Guns, Abortions, and Rule of Law
The thing about constitutional rights, you see, is that they exist whether or not you like them. This is a source of constant tension in the United States, since very few provisions of the Constitution are free from controversy, but there are two constitutional rights in particular that generate far more than their fair share of rancor.
Supporters of both rights will tell you that each is essential to the functioning of a just and well-ordered society. Detractors of both rights will tell you that allowing each is tantamount to murder, and that these rights must be repealed immediately if we are to live in a civilized society. Both rights were codified in their current forms by the Supreme Court of the United States within the last fifty years, and are thus comparatively new in the history of the country.
As the title may have implied, I’m talking about the right to an abortion before fetal viability and the individual right to bear arms for the purpose of self-defense.
This is important: I’m not here today to take a position on whether either of these rights is a Good Thing or a Bad Thing, or about what (if any) regulation they should be subject to. I’m really, really, really (really really really really) not trying to talk about whether or not abortion is murder — it’s enough for the purpose of this piece that some people think it is. It’s not that I don’t have opinions about abortion or guns — I definitely do, I promise, and maybe I’ll write about them at some later date. But what I really want to talk to you about today is rule of law, and why good citizenship requires you to support both of these rights, even if you hate one or both of them with a burning passion.
[First, a generous helping of quick disclaimers: I’m not an expert in any of these subjects (guns, constitutional law, abortion, lay writing about legal matters). If you want a more nuanced discussion of any of these issues, there’s a wealth of smart writing about these things online. (On that note, if you encounter an error, please let me know.) Also, I’m not a lawyer yet. Even if I was a lawyer, though, I certainly wouldn’t be your lawyer right now, so do not, under any circumstances, take anything I say here as legal advice. That would be exceedingly silly. Finally, none of the things I say here should be taken to represent the opinions of my employer, my law school, any websites I’ve ever written for, or my small dogs. Good or bad, this is just me talking.]
With that out of the way, I want to provide a little bit of background about how the Constitution and the Supreme Court work, and talk (very briefly) about both of the rights in question.
The Constitution, which has been in force since 1789, sets out the foundation for how the United States of America works. It describes the general structure of the country, explains the relationship between the federal government and the governments of the various states, and lays out what sorts of things these governments can and cannot do. In the 227 years since it came into force, it has been amended 27 times. The first ten of those amendments were passed all at once in the “Bill of Rights” of 1791. Each of the 27 amendments has the same force of law as the rest of the document, but they are kept in separate provisions after the main text for ease of reference.
The Constitution is necessarily vague about some of its provisions, which means that its language requires interpretation from time to time. It’s all very well to say that “Congress shall make no law respecting an establishment of religion,” but it’s tough to know what that actually means when you’re trying to figure out if any given law breaks that rule. Thus, in order to understand the specifics of various constitutional rights, you have to look at the relevant cases of the Supreme Court of the United States.
The United States (along with most former English colonies) is a “common law” country, which means that when courts adjudicate disputes, the precedents they set create law that must be followed by later courts. In legal parlance, this principle is called stare decisis, or “to stand by things decided.” Thus, once the Supreme Court of the United States has decided that the Constitution should be interpreted in a certain way, it will ordinarily keep interpreting later cases in the same way, even if the judges on the later Court think the first rule wasn’t very good.
This doesn’t mean that later Courts can’t ever overrule earlier precedent if they think it’s sufficiently unworkable or lousy, but Courts are generally hesitant to overrule willy-nilly, since that undermines the whole structure of the legal system. Regardless, a lower court can’t overrule a higher court, so unless and until the Supreme Court changes its mind about something, all lower courts (both federal and state) are bound by the Supreme Court’s rule.
With that in mind, let’s turn to the rights in question. I’m not going to go into incredible detail here: the specifics of both rights are difficult to lay out with certainty, and plenty of people who are a lot smarter than I am have written about these cases and rights with a lot more expertise than I possibly could. Wikipedia is actually pretty good if you want a decent overview of these cases, and you can find the full text of any of these opinions with just a little bit of Googling.
Neither the right to an abortion before fetal viability nor the individual right to bear arms for the purpose of self-defense is immediately apparent from the text of the Constitution itself. There is no “Abortion Clause” or “Right to Abortion” mentioned anywhere in the Constitution, and, similarly, the text of the Second Amendment, which concerns the right to bear arms, is famously and infuriatingly unclear about exactly what it means. Instead, both rights came about in relatively recent Supreme Court cases which interpreted the text of the Constitution, and now set precedent for how the Constitution must be interpreted from here on out, unless and until the Court changes its mind.
The right to an abortion before fetal viability was first codified by the Supreme Court in 1973 in the landmark case Roe v. Wade. The specific contours of the right have since been explored in several further cases, most importantly in 1992’s Planned Parenthood v. Casey. Reading Roe v. Wade together with Planned Parenthood v. Casey¸ it’s fairly clear that the constitutional right to privacy, as read by the Supreme Court, includes the right for a woman to terminate a pregnancy at some point prior to fetal viability. Although the states can regulate abortions in various ways, they cannot prohibit pre-viability abortions. It’s worth noting here that the right to privacy itself is not explicitly in the Constitution (indeed, the word “privacy” doesn’t ever actually appear within the Constitution’s text), but was found by the Court to exist in the “penumbras” of various other rights.
On the other hand, the individual right to bear arms for the purpose of self-defense was first codified by the Supreme Court in the 2008 case District of Columbia v. Heller. In Heller, the Supreme Court interpreted the Second Amendment to include not only the right to bear arms in order to be part of a militia, but the “individual right to possess and carry weapons in case of confrontation.” Two years later, another case, McDonald v. City of Chicago, clarified that this individual right to bear arms protected against laws from the states, as well as the federal government. These cases, as well as another case from earlier this year (which was decided unanimously!) also clarified that the Second Amendment extended to weapons that were not available in 1791. (What this means, you’ll note, is that all of those snarky articles online that say the Second Amendment only allows you to own a musket are just plain wrong.)
All of these cases were immediately controversial, both within the Court and outside of it, and all of them have endured a great deal of criticism. Roe v. Wade wasn’t quite an edge case, since it was a 7–2 decision, but Planned Parenthood v. Casey is a mess of pluralities and concurrences, and Heller and McDonald were both 5–4 decisions. Any one of these cases is surrounded by commentary that will tell you that the Court was deciding the case based on purely political reasons, or was applying incorrect standards, or was using patently ridiculous methods of constitutional interpretation. I’m not comfortable enough with my constitutional scholarship to take a strong position on any of these allegations, but the fact is that some vocal contingent of people hates each of these cases, and thinks the Supreme Court did a bad job in deciding each of them.
But here’s the thing: that doesn’t matter. It doesn’t matter if Roe or Heller was decided by an activist court, flagrantly abusing its power. It doesn’t matter that many of these cases scraped by with a bare majority. It doesn’t matter if the Court used methods of interpretation that don’t make any sense. All of these cases are the law of the United States. Because of these cases, in the United States, you have the right to get an abortion and you have the right to own a handgun. You have those rights, whether you want them or not, and so (generally) does everybody else, whether you like it or not.
That doesn’t mean, for the record, that governments can’t impose any restrictions on the exercise of those rights: all the cases above explicitly allow for state and federal governments to regulate these rights, up to a point. The exact contours of these rights are thus kind of complicated, but the fact nevertheless remains that the Constitution of the United States, as interpreted by the Supreme Court, guarantees both of these rights.
Maybe that rankles you. Opponents of both of these rights characterize them as leading to violence and death every single day. The Brady Campaign estimates that 89 people die every day in America from gun violence, and the CDC tracked 699,202 American abortions in 2012 alone. Maybe one of those numbers makes you particularly angry — makes you feel that some kind of action must be taken immediately in order to change the state of things. And maybe you’re right.
But we have to be very, very careful about how we try to change these things.
I picked these two rights for a reason — they might be the two most controversial and rage-inducing political conversations in America. Further, given the way party lines fall, I think it’s fair to say that a lot of the folks who stridently defend one right also really hate the other one. Public rhetoric on both of these subjects is a mess, full of vitriolic shouting and all manner of epithets and name-calling. This isn’t really surprising: both of these issues touch on some of the hardest questions facing the human race; questions about life and death and the role of the government and the limits of freedom. For all that the specifics of these conversations often drive me up the wall, therefore, it’s probably good that we have a robust national debate about these topics: these are tough questions.
But hidden in this rhetoric is a nasty train of thought. Opponents of these rights find them so heinous that they think it’s okay to cut corners in order to do something about it. Right now, in the aftermath of the Orlando shootings, my social media feed is filled with people who, with the best of intentions, are talking about either confiscating all guns or conditioning gun ownership on whether or not you’re on the terrorist watch list. Frequently, that same feed is full of (different) people talking about overturning Roe v. Wade, or about advancing laws that abridge a woman’s right to an abortion through various sneaky, backhanded attacks. These proposals play well on TV, (We’re just keeping guns out of the hands of terrorists! We’re just trying to make sure women receive proper medical care!) but they are blatantly unconstitutional. You can’t limit access to a constitutional right based on a secret, racist list. You can’t attack constitutional rights via pretextual regulations that claim to defend women’s health.
But the fact that these proposals are unconstitutional doesn’t stop politicians and citizens from trying to do them anyway. Aggressive abortion restrictions mean that there is now only one abortion clinic in the entire state of North Dakota. The Senate only narrowly voted down a bill that would prevent anyone on the terrorist watch list from buying a gun, and the House, as of this writing, is still considering it.
And let me tell you something: regardless of whatever my feelings are about guns or abortions, this stuff scares me. It scares me because I care much more about rule of law than I care about guns or abortions. And when you start calling for aggressive regulation that flatly contradicts court cases and constitutional amendments, you are not talking about rule of law.
Change at the federal level is slow and tedious. This is partly by design, but it’s still frustrating, so I understand the desire to just hop right on in there and do something rather than worrying about all the procedural niceties. I see Orlando and I, too, want to do whatever it takes to make it never happen again. If you really believe, as many people do, that every abortion is an act of murder, then the CDC’s figures above (almost 700,000 in 2012) feel very much like a pressing emergency. People are dying, we want to scream. People are dying and we’re fighting about amendments and court cases. People are dying and we’re fighting about pieces of paper. Surely we should stop fighting about the pieces of paper and start saving our unborn brothers and sisters! Surely we should stop fighting about the pieces of paper and start saving our brothers and sisters who are gunned down in the streets! People matter more than 200-year-old pieces of paper. If we can save a few lives, surely those pieces of paper don’t matter?
But that’s not how rule of law works. That’s the rule of discretion, the rule of good intentions, the rule of “good people,” and that’s not how we’re supposed to do things. It’s more important, not less, to do things correctly during times of national emergency: to file all the paperwork correctly and dot the Is and cross the Ts and make sure every procedural nicety is properly observed. It’s more important to respect constitutional rights, especially the ones you hate, because respect for the law is all that stands between a semi-functional society and despotism. Because once you start saying “yes, I know the law says that I can’t do this, but this is an emergency,” it’s all over. Once you start shredding those silly little pieces of paper, they stay shredded, and all the Scotch tape in the world isn’t enough to put them back together again.
Because even people with the best of intentions make mistakes, particularly during times of emergency. Remember: the PATRIOT Act passed the Senate in October of 2001 with a vote of 98–1. In times of emergency, it’s easy for power-hungry people to seize the good intentions of the populace and use their willingness to cut corners for their personal gain. They’ll use that good-intentioned willingness to shred inconvenient laws and then they’ll start shredding other laws, laws you like, laws you need. Once you’re willing to restrict one constitutional right because of an emergency, what stops the government from restricting the next constitutional right, and the next one?
Some of you are rolling your eyes right now, and I get it, I really do: all this talk of despots and protecting freedom is pretty tired. I’m not being sarcastic, either: politicians and pundits love to add a little extra pizzazz to their speeches by invoking the principles of Revolution and Freedom, often in contexts that really don’t warrant that level of gravitas. (“Support Jane Smith for County Alderman or the foundations of American democracy will crumble!”) Much of the “blood of tyrants” rhetoric you see on the Internet is mostly about stoking the masturbatory fantasies of obnoxious dystopiaphiles.
But that doesn’t mean there isn’t still a danger. I know that it’s usually pretty easy to think of creeping despotism as an abstract concern, a far-off danger to vaguely worry about rather than any sort of immediate threat. It’s never actually abstract or far-off, but the danger should be particularly obvious today. Because, folks, listen, (and here’s where I get partisan), our next President might very well be Donald J. Trump. We stand a non-zero chance of electing a man who revokes newspapers’ press credentials when he doesn’t like what they say; a man who wants to ban all members of certain religions from immigrating to the United States; a man who wants to expand libel laws to clamp down further on the freedom of the press; a man who thinks a federal judge is not able to adjudicate a case because of his ethnic background. So if you ignore the law in your hurry to do something about gun control, then you’re telling President Trump that you’re willing to override certain constitutional rights that you don’t like. Do you really think he won’t take that as carte blanche to override any constitutional rights that get in his way? Do you really want to give the President and Congress the power to just ignore the law whenever they get scared and then hand that power to Donald Trump? (Or, if you’re a Trump supporter, same question, frankly: do you want to hand that power to Hillary Clinton?)
Because if you’re not comfortable with that, there’s only one way forward. You have to respect and protect all the rights enshrined in the Constitution, and that includes the ones you don’t like, even the ones you think the Supreme Court just made up out of whole cloth. Rule of law means that sometimes bad laws will stay on the books for a while, and people will suffer accordingly. Rule of law means that yes, it is more important to protect constitutional rights you absolutely hate than it is to prevent people from dying. You cannot run a sustainable society if the government only follows the rules when it’s convenient.
So, by all means, change the law. Use your freedom of speech and freedom of association to complain about bad laws. Lobby your Representatives and Senators to enact regulations restricting the exercise of those rights without annihilating them. Protest in the streets about gun violence or abortion or gay marriage or corporate personhood or whatever other artifact of constitutional interpretation makes you angry. Repeal the Second Amendment. But do this the right way. Don’t steamroll over the rule of law in your panicked haste. Don’t restrict women’s access to abortions through transparent, backhanded schemes, and don’t prevent people from buying guns without at least making some allowance for due process. Don’t shout that we need to ban guns or abortion, right now, unless you’re talking about passing a constitutional amendment.
Don’t get so caught up in your righteous fervor that you ignore the law. It’s not enough to reach the right answer — you have to do it in the right way, or your clumsy flailing will knock over some load-bearing pillars on the way to your destination. Don’t get so caught up trying to solve gun violence or abortion or any other right you don’t like that you accidentally tear the whole thing down. Don’t just defend the Constitution when it supports your substantive political goals. A poorly aimed attack on one constitutional right weakens all of them, and sometimes you have to defend the rights you hate in order to maintain the rights you love.
Bill Coberly is a law student and occasional writer-of-things, usually about videogames. You can follow him on Twitter @BillCoberly if you feel particularly compelled to do so. You can find the rest of his writing at https://billcoberly.com/writing/, if for some reason you want to read more of this kind of drivel.
 U.S. Const. amend. 1.
 410 U.S. 113 (1973).
 505 U.S. 833 (1992)
 See Griswold v. Connecticut, 381 U.S. 479 (1965).
 554 U.S. 570 (2008).
 Id. at 592.
 561 U.S. 742 (2010).
 See Caetano v. Massachusetts, 136 S. Ct. 1027 (2016).
 Flora Nicholas, What Does That ‘Right to Bear Arms’ Bit in the Constitution Say Again?, HuffingtonPost.com (Sep. 30, 2012) http://www.huffingtonpost.com/flora-nicholas/what-does-that-right-to-b_b_1701070.html
 See District of Columbia v. Heller, 554 U.S. 570, 636 (2016) (“[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”)
 See The Brady Campaign, Key Gun Violence Statistics, BradyCampaign.org, http://www.bradycampaign.org/key-gun-violence-statistics (last visited June 21, 2016); and Centers for Disease Control and Prevention, Abortion Surveillance — United States, 2012, CDC.gov, http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6410a1.htm?s_cid=ss6410a1_w (last visited June 21, 2016).
 Andrew Flowers, The Problems With Using The Terrorist Watch List To Ban Gun Sales, FiveThirtyEight.com (June 20, 2016) http://fivethirtyeight.com/features/the-problems-with-using-the-terrorist-watch-list-to-ban-gun-sales/ (detailing various proposals to use terrorist watch lists or no-fly lists to restrict gun sales).
 Center for Reproductive Rights, Targeted Regulation of Abortion Providers (TRAP), ReproductiveRights.org (Aug. 28, 2015) http://www.reproductiverights.org/project/targeted-regulation-of-abortion-providers-trap.
 Bill Chappell, Supreme Court Rejects North Dakota’s Bid to Save Strict Abortion Law, NPR.org (Jan. 25, 2016) http://www.npr.org/sections/thetwo-way/2016/01/25/464311731/supreme-court-rejects-north-dakota-s-bid-to-save-strict-abortion-law (detailing various aggressive abortion regulations in North Dakota, some of which were recently overturned by the Supreme Court).
 Deirdre Walsh et al., Sit-in spurs late-night clash on House floor, CNN.com (June 23, 2016) http://www.cnn.com/2016/06/22/politics/john-lewis-sit-in-gun-violence/
 Govtrack.us H.R. 3162 (last visited June 23, 2016) https://www.govtrack.us/congress/votes/107-2001/s313
 Nolan D. McCaskill & Joe Pompeo, Trump: I’m revoking ‘dishonest’ Washington Post’s credentials, Politico.com (June 13, 2016) http://www.politico.com/story/2016/06/trump-washington-post-credentials-224281.
 Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN.com (Dec. 8, 2015), http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/.
 Brian Naylor, Donald Trump Wants To ‘Open Up’ Libel Laws So He Can Sue News Outlets, NPR.org (Mar. 24, 2016) http://www.npr.org/2016/03/24/471762310/donald-trump-wants-to-open-up-libel-laws-so-he-can-sue-news-outlets
 Nina Totenberg, Who is Judge Gonzalo Curiel, The Man Trump Attacked For His Mexican Ancestry?, NPR.org (June 7, 2016) http://www.npr.org/2016/06/07/481140881/who-is-judge-gonzalo-curiel-the-man-trump-attacked-for-his-mexican-ancestry