More Guns, Less Freedom: The Supreme Court Wants to Take America Back to the 18th Century

Over the course of two days this week, the Supreme Court of the United States redefined American society, and people’s power to shape it, by looking at what the Constitution says or doesn’t say about two freedoms: that of women to decide the course of their own lives, and that of those who wish take up arms in self-defense. They did it because they could. These freedoms, like others enshrined in law, have long carried certain limits and responsibilities. Yet for the high court’s ultraconservative majority, only one must yield to majority rule — the will of voters and elected representatives in the various states — and the other must be guarded zealously from this tyranny.

In overruling Roe v. Wade, and with it nearly 50 years of American law, and expanding the reach of the Second Amendment right to keep and bear arms, which is a jurisprudential innovation of more recent vintage, the Supreme Court wants the public to accept that history rules the present — and that our founding charter, which is hailed as a beacon of liberty pointing to a more perfect union, reflects rules set in stone that no judge should dare disturb. “Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves,” wrote Justice Samuel Alito, concurring in New York State Rifle & Pistol Association v. Bruen, which expanded the right to own a firearm for self-defense purposes beyond the home. “And today, no less than in 1791, the Second Amendment guarantees their right to do so.”

Bruen was not authored by Alito, but by Justice Clarence Thomas, who used the ruling as a victory lap after many years of loud protestations about the Supreme Court’s refusal to clarify the scope of the Second Amendment. Thanks to this refusal, lower courts far and wide have upheld an array of assault weapon bans and other legislative enactments in response to the scourge of gun violence. But to Thomas, a self-proclaimed originalist, these electoral choices, and judges’ acceptance of them, were a bridge too far. “The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense,” he wrote. “It is this balance — struck by the traditions of the American people — that demands our unqualified deference.” In other words, the democratic process must be very wary before responding to atrocities like those we saw in Buffalo or Uvalde, Texas, lest we offend the founding generation.

Yet if the Founding gave Americans this inalienable right to arm themselves against enemies foreign and domestic, Alito reminded us a day later, it did not do so for the right to end a pregnancy, which enlightened men — both at the dawn of the republic and in 1868, when a Civil War gave way to the 14th Amendment’s guarantees of equality, liberty, and due process for all — never explicitly wrote into the constitutional text. These men’s choice to leave out the word abortion, in Alito’s hypertextualist reading, means conclusively that no such right to it has ever existed, and who is he to contradict the men who wouldn’t guarantee women the right to vote for at least another half a century? “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text,” Alito wrote in Dobbs v. Jackson Women’s Health Organization, hewing closely to his leaked draft that made waves last month.

That latter part of Alito’s formulation allows for the protection of certain “implicit,” unenumerated rights. And the Supreme Court has long recognized liberties like choosing whom to marry or whether to use contraception that, even if not written in the Constitution, are so rooted in our history and traditions that the government must meet an impossibly high standard to interfere with them. In Dobbs, Alito reminds us again and again that those atextual freedoms are safe and sound from future attacks — except for the freedom to terminate an unwanted pregnancy. To Alito and Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, that deeply personal choice, which can make or break a person’s future, is simply different, and bannable, because the decision involves an “unborn human being” — and so the morality of making a life choice that affects a “potential life” is conceptually distinct from the right to sexual intimacy or to make decisions about our children’s upbringing.

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