Suddenly, Americans live in a country where they have a constitutional right to carry a gun in public but have no right to control their own reproductive choices. Both outcomes flow, allegedly, from the Constitution. But the idea that there is some sort of mechanical linkage between certain of its provisions and the Supreme Court’s opinions is false. Both decisions, on guns and abortion, rest on contestable moral and political choices — and the court’s resolution of those choices in turn depends not just on the justices, but on the strategic choices of both the Republican and Democratic parties.
The GOP apparatus has skillfully stocked the court over the years with justices touting an “originalist” approach to the law. This has a patina of legality and constraint, but ultimately allows justices to track closely with Republican policy ends. Meanwhile, the Democrats who now control the White House and Congress offered no countervailing pressure on the court, allowing its conservative majority to act without fear of consequences.
The opinions in Bruen and Dobbs alike interpret a provision in the Fourteenth Amendment that was enacted to resist the so-called Black Codes, which were promulgated across the South to squelch the freedoms of Black people after the Civil War. The drafters and ratifiers of the Fourteenth Amendment were primarily concerned with chattel slavery and its legacies. A consistent application of the court’s “originalist” method therefore would potentially find neither a right to a firearm nor a right to abortion in its folds. Neither is mentioned, after all; and neither is obviously pertinent. How did the court come to find a right to public carry, but not a right to abortion?
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