Column: Catching Air
The Supreme Court’s recent decisions on abortion and the Second Amendment right to bear arms are finally placing limits on the kind of judicial activism that has made our Constitution and Constitutional law almost unrecognizable. While these two cases may seem very different, the Court is telling us in both cases that the Constitution means just what it says, no more and no less, unless history and tradition prove otherwise.
Dobbs v. Jackson, decided June 24, finally overturned the so-called Constitutional “right” to abortion that was invented by an activist Supreme Court in 1973 as an implied Constitutional right under the case of Roe v. Wade.
The case of New York State Rifle & Pistol Association v. Bruen, decided just a day before Dobbs, held that the Second Amendment right “to keep and bear arms” means what it says. Subject to reasonable licensing requirements like background checks, and restrictions on guns in sensitive places like schools and government buildings, Americans have the right to carry a handgun outside their home for self-defense.
The Court ruled that Constitutional interpretation needs to consider the historical background
Both of these cases establish a long-overdue limit on the power of government to re-write the Constitution. State laws that depart from the actual wording of the Constitution, whether by adding new “implied” rights or by limiting our rights that are explicitly defined in the Constitution, are invalid if they are not supported by our nation’s historical traditions.
The founding fathers when they wrote the Constitution could not foresee every issue the country would face, so they created a Court system to apply the Constitution in a changing world. Judges and legal scholars have struggled for years over the proper theory of Constitutional interpretation, 
including originalism, textualism, strict construction or a “living Constitution.” Liberal judges have generally opted for expansive interpretations in line with their changing political views. Conservative Justices generally try to stick as close as possible to the actual wording of the Constitution and its original intent.
including originalism, textualism, strict construction or a “living Constitution.” Liberal judges have generally opted for expansive interpretations in line with their changing political views. Conservative Justices generally try to stick as close as possible to the actual wording of the Constitution and its original intent.Dobbs and the New York State Rifle case, at last, are moving us toward a stricter interpretation of the Constitution that will be properly tethered to our Country’s historical traditions, reflecting what the founding fathers meant by the words they used and giving due respect to the intentions of the state legislatures when they ratified the Constitution.
Abortion:
The Supreme Court in Dobbs held that a so-called “right” that is not expressly stated in the Constitution, like abortion, cannot be read into the document if it is not “deeply rooted in our nation’s history.” In overturning Roe v. Wade, Justice Alito provides a lengthy historical survey of abortion laws that existed many decades before Roe, observing that until the second half of the 20th century there was no support for a right to abortion. The Roe decision was wrong to declare an “implied” right to abortion since there was no basis for that in text, history, or precedent. Therefore, the Court said that the abortion issue should be decided by each of the individual states.
As a side note, with all due respect to Justice Alito, it can be argued that the Court should have gone further to find a Constitutional right to life for the pre-born rather than simply shifting abortion law to the states. Modern science has shown conclusively that pre-born children are human beings and the Fourteenth Amendment says that no person is to be deprived of life, liberty, or property without due process of law, nor denied the equal protection of the laws. One of the main purposes of our Constitution is to protect individual rights against the “tyranny of the majority” and the pre-born in this case are especially in need of such protection since they cannot vote or speak for themselves.
Second Amendment:
The Court in New York State Rifle & Pistol Association v. Bruen overturned a New York law that would have required anyone wanting to carry a concealed handgun outside their home to obtain a license based on proof of a special need for self-defense, for example a pattern of physical threats, not just a general desire to protect themselves. Justice Thomas wrote the Court’s opinion, holding that any restrictions on an express constitutional right (like the Second Amendment right to bear arms) must be “based on the text as informed by history.” The state of New York was unable to show that its gun regulation was consistent with the historical understanding of the Second Amendment or the Nation’s historical tradition of firearm regulation.
The Court reviewed nearly seven centuries of history to conclude that there was generally no historical requirement for law-abiding citizens to show a special need for self-defense in order to carry a gun in public. While the Court recognized that historical analysis can be difficult and nuanced, Justice Thomas points out that reliance on history to inform the meaning of constitutional text is more legitimate and more workable for judges than asking them to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions.”
Where do we go from here?
Based on these cases, the Court will now look to our country’s history and tradition in judging the validity of rights, like abortion, that are not explicitly found in the Constitution, or the validity of government regulations, like gun laws, that limit our explicit Constitutional rights.
Will the reversal of Roe v. Wade lead to future restrictions on other implied “rights” like same-sex marriage (Obergefell v. Hodges) or contraception (Griswold v. Connecticut)? Justice Alito suggested that this will not happen since abortion is a unique case involving what he called a “potential life.” However, Justice Thomas believes the Court should reexamine those other cases since they were based on the same faulty Constitutional analysis as Roe. Even liberal Justices Breyer, Kagan and Sotomayor concede that the “right” to abortion at the core of Roe v. Wade is “part of the same constitutional fabric” as those other “rights.”
(Griswold v. Connecticut)? Justice Alito suggested that this will not happen since abortion is a unique case involving what he called a “potential life.” However, Justice Thomas believes the Court should reexamine those other cases since they were based on the same faulty Constitutional analysis as Roe. Even liberal Justices Breyer, Kagan and Sotomayor concede that the “right” to abortion at the core of Roe v. Wade is “part of the same constitutional fabric” as those other “rights.”Will the Court’s Second Amendment decision be followed by Court rulings that overturn other gun restrictions? The New York gun restrictions that the Court rejected are very similar to gun restrictions in other states, including California, Hawaii, Maryland, Massachusetts and New Jersey, and the California Attorney General has already announced that it will comply with the Court’s ruling. If the Supreme Court is serious that all gun restrictions must be grounded in our historical legal tradition, it is likely that a host of other gun restrictions nationwide eventually may be lifted.
After these Court decisions, the Democratic Party is worried that some of their most cherished Court decisions over the years are at risk. Unless they can change the Court, they may have to focus on the ordinary legislative process in the future, where they have been generally less successful in the past, rather than relying on activist judges and judge-made law. Conservatives, on the other hand, are happy to see the Court finally making a serious effort to read the Constitution as it was intended.
David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »
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