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The Supreme Court fires broadside against the Constitution

In its decisions to strike down the constitutional right to abortion and New York City’s concealed firearms ban, the Supreme Court has let loose a 21st century volley amid an ongoing political, cultural and social uncivil war not seen since the firing on Fort Sumter in 1861. 

These decisions have now created a “doctrine of selective inference” in the court’s interpretation of the law. This raised a judicial double standard that, ironically, will make the underlying reasoning of Dred Scott (1857) and Plessey v. Ferguson (1896) relevant again. And one consequence of returning the legality of abortion to the states is that it may well metastasize into a condition of permanent legal strife.

Proponents and opponents of these decisions should be very worried given the divisive, disruptive and contradictory consequences that will arise from these cases. About abortion and concealed carry, nowhere in the Constitution are abortion or self-defense as a reason for carrying a concealed weapon explicitly stated or enumerated. 

Roe v. Wade inferred from the 14th Amendment that abortion was constitutional. By torturing and distorting the Second Amendment beyond the court’s 2008 Heller ruling , it inferred a constitutional right for concealed carry.

The court struck down Roe, asserting there was no inferred right in the Constitution to abortion. But stunningly, the court contradictorily struck down the New York law interpreting the 2nd Amendment as making concealed carry legal. Hence, a doctrine of selective inference in which ideology and politics and not the law seems to take precedence.

Consider one consequence. Suppose a woman living in a state that bans abortion travels to a state where the procedure can be legally performed. According to some state laws, she could be arrested upon returning for violating the relevant statute banning abortion. Or could an arrest warrant be honored if she did not return? How would the court rule in such a case?

This contradiction makes Dred Scott relevant. That case concluded that a slave who was taken or escaped to a free state was still the property of his or her owner and if apprehended must be returned. The same flawed logic seems to apply in 2022.

Similarly, what are the limits of concealed carry under this ruling? Can a firearm be carried in a subway, an airplane, the White House or a sporting event all based on the inherent right of self-defense? These decisions have opened a Pandora’s box of questions that will overload the justice system and inflame an already incendiary situation.

That means Plessey is also back. That decision held that segregation in education was constitutional provided it was “separate but equal.” The court’s decisions now have introduced a Plessey “double standard” in interpretation. Decisions seem to conform to the justices’ preconceived notions rather than the law.

One consequence is that Article III and the court have become politicized and, to many, delegitimatized. The precedent was the 2000 presidential election and Gore v. Bush. Five Republican-appointed justices effectively made George W. Bush the nation’s 43rd president by 532 Florida votes. Now, public consensus is that the Republican appointed justices, five of whom strongly support pro-life and pro-gun views, have politicized the court at least for their lifetimes.

In fairness, on these politically charged issues, if Democratic appointees on the court held the majority, Roe and New York would have almost certainly been sustained on reverse ideological grounds.

Arguably, America has not been so politically divided, volatile and polarized since 1861. Given the absence of civility and the increasing recourse to violence in America, the abortion and concealed weapons decisions will exacerbate these dire conditions, possibly making them irreversible. Worse, a 21st century broadside has been fired against the Constitution.

Where this is headed is anyone’s guess. But you can bet both Russian President Vladimir Putin and China’s Xi Jinping are sitting back and watching as America implodes.

Harlan Ullman is senior adviser at the Atlantic Council and the prime author of “shock and awe.” His latest  book is “The Fifth Horseman and the New MAD: How Massive Attacks of Disruption Became the Looming Existential Danger to a Divided Nation and the World at Large.” Follow him on Twitter @harlankullman.

Tags Constitution Dobbs v. Jackson Women's Health Organization Dred Scott v. Sandford new york gun law Roe v. Wade Supreme Court Supreme Court of the United States

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