Guns 'n' Abortion

Who decides?

We got the good gun decision today from the U.S. Supreme Court, guaranteeing the right of law-abiding, adult Americans to carry concealed weapons. The abortion decision, possibly overturning Roe v. Wade, was postponed.

This brings up a question: Who decides whether such things can be regulated? The states or the federal government? Before this gun ruling, regulating gun possession in public was left up to the states; while abortion after Roe in 1973 was a matter for the federal courts. But today, gun laws are in the federal courts, which have guaranteed the concealed-carry right; while Roe, if overturned, could go back to the states, as it was before 1973.

Last November, J. Michael Luttig, a former U.S. Court of Appeals judge appointed by GHW Bush in 1991, and Richard D. Bernstein, an appellate lawyer, argued gun laws belong with the states:

The court has a newly reconstituted conservative majority who may want to expand Second Amendment rights and protections. But that would be a mistake in this case because the framers of our Constitution intended the people and their democratically elected legislatures to decide where and when to permit the carry of firearms in public, as they have done for centuries.

The Supreme Court is not constitutionally empowered to make these decisions, and it is ill suited to make them.

Well, as the late Ross Perot might have put it: That horse has left the barn. Conservatives made that argument for years about abortion, that “the framers of our Constitution intended the people and their democratically elected legislatures to decide.” But the artument to fall on deaf ears for 50 years — until, possibly, next week.

After the Civil War, the 14th Amendment was adopted, giving us the Incorporation Doctrine, which, according to JRank, “makes the first ten amendments to the Constitution—known as the Bill of Rights—binding on the states.” And who interprets what is and is not “binding on the states”? Not the states. Appomattox settled that one. The Supreme Court decides. That’s it. Albeit the court is aware if it goes to far, Congress can pull its appellate jurisdiction on the matter, according to the Constitution, nullifying the decision, and reducing the court’s power.

In his dissent to Roe, Justice Byron White called it “raw judicial power.” Which is what it was. The court just did what it wanted, then dressed it up with legal gobbledegook, like the absurd “trimester” argument. Did you ever hear a pregnant Mom say, “Well, my baby just passed the first trimester”?

And White was a liberal Democrat appointed by JFK. But he was an old local judge, like my late father, so he dealt with real people and real situations every day from the bench, not the hoary abstractions of law-school theorists.

As to the new decision, it wouldn’t surprise me if it’s related to the recent attacks on the court’s conservative members by left-wing psychos over the impending abortion decision. Being holed up in a secret location with armed guards outside tends to concentrate the mind, and make one think about defending one’s family with the necessary armamentarium.

Here’s a musical interpretation of the situation with the Constitution: