For most liberals, hopeless or otherwise, the June 23, 2022, SCOTUS decision in NYS Rifle & Pistol Assn. v. Bruen (providing constitutional protection for locking, loading and publicly carrying firearms) hit like a 6 on the Richter Scale. But the very next day’s decision in Dobbs v. Jackson Women’s Health Organization (overruling Roe v. Wade and Casey) subjectively registered as a 7, despite a month’s warning. And N.B. on Richter 7 = 10 x 6.
Maureen Dowd
The Sunday Times, which is a good barometer for discovering the dominant concerns of liberals and progressives, seems to confirm this impression. This week’s top stories (the paper’s designation) included four launched by Dobbs “New Abortion Bans Close Off Options for Youngest Patients”; “What Will Happen If Doctors Defy The Law to Provide Abortions”; “Irish Eyes Aren’t Smiling” (Maureen Dowd’s umpteenth attempt to explain anything and everything in relation to Ireland, her Irish heritage and her conservative Irish-American brother); and “Research Has Revealed Who Gets Abortions in America” (an article the Times says was published in December 2021 and was republished now for unstated but obvious reasons.) But the July 2022 version actually includes a newly edited sentence, that being in the parenthetical “But in the reproductive lives of women (and transgender and non-binary people who can become pregnant) across America, abortion is not uncommon.”
But there was not a single Sunday Times top story about Bruen or Uvalde, or Buffalo or Chicago. (Greenwood, Indiana occurred later that day). Here at HL we think that as bad as Dobbs is, Bruen is worse and a good measure so. Not merely in terms of the number of lives that will be lost, destroyed and severely damaged, but more importantly because the democratic responses to Dobbs are and will be many and powerful. Watch the current democratic fight occurring in Kansas, where the state constitution currently protects the right to obtain an abortion. With the shackles that Bruen places upon democratic action, that’s not the case.
Clarence Thomas & Samuel Alito
With that month warning on Dobbs, and in truth a head start that began no later than the day in October 2020 when Amy Coney Barrett was confirmed, it was virtually certain that Roe would fall. Right then the liberal and progressive worlds began funding and building the legal framework, overground railroad and other infrastructure necessary to provide most American women with a choice, regardless of where they reside. A choice that will require hardship and distress and will result in much suffering and death to some in no choice states, but nevertheless. . .
And in building that choice-affirming world a good deal more is happening. The states limiting or eliminating choice are intensifying their race to the bottom. Many of these states, having lost their war against Obamacare, are still limiting expansion of Medicaid while rejecting available federal funds. They encourage gun worship and carnage. They curtail progressive taxation and pretend to pay the public-school teachers who are supposed to educate their children. They demonize and ignore Fauci, the CDC and the public health community. Since most of their electeds and those governed have read neither Freakonomics nor HL 16 (An Uncomfortable Reason Abortions Have Declined) they don’t know that outlawing abortion substantially increases both violent crime and the frequency of abortion.
For these and many other reasons the life expectancy of their people flattens and even declines. Not we, but social Darwinians contemplating their policies are smirking. Smart young people in these states will increasingly leave, while others stay and continuously double down as they did during the four MAGA years.
Phil Bryant & Antonin Scalia
Bruen, unlike Dobbs, does not leave much, if any, room for democratic choice. Dobbs leaves the law regarding abortion and choice to each state, while Bruen deprives every state and the Congress of the ability to prohibit carrying publicly, while extending Antonin Scalia’s outright fabrication of the Second Amendment’s plain meaning and intent (in Heller and McDonald) to protect not only public packing, but many other Westworld practices. There are already numerous challenges to current California gun restrictions, based upon the Bruen decision and reasoning. The only comprehensive relief from Bruen is its overrule as “egregiously wrong when decided” along with Heller and McDonald. The earliest that likely can happen is decades from now. The other escape from Bruen is in amending or entirely repealing the Second Amendment. The math for that (2/3 in both houses of Congress and ¾ of the states) is impossible at this moment and thinkable only after thousands more mass killings and millions more die from bullets mostly fired from guns easily purchased in those same red states banning abortion and racing to the bottom. As bad as Dobbs is and will be, Bruen will prove worse.
Well stated insight on our current – although its antecedents in modern politics goes back to the John Birch Society of our college years – predicament. In the short term, I will focus my efforts on supporting a Democratic majority in the Senate, with a particular focus on Pennsylvania where a vote for Fetterman is likely to translate into a vote for Josh Shapiro for governor – a key post for the 2024 Presidential election.
I was not surprised to see that Scalia’s selective historicist evidence from Heller was accepted wholesale by the majority here. Any neutral analysis of the historical record shows that municipalities consistently have adopted robust gun control measures throughout our history.
While in general I remain more concerned about the curtailment of rights rather than the restriction of an express right, the continued vitality of Nino-prudence, the selective and subjective use of historical traditions to inform textual interpretation, is a significant concern.