In two rulings handed down this week, the United States Supreme Court released what feels like a once-in-a-generation earthquake in the nation’s treatment of basic rights. The tossing out of may-issue carry licensing schemes by NYSRPA v. Bruen and the overturning of Roe v. Wade with Dobbs v. Jackson will not be accepted as settled law by opponents of either, and both might finally lead Democrats to discover that being the party in power provides them with the ability to set the rules of debate and thereby ultimately to send legislation to the president for signature, but for the moment, carrying a pistol legally will potentially be easier throughout the entire country, while getting an abortion will depend on one’s state of residence or one’s ability to travel—presuming that the anti-abortion states do not find a way to ban crossing borders for the purpose of terminating a pregnancy.
Opinions differ on whether that would be constitutionally permissible, but there was a time when Roe and the subsequent Casey decisions seemed to be insurmountable obstacles to turning women into property as well.
Democrats are out in such force as they feel is appropriate to express their outrage against both decisions, and in regard to Dobbs, I have to wonder why they did not use the nearly fifty years since Roe to codify abortion rights in federal law. Anti-abortion advocates are correct when they observe that the word, abortion, occurs nowhere in the Constitution, and though the 1973 decisions was correct in my view, its grounding in the Fourteenth Amendment was never going to satisfy the forced birth crowd.
But consider the language of the Second Amendment. We are guaranteed the right to keep and bear “arms.” As has been repeatedly demonstrated throughout the history of the gun control movement—starting in modern terms perhaps with the passage of the Sullivan Act in New York in 1911—language that is not specific can be read in a variety of ways, and those readings might exclude things that many of us value. Is abortion mentioned in the Constitution? No.
But neither is an AR-15, and insisting that such rifles are in the category of arms will not impress those who hold to the notion of said text as a living document, the notion that as times change, the way that we read a text must change with them, saving us from the need of editing the source. No, the framers did not imagine semiautomatic firearms—and I say that with good knowledge of the experiments that were being conducted in the period. To the same degree, they also never conceived of electronic communications, and yet inventions like the Internet have made freedoms of expression so much easier and of far greater reach. I am glad that the would-be censors have so far been stymied by the First Amendment, and I apply that joy to what the Second Amendment is now restraining.
And thus, I am suspicious of the mode of interpretation that would have us toss out hard protections for the sake of convenience in the face of change. I am also skeptical of those who claim to be originalists, the interpretive school that seeks to lock us all into only what the authors of a given text had in mind at the date of publication. Discussions of what any author’s intent might have been always invite endless quibbles over etymology, history, individual psychology, and—shudder—efforts to apply past circumstances to today’s problems. Call me a New Critic, but I am much more interested in what the text actually says and what principles can be extracted from it on its own. Yes, we should pay attention to what came before and what was going on around the writing, and those principles are indeed their own kind of intent, but please find these things in the words that we have, not in the ones that we might wish for.
These two contrary stances being taken, however, I wish to offer my own thinking on how to interpret a text in a way that takes from both. The law says what it says, and if we are to hold to the principle that the rule of law is better than the rule of whims, we must take what we are given until we can get something new enacted. But we should interpret said law in the broadest possible way in favor of individual rights. Do I care that the framers did not specifically protect AR-15s or abortion? Not really. They protected arms, the right to be secure in one’s person from searches and seizures, and a general body of unenumerated rights as belonging to each of us. They carried into U.S. law the common law principles of self-defense and privacy. All of that adds up to the rights to decide who may or may not use one’s body over what duration and to defend one’s autonomy with whatever personal weapons fit within one’s budget and inclinations. This same principle should be applied to communications by cellphone, contents of a vehicle, and desires to ingest substances in the confines of one’s own home. If there is a way to read a legal text in a manner that favors the individual with regard to that person’s own life, read it that way.
Both it is all too convenient for people who wish to treat rights as partisan tokens handed out to the party’s favored groups to reject my method of interpretation. The question posed to all of us with this week’s Supreme Court rulings is whether we will continue to accept rights as political footballs or we will insist that there are some areas into which no level of government should have the power to intrude.
Replace "law" with "rights"
https://www.youtube.com/watch?v=PDBiLT3LASk
I agree, the reading of rights should always be with an expansive slant, because that's the way they were written, but more importantly, that's the proper way to view and respect human rights.
The only real solution at this point is likely to work towards a Federal constitutional amendment protecting abortion at some level. It likely wouldn't be possible to do so at Roe V. Wade levels, but it would at least make the more extreme states less "zero-tolerance".
But keep something in mind (and I direct this towards viewers who might be on a more traditionally Liberal frame of mind), the disdain shown for the 2nd Amendment, a right *already* enshrined in the Constitution by the framers, yet nibbled and chipped away at over the course of the years, is a difficult thing to restore to its rightful place. And don't think the same tactics you may have refined or supported to damage it won't be used against an abortion amendment.
Yes, if you want abortion rights via-constitutional amendment respected, then it's in your interest to ensure that the 2nd is also respected. And all the others, for that matter.
Or you'll very quickly learn how warped the concept of "common sense restrictions" can be.
Welcome to the party, pal(s).