’s Republicans seemed skeptical of the law.
If the court overturns the law, it would significantly broaden the Heller decision, making it more difficult for states or localities to enact sensible gun measures.
“As we’re still burying victims of mass shootings,” Waldman told me, “the court will likely make it much harder to stop the spread of dangerous weapons.”
The justices protest charges they are political; Amy Coney Barret is indignant that she and her colleagues are considered “political hacks,” and Chief Justice John Roberts says the judges are like a baseball umpire calling balls and strikes as they see them.
Okay, let’s say “political operatives” instead of “hacks,” and acknowledge the strike zone is almost entirely on the left.
Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for The Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.