Arguments about the right to keep and bear arms and the right to reproductive autonomy share a number of similarities. And, shortly after Heller, Judge J. Harvie Wilkinson underscored similarities in the how Court’s decisions in Roe and Heller removed controversial political issues from the realm of democratic choice, in what Judge Wilkinson thought improper and unjustified ways. The similarities in both rights debates have always stood out to me.
Although the symmetry is not perfect, it seems to me that there are some core arguments around both gun rights and abortion rights that mirror each other:
- Opponents of the right view the Supreme Court’s description of the right to be textually unmoored from what the Constitution says (penumbras, etc., on the one hand; well-regulated Militia, on the other);
- Even scholars sympathetic to the contested right criticize the Supreme Court’s rulings discovering the right;
- Opponents claim the right was imposed on the country on the basis of Justices’ policy values and political preferences, not on the basis of proper legal (however defined) reasons;
- Opponents strongly believe the exercise of the right has the potential to kill people;
- Proponents strongly believe restricting the right has the potential to kill people, especially the rights-holder;
- Proponents perceive the right as constantly under attack from lawmakers who don’t understand or appreciate the right because they are out of touch with, or hostile to, the people who exercise it;
- Proponents view the ability to exercise the right, even if they never need to do so, as fundamental to their autonomy and necessary in a free society;
- At the same time, both sides generally acknowledge that the state has legitimate interests in imposing some regulations on the activity at issue; and
- Laws regulating the right are often *designed* to make exercise of the right more difficult because policymakers passing those laws often believe the harms of exercising the right outweigh the benefits.
Consider the following argument, made by a distinguished jurist, and see if the right at issue is immediately apparent. I’ve edited and paraphrased the argument so that it retains the same meaning as the original, but omits reference to the particular right at issue; this, to me, underscores the similarities in arguments about both rights.
As to this type of activity, there’s a strong argument that the Supreme Court should “allow breathing room for reasonable state regulation.” Just as the state has a legitimate interest in regulating other activities related to health and safety, so too it has such an interest here. And, as a matter of first principles, the debate over whether a state should prohibit the conduct at issue confronts lawmakers with a hard choice. But by holding that the Constitution forbids a total ban, the Supreme Court “took from state lawmakers the authority to make this choice.” Since it’s already done that, the Court certainly shouldn’t expand an approach that limits state regulatory decisionmaking to any greater degree. Indeed, it would be a “suffocating approach” for courts to strike down regulations “based on flimsy and unsupported factual assumptions,” like unquantified claims that regulations increase the cost of exercising the right; after all, scores of routine regulations increase the costs of certain activity, and “[n]o doubt there are instances in which these cost increases burden the exercise of constitutional rights.”
These are arguments that Justice Alito made about abortion regulations in a 1985 memo he wrote about upcoming abortion cases while working in the Solicitor General’s office. It seems to me that one could make those exact arguments about gun regulations, using the same reasoning Justice Alito applies to abortion. (See, e.g., Kwong v. Bloomberg, upholding New York’s firearm license fees and noting that “plaintiffs have put forth no evidence to support their position that the fee is prohibitively expensive”).
I suspect that many of the similarities reflect the deep cultural and moral disagreements that surround the rights to reproductive autonomy and to keep and bear arms. In some cases, members on both sides of both debates hold their views as deeply as articles of faith, even though the issues tend to energize the exact opposite sides of the political spectrum.
There are surely other similarities I haven’t recited here, and such similarities are among the reasons that many commentators, including Stacey Sobel, Nicholas Johnson, Melanie Kalmanson, and Jessica Lujan (and probably many others) have proposed using the Court’s reproductive-autonomy jurisprudence to flesh out Second Amendment doctrine. Judge Wilkinson’s noted displeasure with both Heller and Roe similarly sees a parallel in two sets of doctrine.
As Second Amendment doctrine moves forward, courts will likely continue looking for other rights’ frameworks to use in shaping the law. The Supreme Court might have a chance to do that in NYSRPA, the first Second Amendment case for which it has granted cert in almost a decade. But New York recently changed the challenged law, which may end up mooting the case. Perhaps another of Justice Alito’s 1985 observations might bear on the resolution of NYSRPA: a federal court should not be “so eager to overturn” certain types of regulations, or “so deeply suspicious of [a particular] legislature” it views as hostile to the right “that it insist[s] on reviewing and invalidating laws no longer on the books.”