Tuesday, June 28, 2022
The Irony of the Second Amendment and Roe v. Wade
I teach a firearms manufacturer case in Torts. The question arises of the Federal Assault Weapons Ban of 1994 and why Congress cannot enact meaningful gun control. I tell the students that two single issues control many voters. For example, pro-life or pro-choice – that is the single most important issue for many voters. So too with gun control. Single issue voters. The irony is that in two days the Supreme Court put abortion and gun control before the voters’ eyes in the November midterm elections. It’s easy to support gun control in the large, mostly Blue states and cities. However, hunters and others in the less populated states are vehemently opposed to gun control. For example, both Governor Howard Dean of Vermont and Senator Bernie Sanders were late in supporting gun control. Every state has two senators. I remember being in Louisiana once when the powerful Democratic Senator J. Bennett Johnston was running for reelection. His ads emphasized he was a life member of the NRA. The statistics tell us George W. Bush won the presidency in 2000 by 537 votes in Florida. However, Florida would have been irrelevant if Al Gore carried either Tennessee or West Virginia. West Virginia had been a reliably Blue state, but Gore lost it because of his opposition to coal. Tennessee was Al Gore’s home state, but he lost it because he favored gun control. John Kerrey was not going to make that mistake in 2004. He distributed photos of him as a duck hunter with a rifle in his hand. Colorado suffered two horrific mass shootings, the first at Columbine High School and the second in Aurora in a Century 16 movie theater showing The Dark Knight Rises. Senator John Morse, Senate Majority leader, jammed a strict gun control measure through the state senate, holding 7 hearings in one day. Colorado voters recalled him and Senator Angela Giron, who represented the blue collar, heavily Hispanic, city of Pueblo. They were replaced with conservative Republicans. Gun control does not sell in Red counties. Abortion is different, but still single issue. I remember placards in the University of Michigan Union in 1972: COEDS Weekend in New York Hotel Airfare Abortion $199 I think it was $199 – not $299. I sometimes regret not “liberating” one of the placards. States, one by one, were dropping their anti-abortion statutes. The body politic was deciding the issue - abortion with restrictions. The Supreme Court decision in Roe v. Wade changed everything. My initial impression is that it was just an extension of the Warren Court. Chief Justice Earl Warren had retired, but most of the Roe v. Wade Justices sat on the Warren Court. Then came the dedication of the new law building at Ohio Northern University, where I taught from 1972-1975. Justice Blackman, who penned Roe v. Wade, was a Methodist, as was ONU. The Methodist connection got him to give the dedication speech of the new building. The Law School Associate Dean, a devout Catholic, led about a dozen protestors, silently and peacefully, demonstrating as the Justice spoke. Epiphany: Roe v. Wade is different! Professor Ruth Bader Ginsberg was right. She liked the result, but not the opinion. She felt the Court could have tossed the Texas statute without deciding the broader issue of abortion. She feared the poor reasoning of Roe v. wade opened it to reversal. Roe v. Wade cut off the public debate and accommodation over abortion. Pro-choicers relied on Roe v. Wade while pro-lifers organized, organized, and organized. Repealing Roe v. Wade became their mantra. Roe v. Wade provided a false sense of security to pro choice voters. The pro-life voters could organize and protest all they wanted, but the Supreme Court protected the woman’s right to choose. Elections and Senate confirmation hearings have consequences. The Democrats tried to protect Roe v. Wade by fighting the nomination of conservative judges to the Supreme Court. The Kavanaugh hearings became a comedy of the absurd. They attacked him over almost non-existent proof of a possible drunken act of misbehavior in high school, of which no actual proof existed. Justices Thomas and Kavanaugh have no love for the left after the savage confirmation attacks on them. The pro-choicers should blame the state legislative changes on President Obama whose 2020 midterm election gave Republicans of control of most state legislatures and state houses– control, which they have not lost. I feared that if Roe v. Wade were reversed, the effect could be catastrophic for Republicans at the ballot box. Presidents Reagan and both President Bush’s shared that fear. They never pushed hard on pro-choice. I’m not so sure this year. The election of Glenn Younkin as Governor of Virginia showed the “suburban moms,“ previously referred to as “soccer moms,” are concerned about education. They also feel the pain at the pump and inflation. Democrats plan to run in the November elections on January 6, Roe v. Wade, gun control and ballot harvesting. Economic issues often trump social issues at the ballot box. So too with gun control this year. The statute just enacted contains preventative measures, but none of the actual restrictions sought by the Democrats. It undoubtedly passes the constitutional test. The Supreme Court did not ban abortion; it left the decision to the states and the body politic. However, the momentum today, unlike five decades ago, is for states to ban or strictly regulate abortion. We will see extreme statutes, from no abortions under any circumstance to abortions any time prior to birth, live birth abortions. The developing consensus has yet to coalesce. Justice Thomas felt the Court’s other social legislation decisions should be revisited: 1) Griswold v. Connecticut and the right to privacy, 2) Obergefell v. Hodges and gay marriage and 3) Lawrence v. Texas on gay rights. He may theoretically be right, but Roe v. Wade is different – it involves the life of a second human. Both Justice Alito’s majority opinion and Justice Kavanaugh’s concurring opinion refused to go there. Even Judge Robert Bork in his contentious confirmation hearing said he would not overturn Griswold v. Connecticut. Chief justice Roberts, as expected, tried to split the difference by upholding the Mississippi statute but refusing to overturn Roe v. Wade. He had waffled on ObamaCare, having first decided according to his fellow justices to rule the statute unconstitutional, but then cleverly upheld it under the taxation power of Congress. President Joe Biden has been, as might be expected, all over the issue during his career. He said after the Roe v. Wade decision was issued in 1973: “I don’t like the decision. I think it went too far. A woman shouldn’t have the sole right to say what should happen to her body.” He voted in 1992 for a Constitutional Amendment that would allow states to overturn Roe v. Wade, and then voted against it. He consistently supported the Hyde Amendment which is a ban on using federal funds for abortions. He has also said that as a devout catholic he personally opposed abortion, but would not impose his religious beliefs on others. Then we have Senator Biden on tape in 2006. He said: “I do not view abortion as a choice and a right. I think igt’s always a tragedy. , and I think that it should be rare and safe, and I think we should be focusing on how to limit the number of abortions. And there ought to be able to have a common ground and consensus as to do that.” He is not conflicted for he has few convictions. Americans are convicted. They can resolve the issue in state elections. That’s what the Supreme Court held in overturning Roe v. Wade.