Supreme Court looks to history books to redefine abortion and gun rights

The lesson from the final days of the court’s 2021-22 term is apparently that constitutional rights should be determined in the history books, as interpreted by a conservative majority of five justices.

The Fourteenth Amendment, one of three enacted after the Civil War, is formulated in broad terms to prohibit states from depriving anyone of “life, liberty, or property, without due process,” or from denying anyone “equal protection of the law”. In the past, said Cory Franklin, a UCLA law professor, the court has defined “freedom” to include “the kinds of rights that are meant to be protected,” a definition that eventually covered abortion and same-sex marriage. .

But now, she said, the court “has rejected that test and asks whether the right specifically has a long history of protection,” a test that many disputed rights cannot pass.

The process is ideologically selective, said Erwin Chemerinsky, dean of UC Berkeley Law School and a liberal jurist.

“They look at history, but only history that supports their position,” he said. “They ignore the half century of history protecting the right to abortion (since the 1973 Roe v. Wade decision which the court overturned). They ignore New York’s law (limiting the concealed carry of firearms) that is over a century old and all concealed weapons regulations.

But UCLA law professor Eugene Volokh, a libertarian scholar, said the court was simply interpreting the Constitution according to its original meaning.

The current majority would say that “we follow the Constitution as written because it is the law, and part of following the Constitution is following it as it is understood at the time it was written, rather than as updated by judges’ opinions of what it should be,” Volokh said. “When there is a need to change it, there can be a constitutional amendment.”

Other conservative jurists have also included history lessons in recent constitutional rulings. In a 2-to-1 decision on May 11 overturning California’s ban on the sale of semi-automatic rifles to anyone under 21, Judge Ryan Nelson cited the late 19th-century membership edict. the 18-year-old militia and said, “America would not exist without the heroism of the young adults who fought and died in our revolutionary army.

That decision could be overturned by the full appeals court, which has a majority of Democratic appointees. But the Supreme Court may have the final say, in light of its 6-3 ruling on Thursday that overturned New York’s restrictions on concealed carry of firearms and will invalidate similar laws in five other states, including California. .

In that decision, Judge Clarence Thomas, a self-proclaimed “originalist” — one who interprets the Constitution as he perceives the original framers, independent of the broader interpretations of the modern era — said previous gun decisions had wrongly considered factors such as whether a law would impose a modest or severe burden on gun owners and sellers.

On a proper view of the Second Amendment right to own and bear arms, Thomas said, any restriction is unconstitutional unless the government can prove that it is “consistent with the historic tradition of gun regulation of this country”. And because states when the nation was founded allowed ordinary citizens to carry guns in public, he said, a state cannot prevent them from doing so now — despite recent waves of mass shootings, which Thomas deemed irrelevant to the legal issues.

Similarly, Judge Samuel Alito, in Friday’s abortion ruling, said “the Constitution makes no reference to abortion” and that the procedure is not part of “history and tradition. ” of the nation. The history he was referring to was not that of more than 49 years since Roe v. Wade, but 105 years earlier, when abortion was rare and often dangerous and women had no voice in the political process. He also cited English cases dating back to the 13th century that condemned abortion as murder.

Although Alito insisted that the decision did not threaten other rights the court recognized under the Fourteenth Amendment guarantees of liberty, such as contraception and same-sex marriage, the court’s three dissenting justices said that according to the logic of the court, “all rights that do not have the history going back to the mid-19th century are not safe. And Thomas, who joined Alito’s opinion, said in a separate opinion that he would vote to overturn decisions on gay rights and contraception.

“It’s doubling down on originalism,” said Alison Gash, an associate professor of political science at the University of Oregon. “When you read the decisions together, if (an individual right) is not explicitly written in the Constitution, like their reading of firearms, then it should be up to the legislative determinations of the state.”

“Based on 19th century laws, how does this take into account the gender inequality that was pervasive at that time?” asked Stanford law professor Bernadette Meyler. “I don’t know how the Second Amendment investigation (of the court) will apply to new types of weapons. And do you want states to comb through the archives of 19th century laws” to decide what laws they can pass?

Maybe so, at least for a right like gun ownership that’s expressly spelled out in a constitutional amendment, said Cal State Long Beach political science professor Jason Whitehead. On these matters, he said, “the court inquires into the original public meaning of the words at the time they were written or ratified to determine the meaning of this text.”

But Whitehead said such inquiries are ill-suited and can easily be exploited on issues such as abortion rights which are not part of the constitutional text and have instead been interpreted for decades as part of the guarantee of Freedom of the Fourteenth Amendment.

“The court is free to browse at will among a number of historical books and articles to determine for itself whether ‘the nation’ has a ‘tradition’ or a ‘history’ of protecting a ‘right’ particular,” he said. “Who knows what these questions mean? How far should we go back?

“The majority of the court apparently accepted the absurd idea that any historically illegal practice is ipso facto not a fundamental right. It gives them a huge weapon against gay rights, artificial contraception, interracial marriage, etc.

Bob Egelko is a writer for the San Francisco Chronicle. Email: begelko@sfchronicle.comTwitter: @BobEgelko