If it’s remotely possible, consider putting aside your fears of what might be and instead consider what is. The right to an abortion is one of the most feared losses on the left, it being of deep concern that a conservative block on the Supreme Court might reverse Roe v. Wade or, more likely, approve limits on abortions that will put those rights on the slippery slope of obliteration.
In the meantime, Virginia Representative Kathy Tang offered a bill to expand the right to an abortion through the moment of birth, with conditions that included a physician’s certification that birth would “likely” threaten the mental or physical health of the mother. The bill failed, but not before it evoked outrage and took a toll on Governor Ralph Northam, whose words confusingly suggested that the right might be availabe after birth as well. It’s not what he meant, even if it’s kind of what he said.
https://www.youtube.com/watch?v=t0kC1B__CJ4
In the midst of outrage and confusion, Julian Sanchez brought a dose of sanity to the debate:
I should probably know better than to wade into Abortion Twitter, but… on what planet do people imagine a woman carries a viable, healthy fetus to term & then decides to abort on the delivery table? Does anyone seriously believe this is a scenario we have to worry about?
Obviously not. No doubt 99.99% of the time, this would be the case. But experience tells us there will be that .01% of the time when the confluence of crazy aligns and the dreaded thing happens. Don’t ask how. We never seem capable of imagining how things go horribly wrong, but we know they do and will.
The question is whether that outlier matters. After all, the right to an abortion exists, not because it’s mentioned in the Constitution, directly or obliquely, but because the Supreme Court adopted it, emanations and penumbras. It is a constitutional adoption, a right that is nowhere to be found in the words of the Constitution, not even if the inferences to be drawn from those words, but by the Supreme Court saying so, adopting it into the Constitution and the constellation of rights.
In constrast, there’s a right that is mentioned in the text of the Constitution specifically. What exactly it may be has been hotly contested and changed dramatically over the more than two centuries of the Constitution’s existence, but it’s definitely in there. And the Supreme Court says it protects a fundamental individual right to keep and bear arms.
After this holding, and its extension to the states, the Supreme Court went dark on the Second Amendment, leaving circuit courts of appeals to uphold local restrictions and refusing to uphold its Heller and McDonald rulings by denying certiorari. The Second Circuit was one of the most strident circuits in relying on Justice Scalia’s “errant paragraph” to ignore the core ruling, leaving intact New York’s extreme limitations on gun possession and use.
Few saw the point of challenging these regulations, as there was no chance of prevailing in the circuit and even less chance of getting the Supreme Court to overturn an adverse ruling. Why waste time and money for not only a certain loss, but a conclusive bad holding that wouldn’t be overturned? As Justice Thomas said in his dissent to the denial of cert in Silvester v. Becerra:
The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.
The Supremes have now taken a case from New York, raising the specter that it has welcomed this constitutional orphan back into the bosom of the Court.
Last week the court agreed to hear a case from New York City that would, for the first time in a decade, allow the justices to decide whether the right to bear arms is, as Justice Thomas complained last year, a “constitutional orphan.”
On the surface, the case, which the justices will hear in the session that begins in October, seems inconsequential. Three New Yorkers, backed by gun rights groups, are challenging an administrative rule that permits people with a license for a gun on a particular premise, like the owner’s home, to take it only to one of the seven shooting ranges in the city. That means no trips to shooting ranges or vacation homes upstate or across the Hudson to New Jersey.
To possess a gun permit in New York City is to be purer than Caesar’s wife. It’s not that there is any reasonable fear that these three New Yorkers will hold up a liquor store on the way to the shooting range, but that the Supreme Court has, for the first time in a decade, taken on a case that may affirm that a right they’ve held to be fundamental based on its interpretation of the words expressed in the Second Amendment is, indeed, a fundamental right.
Could the Supreme Court’s conservative bloc use the case to declare that a gun owner has a constitutional right to carry a handgun anywhere outside the home, sensible limits be damned? Chief Justice John Roberts Jr. has, at times, played the role of centrist, and he may turn out to be a moderating force in keeping that from happening.
On the one hand, there is a right, which we know to be a right because the Supreme Court has said so, that appears nowhere in the Constitution, but a right for which no “sensible” restrictions are tolerable. Not even a restriction that would preclude abortion in the third trimester except for the physical survival of the mother.
On the other hand, there is a right, which we know to be a right because it’s expressly stated in the Second Amendment, plus the Supreme Court has said so, for which almost no restriction isn’t “sensible.”
We have constitutional orphans and constitutional adoptions, and they do not recieve the same love from the Court or the progressive public. Do the words of the Constitution mean something, anything? Do the holdings of the Supreme Court mean something, anything? Or are we so mired in hypocrisy that the arguments spin in wildly opposite directions where it’s all reduced to excuses to bolster our policy preferences under the guise of constitutional adherence?
What parent loves one child more than another? What parent loves her natural child more than her adopted child? What parent won’t welcome her child back into the bosom of the Constitution?
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Warning to Readers of Simple Justice,
SHG is brilliant and devilishly sly.
If you try to answer the implicit question put forth in this post–Is there a method of constitutional interpretation that is both principled and capable of producing intellectually consistent results?–you will fail.
No one has done it in the past, and SHG is just fuckin witch ya when he prods you to do the impossible. If you try, he will eviscerate you no matter the path you take. He is like a “black widow” spider in that he lures you in and then eats you alive.
Having been forewarned, don’t bite on SHG’s faux invitation. Holmes had it right when he said, in so many words, that the life of the law is not logic but experience. Remember, if you don’t play, you won’t lose.
All the best.
RGK
Great. Rat me out before it even starts. And don’t think I didn’t notice that you left out “devilishly handsome.”
Thought that went with the Admiral’s hat.
That’s “rakish,” in a swashbuckling sort of way.
“Is there a method of constitutional interpretation that is both principled and capable of producing intellectually consistent results?”
Yes there is, as you well know, but the First Amendment prohibits posting it online.
Rich, I adore you and your hats, but you got it wrong.
It’s not the method of interpretation–not originalist as opposed to some flowing understanding. It’s why the Court intentionally fades from some constitutional issues and accepts cert on others. And the others are clearly regular. Really, the others are things they will not and cannot undo. Can you imagine the mess created by undoing Roe? There are literally a bizillion non-abortion cases based on that legally-flawed decision.
Abortion was a problem at the time. States were making their own rules. The law needed to be defined. It could be the Court saw that it needed to do something, but it surely did it beyond the scope and in a manner repugnant to its mission. It’s mission was self-identified 216 years ago: decide what the Constitution means. That decision went beyond constitutional meaning and created a method of identifying rights that had no concrete basis. Or even a basis in mud–they just made it up.
So why flinch when it comes to guns? Is it because of the possibility of another messy bunch of cases like those that flowed from the abortion decision? Is that sticking to the mission? Isn’t the Second Amendment discussed more now than abortion was in 1973? Is it a smaller issue?
I don’t have the answers. But if the Court is to continue to be the arbiter of constitutionality, it has to address constitutional issues, and not just the easy ones it’s already decided.
In the context of this analogy, I am not sure if the Second Amendment is a constitutional bastard, or just the proverbial red-haired stepchild.
The particular amendment seeking to legitimize very late abortions here may be addressed to an issue of medical sloppiness. I recall a few years ago, there was a case where criminal charges were brought against a doctor who was using post-birth euthanasia to clean up accidental deliveries of viable fetuses during “partial birth abortion” attempts. This proposal is probably intended to provide cover for those types of situations when they occur (i.e., when abortion was the intended point of the procedure, but it failed).
Cool story, bro.
There definitely needs to be a time limit on abortions. Probably shouldn’t be longer than 261 months, except, perhaps, in cases where the fetus hasn’t yet shown itself to be viable.
Twoo hundred and sixty-one months seems reasonable 😉
Why do so many people want to rush gestation anyway?
Abortion is the adopted child, and the 2nd amendment is an orphan. You mention the 4th, but what is that, really, in terms of this metaphor? The fourth is that really cool, smart teenager down the street who might have a great future except for her stupid, crazy parents who constantly abuse, belittle and beat the hell out of her.
I knew someone would go ortho on the 4th.
But what does that make the 5th?
First, magnificently written. Second, and contrary to the wise admonition of Judge Kopf, I’ll bite.
The problem you present is real. These legal fictions once agreed to, were sufficient to be the best, most progressive set of rules for governing in the 18th Century, or whatever time they were amended to the original text. However, this set of fictions were also designed to be quite challenging to change. And, as it happens, that challenge increases as time goes by.
Society, however, and in fact whoever is admitted to society, has changed dramatically since the original myth was agreed to. Some of us, you, me, and I am sure Judge Kopf, and everyone else who reads SJ, know that we have no inalienable rights. There are no God-given rights. There are only the rights, policies, and procedures afforded to us by the laws of man, which are made by legislators, interpreted by the courts, and enforced by shaved apes with shiny badges pinned to their chests.
When these rights, these rules of the road, are no longer sufficient to govern the new reality of life on the ground, introduced by innovation which tends to accelerate over time, it becomes necessary to find a way to change the rules. The legislation is rigid and slow. The courts, it seems, have more space to maneuver.
And so it goes: Single shot, flintlock weapons are no longer the apex of military technology. Modern medicine, microbiology, and imaging technology have replaced a bottle of laudanum, candlelight, and some clean towels.
So what should we do? Should we cling to the original text while we grow old and grey, shaking a feeble fist at the sky and blabbering about originalism? Should we watch our competitors in the global arena surpass us while we are ground into the dust of history like so many societies before us? Or should we grow the fuck up, face the facts, and get on with the business of change?
So you hate the old white man Constitution and want to be Ruler of the Universe under your own woke version of “reality.” Fair enough.
Au contraire, mon ami. There is an objective reality, no matter how hard you wish it were not so.
What if I agreed with you, but told you that your reality isn’t shared by people who haven’t drunk the Kool-Aid, and actual reality won’t make you happy?
I’d say you were getting awfully philosophical for a Thursday morning.
Philosophical SJ is the worst SJ. Thanks, Jake. Next you’ll have him proclaiming morality is relative because reasons again.
I think you’re missing something important. Yes, it seems necessary from time to time to reinvent the compact under which so many diverse people can live in peace in the same land. Yes, legislatures are slow and ossified. Whether that gives license to the courts to remake them on their own is a logical stretch I’ll leave to another time.
Because what you miss is that there’s a third body capable of remaking that compact, and that body is composed of armed men. It has been so throughout history.
And I thought you were going to say amendment or constitutional convention, when enough people shared Jake’s reality. But revolution would work too, although it’s messier.
Oh DaveL, I am well aware of that risk. The only question is, will it be some petty squabble over ‘muh (imaginary) rights!’ as you may imagine, or something far more real? Something like > 2/3rds of the population not having the ability to feed themselves, or their children, whether they be natural or adopted? What sides do you imagine we will be on in the latter scenario? Opposite, or together?
Damn straight. It’s not like they would rather vote for some blithering moron like Trump over the president for women, Hillary.
The bread and circus phase won’t last forever.
That is, of course, a false choice. Because I doubt the ruling class would want to countenance 2/3 of the population going hungry, if those 2/3 maintain their arms. On the other hand, if you achieve everything you wish for and do away with the 2nd Amendment, I’m sure we’ll both be on the same side, armed force having become a luxury reserved to the ruling elite.
Rights are only imaginary when they aren’t backed by force.
Oye. Here we go again. I’m sure (dripping sarcasm) the ruling class is very concerned about the terrifying III% movement, with their size 52 waist surplus fatigues and their AR-15s. How many battalions of Marines, coordinated by radio and backed by CAS do you suppose it will take to wipe out every last one of them? Will it even take one battalion?
Of course, there I go again, forgetting about the real significance of the Battle of Fort Ticonderoga. Benedict Arnold never did get the recognition he deserved from ‘our side’, did he?
This has gone down Jake’s, then Dave’s, rabbit holes far enough. It was funny dumb in a juvenile way to begin with, but this is far enough. Over and out.
So throw out the Constitution and make up whatever shit makes you happy instead? Sounds like a brilliant plan, Jake. What could possibly go wrong?
Where or when did I suggest this? I’ve decided to take all comers this morning.
Well now that we know the Supremes have viable legitimacy issues van we move on to Jesus or what?
Not yet.
Regarding the Second Amendment, I have been given to understand by the woke that New York City is a special case as a bastion of progressivism. I would urge everyone here to view the important attached documentary evidence of what I have been informed that life in New York City would be like absent sensible firearm restrictions:
Look at that bare-handed grip on the barrel of a Browning M1919! Charles Bronson would eat Chuck Norris for breakfast and then ask for a side of Jean Claud Van-Damm to wash him down.
Cannon films are the best films.