Following the Supreme Court’s Dobbs ruling, Democratic pundits and politicians have been calling for the codifying of abortion rights in federal law as a legislative means of reversing the decision that overturned Roe v. Wade’s nearly fifty years of guarantee of the right to an abortion. Over that period, Republicans have complained endlessly about supposedly liberal judges who legislate from the bench and have warned in tones that alternate between lamentations and glee that the country is in a culture war.
A less martial, but equally violent way of putting things would be to say that we are operating in the marketplace of ideas, though it seems that the right wing is in fact suspicious of free markets. Perhaps this is because, at least in the case of abortion, they are losing the war, given how the right to terminate a pregnancy has consistently found majority support for decades—slim in some years, greater in others, but nearly always above fifty percent.
The fact about wars of any type is that they are disruptive. This may be a feature or a bug, depending on one’s point of view, but they unsettle order, leaving combatants and non-combatants alike having to improvise and adapt. A tweet that I saw recently remarked upon the squabbling over gender identity by wondering if people had not heard of the concept before, for example, and after having searched my memory, I realized that such things were not discussed in the fundamentalist Christian environment of my childhood and only crossed my awareness now and then in the years since I became an adult. Attribute that to privilege, if necessary, or chalk it up as the reality that the topic has only taken a major position in public consciousness in the last say ten years, but the reality is that working out the implications and the new codes of etiquette always takes time, even for people of good will.
What I am saying here is that progress is not a binary of evil before and righteousness after. This being the case gets me to the point of today’s essay. A court ruling is but one battle in the culture war. Laws can be changed; justices will be replaced, and the Constitution can even be amended. For too long, we on the left have relied on the court to take care of difficult matters such as abortion, prayer in schools, same-sex marriage, or the Pledge of Allegiance, assuming the justices to be on the good side of individual freedom and the rights of minorities of all kinds.
The right wing calls this legislating from the bench, but that is both precisely wrong and an illustration of the problem here. It is wrong because what the courts do in the cases I have in mind is overturn a bad law—be it as examples a definition of marriage as an institution of one man and one woman or a restriction on the issuance of carry licenses only to those with the wealth and political connections to afford them—leaving the writing of new laws up to the legislatures. Getting shot of bad legal code is a meritorious act, but there is so much more that needs to be done afterward. The problem is that lawmakers so often either refuse to comply with a court’s ruling—refuse in ways not provided to them by the relevant constitution—or choose to do nothing at all, treating the particular decision as if it is a law out of laziness or a recognition that finding enough votes is a hopeless quest.
Democrats are guilty of this—let us note that Joe Biden’s political career has coincided with the duration of Roe and may not outlive it by much. Roe and Casey were treated as sufficient protection for abortion rights, as if no court would ever alter them. Lawrence v. Texas and Obergefell, at least until the political theater of the Respect for Marriage Act, have largely been taken as the last word, despite how recent and controversial they are. The same is true for rulings on equal access to schools, on the separation of religion and state, and on and on. Democrats will tweak the laws here and there and will raise vast sums of money on the threat of a Republican Party that wishes to toss out progress, but will get little done to defend good rulings with new law. All of this is reminiscent of supporters of Prohibition who sang, to the tune of the “Battle Hymn of the Republic,” “It’s in the Constitution, and it’s there, there, there to stay.”
Except that no, it is not. Republicans have something of the same strategic failing in that they have done nothing to build on the Heller and McDonald rulings that clarified the meaning of the Second Amendment as protecting an individual right. It took the recent Bruen decision to explain to the states that carry is protected as well as ownership—though the federal government manages to move states into desired action with road funding from Congress, for example—and we still do not have national carry license reciprocity. Suppressors are still heavily regulated by the National Firearms Act. And once again, on and on.
Some of this is inevitable. The Constitution is better than many lesser laws in that it protects the rights of the unpopular—of people who are unable to win majorities in legislatures. Or it is supposed to do that. But treating good rulings as if they are permanent is a sure way to lose exercise of the rights that they protect whenever there is strong opposition. And lest any party feel that they are safe, recall the role reversals that I have discussed above.
What is instead required is that we, the voters, choose better legislators who write good laws and better executives who will nominate better judges and who will promote better policy. Hoping for the courts to correct Congress and Chief Executives is a choice to leave the packing of enough parachutes up to the ground crew, rather than making sure that the engine is working properly, that the airspace is clear, and that the safety gear is where and in such condition as it ought to be.
Both parties are captive of their own bubbles. The political right and the political left each have staked out different rights, not so much to preserve them, but to keep the campaign contributions rolling in. With a few remarkable people as exceptions, I have as much respect for Democrats as I do for Republicans, which ain't much.
The real problem is, though, that you're probably not going to like the Republicans that would be needed to actually do something legislatively to protect gun rights. So long as the Left maintains its traditional opposition to an armed populace, then we're going to increasingly be at risk, and the only people who can fix that are people on the Left. And I really, really don't see that happening at a meaningful level.
You're correct, we cannot treat Bruen as the Left has done Roe for these last 50 years. It needs to be codified into law. Of course, just like the Left, the GOP doesn't really care about gun rights unless it impinges on their ability to get reelected. They've had ample opportunity to pass NFA reform and national reciprocity. Any time I hear someone campaign on "I will protect your 2nd Amendment rights!" instead of "I will restore your 2A rights!", then I know we've got someone who's paying lip service.