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Twice, the Supreme Court Ruled Against We the People

In overturning Roe v. Wade, Justice Samuel Alito writes that "we cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work". Disregard of what Americans want for their country looks to be this Supreme Court's playbook going forward. The 5-to-4 reversal of Roe pays no heed to polls that show that around two-thirds of Americans oppose banning abortion, with up to 80% saying the right to abortion should not be prohibited in its entirety.

The extreme move by the Catholic end of the bench imposing its religion on all Americans will occupy the headlines and protests ongoing, and we have already weighed in with our view of how a sensible country might end the abortion extremism of both sides in "Can There Be a Middle Ground to End the Abortion Debate?" (found here). Better therefore for us to examine the Court decision of just the day before the Roe v. Wade ruling, another seismic shock that the Roe declaration has drowned out.

supreme court building

Just weeks after the massacres in Buffalo and Uvalde, the Court originalists decided that more guns are needed where people congregate. They find that a New York law, on the books for over a century, is unconstitutional for requiring that a citizen demonstrate a "special need" for a permit to carry a gun in public. The six conservative justices believe that New York's law infringes our Second Amendment rights, their remedy being that we are now free to carry concealed guns in public. Eight in ten New Yorkers do not want their law overturned, but Alito has told us that they're extraneous. Congress is close to passing a modicum of regulations to curtail dangerous gun buyers and owners — finally — in an atmosphere where some 90% of Americans want to see much stronger restrictions, and yet the Court has chosen to go in the opposite direction.

New York City Mayor Eric Adams says he will fight it, the state's Governor Kathy Hochul called it "reckless" and "reprehensible", and President Biden said it is a "bad decision" that has him “deeply disappointed” with a ruling that “contradicts both common sense and the Constitution, and should deeply trouble us all.”

Here's Clarence Thomas writing for the majority:

“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees, We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

Those who disagree can readily point to Second Amendment's prescribing the special need the young country had for militias as why the people were given the right "to keep and bear arms", but that's a clause that the originalists on the bench have found it advantageous to ignore.

American history and tradition have become a justification test for this court. It seems that the severe limitations of originalism and textualism have proven problematic, so the conservative faction has broadened validation of a law to whether it is "deeply rooted in this Nation's history and tradition". This doctrine will have the effect of dragging every decision backward through 240 years that for the most part were very unlike and therefore unsuited to life in the twenty-first century. Author of the Bill of Rights James Madison could not possibly have foreseen the lethality of today's hand-carried weapons. Were he able, surely the Second Amendment would have been vastly different. But Thomas give that no recognition.

Alito looked for a history and tradition of abortion freedom and found no such right. Similarly, Thomas could not find a history and tradition of regulations against carrying arms, that despite hundreds of laws in states and communities throughout the nation. A “staggering array” of gun laws was enacted in the years after the Civil War that imposed permit requirements and banned concealed carry, wrote a dozen English and American history professors in support of the New York law. They could have pointed to the Wild West and Tombstone, Arizona, where new arrivals to town had either to deposit their guns or register them with the sheriff. But Thomas has shown irritation that the judiciary has been lenient of such state laws and has forewarned that, in proposing any workaround to the Court's decision, any "government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation”.

Only five other states and the District of Columbia have laws similar to New York's — California, New Jersey, Maryland, Massachusetts, Hawaii — but they total some 90 million Americans, over a quarter of the the nation's population, and contain its two most populous cities. The Court, fussing over the Constitution's amendments, shows no concern for the reality of American streets. Justice Amy Coney Barrett acknowledged that there are "sensitive places" where guns would be ill-advised, but as example of what qualifies came up with "Times Square on New Year's Eve is a sensitive place". Ms. Barrett could do well to discover that the jostling hordes on New York City's packed sidewalks can get sensitive in a hurry.

The Supreme Court ruling greatly expands District of Columbia v. Heller . In the 5-to-4 decision in 2008 the Court struck down D.C.'s ban on handguns and the requirement that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock. It was only the first time the Court considered how the Second Amendment applied to an individual's right to possess weapons unconnected with service in a militia. With the opinion by Antonin Scalia, the Court allowed such weapons for defense of one's family but to be kept within the home and permitted restrictions such as banning possession by felons and the mentally ill and carrying in “sensitive places” such as schools and government buildings.

Now, it its ruling 14 years later, the Court has the homeowner venturing into a city street packing that handgun under his jacket. In their cloistered existence (Justice Kavanaugh recently might argue otherwise) the justices' absorption with a Constitution written almost a quarter of a millennium ago is oblivious to today's huge and crowded cities. In the hearing last November there was an exchange in which Justice Alito asked, what about someone who works nights and has to take the subway home to a high-crime neighborhood? Why shouldn't that person be able to carry a gun? He presented a perfect case that the New York "special need" law serves nicely, rather than, for the sake of the night worker, the Court's blanket ruling that allows the packed daytime commuter subways to be permeated with riders wearing concealed guns. In two hours of oral arguments that day, the entire concern was about rights, with no concern for public safety.

Manhattan District Attorney Alvin Bragg said in a statement Thursday that the court’s ruling “severely undermines public safety not just in New York City, but around the country” where common sense gun laws are sure to be challenged in an avalanche of court cases filed by the National Rifle Association and the gun lobby.

Returning to the abortion ruling, the court voted 6-to-3 to uphold the Mississippi law banning abortion after 15 weeks, but 5-to-4 to overturn Roe. Chief Justice Roberts wouldn't go along with banning abortion altogether writing "there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs".

And then there is Justice Thomas's concurring opinion. He assures that the Court "today declines to disturb substantive due process jurisprudence" such as 1965's Griswold v. Connecticut, the right of married persons to obtain contraceptives; 2003's Lawrence v. Texas, (2003), the right to engage in private, consensual sexual acts; and Obergefell v. Hodges (2015), the right to same-sex marriage.

But he then uploads his theory that the Fourteenth Amendment due process clause only guarantees a citizen's right to a process. That process cannot create a right, cannot add the "substance" of a right, as these decisions took the liberty of doing. Consequently, "substantive due process" is for Thomas "an oxymoron" and the Court should “correct the error” by revisiting the three cases above and reversing them. (It is to be noted that he does not include 1967's Loving v. Virginia for reversal, another of "privacy" rights cases, this one permitting mixed race marriage. Thomas is married to a white woman).

Justice Thomas clearly believes that there are no implicit rights in what we thought was a free country, that the only rights we have are those declared in the Constitution. So-called rights such as access to contraceptives, privacy of sexual acts, and same-sex marriage cannot be assumed if not explicitly ordained by the state. For him the Bill of Rights of the Constitution seems to be a mechanism to control the public; it says 'you can have these rights but no more'. Mr. Thomas's beliefs are nicely in line with Benito Mussolini, who created the first one-party fascist state and defined fascism as “everything within the State, nothing outside the State, nothing against the State.”

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