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Could the Right to Bear Arms Impact the Abortion Debate?

Could the Right to Bear Arms Impact the Abortion Debate?

Constitutional jurisprudence develops at its own unique pace, and despite the inevitable push and pull of political forces, usually balances out in the end.  Take District of Columbia v. Heller for example.  The decision struck down a hand-gun ban in the District of Columbia and became widely recognized as the landmark decision firmly declaring an individual right to bear arms.  But because the case originated in the District the question of whether or not that right applied to the states remained.  That’s the question the McDonald case is set to answer.

McDonald v. Chicago will most likely take the next Second Amendment jurisprudence in its next logical step from Heller and hold that the right to keep and bear arms is an individual right both the state and federal level.  The practical effect of such a ruling will mean that a panoply of current gun control legislation, like hand gun bans and conceal-and-carry permits will be either invalidated or challenged as unconstitutional.  That’s the bad news.

The good news is that might be just fine.

See, presuming the constitutional prognosticators get it right, the right to keep and bear arms will be incorporated to the states via the 14th Amendment.  This is the same mechanism that was used to bring civil rights to the states and to, from a philosophical framework, establish once and for all the superiority of a federal system of governing.  It is an embrace of the notion that states should not be out on their making laws that impinge on individual constitutional freedoms.  Without this understanding we’d have no civil rights jurisprudence.

So an extension of Heller in that sense is not only logical it is necessary because the last thing we should have is case law that suggests some individual rights are more privileged than others.  As a strong advocate for a woman’s right to chose, this is an important issue to nail down.

Despite crowing from gun-rights advocates that Heller and its progeny validate a world view allowing for a fully-loaded citizenry, there is no reason to think this right is unfettered and without limitation.  As we’ve seen from the abortion debate, individual rights can be subject to all sorts of reasonable regulation.  Because you are either for individual rights, or you are not.  States and the federal government can either regulate those rights or they can’t.  The best thing the McDonald decision will do is reinforce the idea that all individual rights are fundamental and that none rank in superiority to the others. 

Don’t just take my word on it.  During oral argument Justice Scalia, author of the majority decision in Heller and the staunchest supporter of gun-rights on the bench, dismissed the arguments from the pro-gun groups that the individual right cannot be subject to government interference (i.e. regulation), and Chief Justice Roberts acknowledged that the Court has yet to really speak to just what exactly the Second Amendment right entails.  Many think that signals a willingness to allow explicit, specific regulation, much the same way abortion rights are regulated.

In the meantime that means the public will have to witness, and pay for, challenges to every kind of gun regulation.  There are already lawsuits in the pipeline challenging conceal-and-carry permits, waiting periods, and background checks.  We’ll have to sort those all out.  But, if the Court decides McDonald the way it should, those who support an equality among individual rights, as well as those who believe that this is a federal nation comprised of many states should embrace the decision.  For those looking to place restriction on that Second Amendment right I would suggest they take a page from the anti-choice book in how to hamstring a personal right and get to work.

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photo courtesy of ~Steve Z~ via Flickr

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112 comments

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8:24PM PDT on Jun 27, 2010

Thanks.

2:33PM PDT on Jun 14, 2010

http://www.care2.com/news/member/714476182/1638277

7:12AM PDT on Mar 27, 2010

I strongly believe that when gun control is put into effect only the lawless will own guns. We own guns, most of which are registered. Those not registered are the ones we inherited and rarely use because of their age. The rest we use for hunting and for predator control. I will continue to support those who will not pressure gun control for law abiding citizens. Those of you who vote opposite of me should live in an extremely rural area for a while and watch what uncontrolled predators do to your livelihood.

2:11PM PDT on Mar 14, 2010

Caroline,
There are laws against people with a history of mental problems from owning or possessing a gun. The fact that they still manage to skirt the law is scary. Law abiding gun owners don't buy guns with the intention of killing someone. I own guns and hope I never have to use them to kill or wound another human being, but when it comes to protecting myself against someone that has no respect for my or my family's life, I would not hesitate to use a gun to defend my life or my family's life. No person that respects other people's lives have anything to fear from law abiding gun owners, because they would try to protect your life as if it were their own.

11:23AM PDT on Mar 14, 2010

Sheila L- It's not that complicated although I admit the article was hard reading. It boils down to this: if it's a right to do one, then it's a right to do the other. If people can carry guns across the board with no interference on the state level, then the same holds true for civil rights and abortion rights. The only thing is, in the process, we have let the nuts have their guns, as many as they want, no restrictions. Scary stuff.

8:35AM PDT on Mar 14, 2010

thanks for the information

3:48AM PST on Mar 13, 2010

good to know,thanks:)

6:09PM PST on Mar 12, 2010

Does the far left hold dominion over logical thinking?

I think this makes it quite clear how there is a logical correlation between how laws for both gun ownership/possession and abortion are so dominated at the state level that a better definition at the national level of gun laws would be much more uniform and would do away with the local variations where some states are more restrictive than others.

As Roe v. Wade is already pretty clearly worded, relative to the existing 2nd Amendment wording for gun rights, the better national empowerment over the states that would result from the clearer definition of gun laws at the national level, because both issues have been handled similarly for so long, would strengthen Roe v. Wade nationally to similarly override the variance of state laws for abortion.

As was mentioned in the article, the authority behind these would be from the 14th Amendment, which was key to civil rights laws as it prevents individual states from doing things like reinstating slavery or preventing minorities from voting because of existing national laws against those practices and because the 14th Amendment prohibits the states from making such laws that would violate federal law.

But I guess the Constitution is just an instrument of the far left, too. It would certainly seem so from the growing secessionist sentiment from the far right.

5:45PM PST on Mar 12, 2010

maybe I just don't understand, these veiled comments might be over my intellect.

5:42PM PST on Mar 12, 2010

this blog represents far left thinking Janice, and it does not make sense to the average normal person. there is no connect here. I guess this is another blackmark on me from care2 writers

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