Penumbras, Guns, and Abortion

A lot more than gun rights may be at stake when the Supreme Court hears arguments today in the case District of Columbia v. Heller. The case immediately at hand is whether or not Washington, D.C.'s ban on individual gun ownership is legal or if the Constitution guarantees individuals the right to bear arms.

A quick walk down Constitution lane. As it was written by the Founding Fathers, the second amendment says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.'' So, in the Constitution, the right to bear arms is explicitly tied to the formation and existence of a well regulated militia. Clearly, random people owning handguns in their homes is not a well regulated militia. As such, D.C. says that it has not violated any Constitutional rights by banning individual weapons. The argument goes that there is a collective, not individual, right to have a gun. Clearly, others (the NRA being foremost among them) disagree. And that brings us to the lawsuit before the court today.

There's been a lot of writing about how the court hasn't really heard a gun rights case in 69 years and how the second amendment has never been comprehensively interpreted. And in that sense, this could be a big case. However, I want to know how this case applies to abortion rights.

Pretty much since the day that Roe v. Wade was issued, it's been attacked for inventing rights that don't exist in the Constitution. (Technically, this isn't accurate. The right to privacy was actually invented in the case Griswold v. Connecticut. But that's not really the point here.) Strict constructionist judges (think Scalia) say that we need to look at what the Constitution really says and that it's not the role of judges to go around saying what should be in there or not. This sparks an elaborate argument that I won't go into just now. However, keep in mind that the position usually staked out by the conservative justices is one of strict construction that shuns the so-called "penumbras" of implied rights that "emanate" from the explicit rights laid out in the Constitution.

And yet, now in order to find an individual right to bear arms unconnected with a well regulated militia, the court would have to find a conservative version of those very penumbras that gave us the right to privacy. A strict reading of the Constitution would lead us to think that the right to bear arms is tied to the existence of a well regulated militia. Absent that, the Constitution is silent. That being the case, states have the power to make their own decisions on the matter (thank you tenth amendment) and the D.C. ban should be valid. However, if there is an implied right for individuals to own guns (say, from the second, ninth, and fourteenth amendments) then why could there not also be an implied right to privacy, and with it, the right to have an abortion?

While the arguments will be held today, we won't get the decision for months yet. And my guess is that when we do hear the court's ruling, it will follow the O'Connor model of a narrowly written opinion that doesn't address the sweeping issues at stake. But maybe it will. And if it does, it will be very interesting to see what the court thinks.