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Can preserving the Second Amendments Strengthen Roe v. Wade?

Ben Adler looks at the evolving liberal jurisprudence in favor of the Second Amendment, and the implications it may have for...abortion rights?

At the heart of the left-leaning dissenters' argument is a plea for consistency. For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? "The right to bear arms gives you a mechanism to protect your bodily autonomy from attack," says Winkler.

The CAC's main concern in weighing in on the McDonald case isn't to secure gun rights but to set a precedent that will expand individuals' protection under the Bill of Rights to the state level. That would, they hope, bolster liberal constitutional arguments in favor of stronger due-process and abortion-rights protections.

By Ezra Klein  |  March 2, 2010; 7:06 AM ET
 
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Comments

Just another step towards the libertarian "utopia" where the activist courts will decide everything from now on.

Same-sex marriage advocates will also be bolstered by this ruling, as well as more corporate-personhood rights in ways we can't imagine right now. The complete takeover of America by the Palin's of the world is upon us. Corporations, right-wing judges, and churches are going to control everything very soon (and yes they'll find a way to squash the rights they don't favor).

Posted by: Lomillialor | March 2, 2010 8:09 AM | Report abuse

That might be so if the majority of the Supreme Court actually cared about consistency, as opposed to using the federalist principle as a cover for partisan ideology that can be dispensed with when it does not serve. See Bush v. Gore.

Posted by: jtrigg | March 2, 2010 8:10 AM | Report abuse

@lomillialor: "Same-sex marriage advocates will also be bolstered by this ruling . . . The complete takeover of America by the Palin's of the world is upon us"

The complete takeover of America by the Palin's of the world will give us same sex marriage? I do not think so.

Lom, don't be so down. What goes around comes around. As much as I might like a President Palin, it ain't gonna happen. And as much as I'd like a series of actually conservative presidents and senators and congresscritters--as opposed to what we often get, which is Big Government Conservatives or New American Century types--the pendulum swings.

Obama and Reid and Pelosi may not have really taken advantage of this swing, but Bush failed on permanent tax cuts, Social Security reform . . . and radically grew the bureaucracy and started an expensive pre-emptive war of questionable strategic value. Republicans had it all, but there weren't that many conservative victories. Then the Democrats won it all. And there haven't been many liberal victories. Next, the Republicans may make some headway. Then, after a while, they might make some more, or lose some ground. But eventually--especially if they end up in control of everything--their base will get bitterly disappointed and lots of things won't work out and the Republicans will, once again, be handed their hats, and the Democrats will come to power again. And then you can be unhappy about what a crappy job their doing.

Corporations already control everything and have for years, but right wing judges and churches aren't going to control any more in 2020 than they did in 1980. Chill.

Posted by: Kevin_Willis | March 2, 2010 8:21 AM | Report abuse

The 2nd Amendment is pretty obvious in its wording and placement in the Bill of Rights. If it didn't refer to an individual freedom (i.e., "right of the People"), then it would have no meaning at all, would not be a "right", and might as well not be written.

Abortion, however, has no reference in the Bill of Rights, other than the catch-all of the 9th and 10th amendments, but then the question to be decided is at what stage is a fetus a person?

Posted by: RealTexan1 | March 2, 2010 8:43 AM | Report abuse

By the way, 3,700 abortions slated today. The mass slaughter of the innocent, the "Holocaust of our Time" continues.

And folks worry about guns...

Posted by: RealTexan1 | March 2, 2010 8:48 AM | Report abuse

How do liberals interpret the 1st Amendment. Many people thinks that it means the citizens of thee United States of America are free to pool their resources together and conduct a mass-media advertising campaign designed to affect election outcomes....but recently, starting with President Obama has made comments indicating they don't believe it means that---that congress can freely enact laws limiting the rights of citizens specifically from election-affecting activity.

What do you think Ezra?

Posted by: FastEddieO007 | March 2, 2010 8:49 AM | Report abuse

Kevin

What I meant to say is same sex marriage rights would "theoretically" be bolstered by this ruling.

What's clearly happening is that rights are being reapportioned by the USSC. Powers and rights are flowing to corporations, right-wing judges, and churches and away from individuals.

Posted by: Lomillialor | March 2, 2010 9:20 AM | Report abuse

"For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy."

The biggest problem I see with this is even if it did push conservatives into accepting a right to bodily automony, there is still the problem of differing definitions of the status (and rights) of the fetus and how that interacts with a woman's right to autonomy.

Posted by: Castorp1 | March 2, 2010 9:30 AM | Report abuse

@Castorp1: "The biggest problem I see with this is even if it did push conservatives into accepting a right to bodily automony, there is still the problem of differing definitions of the status (and rights) of the fetus and how that interacts with a woman's right to autonomy."

Simple. You have a right to remove, or even shoot, an intruder on your premises to protect yourself, your standard of living, your family, etc. etc. etc.

Any supposed "rights" of the fetus are immaterial. The woman has the right to defend herself from this intrusion she doesn't want to be there.

Posted by: wimprange | March 2, 2010 10:05 AM | Report abuse

wimprange: No it isn't simple. My point merely is even if you could get agreement on the importance of autonomy you wouldn't have agreement on the status of the fetus and what sort of rights it deserves. In other words, the abortion wars would still exist.

Posted by: Castorp1 | March 2, 2010 10:10 AM | Report abuse

Ezra, either Adler or CAC (or both) have no idea what they're talking about.

The passage that makes the least sense is as follows: "The CAC hopes . . . that the court will add not just the Second Amendment but the whole Bill of Rights. That would make state laws vulnerable to federal-court challenges under a part of the Constitution that liberals love: the 'privileges or immunities' clause of the 14th Amendment."

Legally speaking, this statement is wrong in at least three ways:

(1) Almost all of the Bill of Rights is incorporated to apply to the states through the Fourteenth Amendment, so incorporating the rest of the Bill of Rights is not a significant or sensible goal. The provisions that aren't incorporated yet aren't really that important: protection from having soldiers be quartered in one's home (states don't have armies, so this isn't even a possibility), the prohibition on excessive bail (which is usually prohibited under state law anyway), jury trial in civil cases (generally, you can get a jury in state court), the prohibition on excessive fines (believe me, this would just help corporations if it were incorporated), etc. For the whole list, see http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

(2)Incorporation of the Bill of Rights has nothing to do with the Privileges and Immunities Clause. The article says that if the entire Bill of Rights were incorporated, state laws would be vulnerable to challenge under the Fourteen Amendment's Privileges and Immunities clause. But the Fourteenth Amendment's Privileges and Immunities Clause already applies to the states, regardless of whether the entire Bill of Rights is Incorporated. Here's the Fourteenth Amendment's text: "No *State* shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." So, whether this provision applies to the states does not depend on whether there's full incorporation of the Bill of Rights.

(3) Liberals don't "love" the Privileges and Immunities Clause. This is basically because it was interpreted out of existence by the absurdly activist post-Civil War court, and it's probably never coming back. See http://en.wikipedia.org/wiki/Slaughterhouse_Cases. At this point, probably the only important thing that the Privileges and Immunities Clause protects is the right to travel between states. See http://en.wikipedia.org/wiki/Saenz_v._Roe. It's not even that important that the Privileges and Immunities Clause be revived because the Due Process Clauses of the Fifth and Fourteenth Amendments already are available to protect the rights that would conceivably be protected under the Privileges and Immunities Clause (e.g., abortion, gay rights, etc.).

Posted by: blah1 | March 2, 2010 10:13 AM | Report abuse

There is only one 2nd Amendment, Klein.

And every time you stray from your plaintive armchair political kibitzing, you show how little there there is.

Roe v Wade was incompetently decided, and no amount of building on or deriving from that base of tripe will turn the steaming pile into a beautiful butterfly.

The time for a woman to attend to her "bodily autonomy" is before she becomes host to someone else's "bodily autonomy".

And here's another clue: If you find yourself contemplating the modification of one of your cherished principles (heck, mebbe dem guns ain't so bad) in order to strengthen another cherished principle, then you probably have a problem with premises, or logic, or integrity.

Posted by: msoja | March 2, 2010 10:15 AM | Report abuse

One more thing: contra Adler or the CAC, whether the court decides that the Second Amendment applies to the states probably also has little or nothing to do with LGBT rights. Specifically, whether the Second Amendment is incorporated under the Due Process Clause has nothing to do with whether laws discriminating against LGBTs will receive heightened scrutiny under the Equal Protection Clause (i.e., the sort of review that women and minorities get). Two different clauses, two unrelated issues.

Posted by: blah1 | March 2, 2010 10:28 AM | Report abuse

"The time for a woman to attend to her "bodily autonomy" is before she becomes host to someone else's "bodily autonomy"."

A fetus has no bodily autonomy. You can discern this quite simply: remove the fetus from the woman and the fetus dies. And yet the woman lives. The faux-life movement will result in one thing: more dead women. Abortions will continue as they have done for centuries, only--once again--without regulation (been there; done that). Also, this pragmatic argument is quite similar to the pragmatic argument in favor of keeping guns legal. People are going to do it anyway, so we're better off regulating it.

Posted by: slag | March 2, 2010 10:29 AM | Report abuse

As has been pointed out, gun rights are explicitly in the Bill of Rights whereas abortion and gay rights are not. However, I don't think gay and abortion rights are equivalent. Two adult men or adult women engaging in consentual activity doesn't harm anyone else whereas an abortion does cause harm to another. That's an important distinction. There are those who say that if Scalia (as well as the others) votes for McDonald then he has to also support abortion rights are wrong.

Posted by: jeffreydurbin | March 2, 2010 10:35 AM | Report abuse

One more thing... I just want to respond to this comment comparing abortion rights and the right to self-defense w/a gun: "Any supposed 'rights' of the fetus are immaterial. The woman has the right to defend herself from this intrusion she doesn't want to be there." This argument makes sense with regards to rape and protected sex, since in that case the woman didn't consent even implicitly to the risk of the "invasion" of the child. But if the child is due to consensual, unprotected sex . . . well, that sounds like implicit consent to the "invasion."

I'll put it this way: on Seinfeld, Jerry has let Kramer waltz through the door for years and years, never giving explicit consent to just barge in but never refusing it either. That's implicit consent, so Jerry clearly wouldn't have the right to shoot Kramer dead in self-defense the next time that Kramer barged in. Similarly, defense from physical intrusion isn't a very good basis for abortion rights, insofar as a woman has implicitly consented to the risk of pregnancy.

Keep in mind that I say this as someone who generally likes abortion rights. I just think this "invasion" argument is bad.

Posted by: blah1 | March 2, 2010 10:41 AM | Report abuse

@castorp1: "My point merely is even if you could get agreement on the importance of autonomy you wouldn't have agreement on the status of the fetus and what sort of rights it deserves. In other words, the abortion wars would still exist."

=============================================

I'm not under the illusion you or I or anybody will be able to end the abortion wars in the near future. That's not what this debate is about now.
The debate is about how to strenghten Roe v. Wade in these abortion wars.

The right of the woman to have autonomy over her own body has always been the primary argument in these wars. I think it is a HUGE mistake to start debating and argueing with the other side about any perceived "status" or "rights" of the fetus. You will loose that emotional debate.

The debate is about the right of individuals to make decisions over and taking control of their own life, and bolstering that autonomy, needs to be at the heart of this debate.

Posted by: wimprange | March 2, 2010 10:47 AM | Report abuse

Why does Roe v Wade always bring out the trolls?

Posted by: Modicum | March 2, 2010 11:03 AM | Report abuse

The way I see it the left needs to be a bit more sophisticated and realise that aggressive judicial review cuts both ways. The same kind of judging that gives you Roe v Wade, Miranda warnings and other things liberals like can also lead to the invalidation of progressive programmes like New Deal laws, campaign finance reform, and gun control. One cannot, and should not have to rely on having ideologically sympathetic judges on the Supreme Court in order to govern the country.

We need to acknowledge that the combination of strong powers of judicial review and an imperfect constitution that is almost impossible to amend is deeply problematic.

It's better to have a Supreme Court that is a safety net, and only intervenes in cases of the most blatant and egregious abuses. When it comes to subjects on which the constitution is ambiguous, and about which reasonable people can and do disagree (such as abortion, gay rights, gun ownership, campaign finance, pornography, property rights) the court should defer to Congress and to the states.

However I don't think there is much chance of greater judicial restraint in the near future. The problem is that for one ideology to control the court but not to fully use that power amounts to unilateral disarmament. There can be no guarantee that any new committment to restraint will continue to be honoured when a rival majority takes over the court.

Posted by: Modicum | March 2, 2010 11:27 AM | Report abuse

@modicum: "Why does Roe v Wade always bring out the trolls?"

And what constitutes a troll, exactly? Anyone who disagrees with you to any degree for any reason?

Sometimes it seems there are very low and amorphous standards for what constitutes trolling in Ezra's comment section.

Posted by: Kevin_Willis | March 2, 2010 11:28 AM | Report abuse

"The debate is about the right of individuals to make decisions over and taking control of their own life, and bolstering that autonomy, needs to be at the heart of this debate."

That's all well and good, but the problem is not really that the right doesn't respect automony per se--some on the right do and some don't--it is that they have a different conception of what the fetus *is* and what it is owed or has a right to (depending on who you are talking to) and strengthening the principle of automony in our discourse will do nothing to change that fact.

Posted by: Castorp1 | March 2, 2010 11:59 AM | Report abuse

blah1: "if the child is due to consensual, unprotected sex . . . well, that sounds like implicit consent to the "invasion."

The woman has consented to sex, not impregnation. You can invite guests in your house for coffee as well, that doesn't give the guest the right to stay as long as he or she wants or not respect the wishes of the host. Once the host asks you to leave, you have to leave. The host may even call the police to remove you when you refuse. It's her life and her property and her decision.

Posted by: wimprange | March 2, 2010 12:22 PM | Report abuse

RealTexan: For 300 years, the 2nd Amendment has meant a "well regulated militia" not that there's an individual right to guns. Conservative and liberal justices both thought that. Not saying it's a bad thing we changed what we thought, just that it's not so clear. (I mean, c'mon, Scalia said "well regulated" merely means "they have some training using a weapon" and "militia" meant "anyone who could *potentially* be in a militia" -- those don't really pass the laugh test for me, anyway)

Abortion (msoja): without hijacking this thread, many liberals don't believe that life begins at conception but that the potential for life is still worth respecting for a variety of reasons. That makes the "holocaust" claims a little overblown, and this body autonomy stuff off-point to liberals. Because of the disagreement on when life begins, the pro-choice and pro-life folks will forever talk past each other.

FastEddieO007: First Amendment stuff is relatively more settled between liberals and conservatives on the court. There are a whole ton of restrictions on what people, governments, and businesses can and cannot say, determined by safety/policy concerns. I'm pretty sure Obama didn't say anything about forbidding individuals to advertise, though.

Ezra: The comparison really doesn't make sense. The Court did a 180 from Miller to Heller, and re-interpreted the 2nd Amendment, apart from precedent or practice. It relied entirely on the original understanding of the founding fathers to interpret specific words in the amendment. Because this makes no sense on its face (should we allow people to have cannons in their homes?), it also makes no sense to use this technique in figuring out rulings on abortion. The court is simply confused; there's just no way to figure out what arbitrary method of interpretation it'll rely on next.

Posted by: Chris_ | March 2, 2010 12:34 PM | Report abuse

@wimprange: Sorry if I'm unclear. Hopefully I'll clear things things up with a hypo.

Let's say A and B are boxers, and they consent to enter the ring and do some boxing, pursuant to the normal rules of boxing (which allow for punches to the face). B hits A really hard, resulting in one of A's teeth coming lose. A sues B for battery on the basis of his lost tooth, and B defends on the basis that A consented to being hit in the face. A responds, "well, I consented to being punched, but I never consented to having one of my teeth knocked out." B's response, which would probably win in court, is that when one expressly consents to being hit in the face, one implicitly consents to the risks of being hit in the face, including getting one's teeth knocked out.

Now, I don't understand why the same reasoning wouldn't also apply with regards to unprotected sex and pregnancy. Just as the boxer implicitly consented to the risk of having his teeth knocked out by expressly consenting to engage in boxing, so too does one implicitly consent to the risk of pregnancy when one expressly consents to unprotected sex.

This is all to say that I think abortion rights -- when the pregnancy is result of consensual, unprotected sex -- depend mainly on the argument that a non-viable fetus should not be deemed a person with human rights.

If you agree that viability is the important dividing line, then I'd doubt you believe the "invasion" argument yourself. After all, if the "invasion" argument were sufficient, why would it matter whether the fetus was viable? If the grounds for abortion is physical invasion, then that ground exists regardless of whether the fetus is viable until the child is born. But I presume you would agree with the statement that--unless the pregnancy somehow poses a health risk to the mother--a child should not be aborted, say, a single day before birth, long after the child is viable and could survive outside the womb. So, unless you think people have an absolute right to abort the baby until the second after it "clears the finish line" and gets out of the mother, I strongly doubt you believe in the "invasion" argument yourself.

Posted by: blah1 | March 2, 2010 2:00 PM | Report abuse

blah1: the primary intent of having sex is having orgasms, not making babies. Orgasms can have unintended consequences, but that doesn't mean you don't have the right to fix it.

In your analogy, does Boxer A have a right to get treatment for the gaping hole in his or her mouth, or must he or she forever live with that gap?

Posted by: wimprange | March 2, 2010 2:16 PM | Report abuse

And blah1, your analogy fails also on the responsibility argument. Your analogy places the blame on not protecting him- or herself squarely on the woman. And leaves the man completely out of that equation.

Posted by: wimprange | March 2, 2010 2:25 PM | Report abuse

"what is the right to bear arms but the ability to protect your body from criminals as well as the government?"

Huh? The right to bear arms means you can shoot at the government? Armed revolution against the state is a constitutionally protected right? Shooting back at the police when they chase you after you kill someone is a constitutionally protected right?

Posted by: randrewm | March 2, 2010 2:32 PM | Report abuse

In the hypo, Boxer A wouldn't be able to get the cost of fixing the tooth reimbursed by Boxer B. That's how that would legally play out under the law of intentional torts (it's a pretty black and white issue). Obviously, Boxer A could spend his own money fixing the hole, or maybe Boxer A lives in a country where a wise government provides universal healthcare to replace broken teeth. In any event, I don't think this part of the hypo is really relevant -- I was just using it to illustrate how implicit consent works.

Look, I understand that certain people have different intuitions of where abortion rights come from. If you want to say that you can abort a child right up until birth, even in the absence of health risks to the mother, and long after the child is viable, go ahead. But just understand that's the logical consequence of the claim that "physical invasion" is a sufficient basis for abortion rights. And frankly, such a consequence sounds pretty absurd and grotesque, even to someone like me who thinks you ought to be able to get a state-funded abortion of a non-viable fetus.

Posted by: blah1 | March 2, 2010 2:49 PM | Report abuse

@Wimprange: You said, "And blah1, your analogy fails also on the responsibility argument. Your analogy places the blame on not protecting him- or herself squarely on the woman. And leaves the man completely out of that equation."

True, no analogy is perfect -- they're just illustrations of specific points, not comprehensive models.

Of course, men are just as responsible for an unplanned pregnancy. I think this fact justifies stronger laws to make sure that fathers economically support their children. Under some fairly traditional notions of expectation damages, I think it would make sense for absent fathers to be required pay for half of their child's expenses and also pay for the half of the labor costs of raising the child (assuming that the father does not expend any labor in raising the child). Only then would fathers actually internalize the cost of fathering the child.

Posted by: blah1 | March 2, 2010 3:10 PM | Report abuse

The theory presumes that the Supreme Court is a reasoning body, and not just mostly a group of mildy-corrupt, idealogically and religously motivated, anti-populist partisans who decide the issue first and then try to construct the arguments to back up their biased ruling.

Posted by: lithium452 | March 2, 2010 4:26 PM | Report abuse

He is, of course, thinking about a court that reasons forward from principles rather than backward from conclusions.

Posted by: pj_camp | March 3, 2010 8:45 AM | Report abuse

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