SCOTUS rulings on Second Amendment, and then on Roe v Wade, pose serious questions as to which personal individual rights are really “fundamental”

protesters near SCOTUS walking back to Union Station, 2022-5

Okay, when “Bill” goes away for grocery shopping, the mice play.  The news on Roe popped onto my phone this morning as I stood in line at a Harris Teeter in Arlington VA.

Let’s back up and talk about the Bruen case in New York, ruled yesterday 6-3. The official name is “NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW “YORK STATE POLICE, ET AL”, with official opinion link here

New York state apparently is not allowed to maintain its policy as a “may issue” (vs. “shall issue”) state when citizens apply for licenses to carry various weapons.  Typically, that may mean that the applicant needs a more specific reason to need a gun than just self (or familial or property) defense, which is often the standard in Europe (like New York, densely populated).  That means the individual has more personal risk from targeted violence, for example, which affects eir personal agency.

Hoeg Law discusses the opinion in a two-hour video, along with discussing analysis offered by Vox and by Fox News.  Understand at first, in the past I’ve talked about DC v. Heller (2008) which is supposed to deal with the “militia” question.

I’ll walk back on a couple of points, which also matter to Roe (later in this post).

That is, according to the opinion, “fundamental rights” pre-exist and are not granted by government or even by the Constitution (the Bill of Rights, and certain other amendments, especially the 14th Amendment with its incorporation doctrine).

But pre-existing fundamental rights are substantiated by a reading of history, which may go back to civilization much less technology-related than ours.  It is reasonable that self-defense as a fundamental right could be seen in American history, especially with its history of settling new lands (however problematic when it comes to other issues, like indigenous peoples – or to the history of slavery). 

The opportunity for individual self-defense certainly reinforces personal, individual agency.  I can relate an anecdote. In November 2016 I had volunteered to deliver meals for Food and Friends and had done so earlier only in northern Virginia.  When I found out that this time I might have to be willing to drive in SE Washington DC’s most dangerous neighborhoods, I backed out.  Maybe personally cowardly.  But if I owned a personal weapon and had been trained to use one properly and safely, I would not have had to back out.  Frankly, I don’t see becoming a “victim” of extra-legal violence when serving others as particularly honorable, deserving a funeral procession. So I have to be very strict about the kinds of risks I will take.

My own history, with my books and blogs, has talked a lot about many fundamental rights, especially freedom of speech – which I say does not automatically guarantee what Brian Stelter calls “freedom of reach” (SCOTUS has waffled on that point, as with COPA), and the “right to privacy”, which indeed comes from substantive due process (more later in this post) which I see as an individual right (as opposed to  group-enabled rights implied by the use of protected classes).  I did not (in any of the three DADT books or in my “Our Fundamental Rights” booklet specifically talk about the Second Amendment as an individual right.  I should have, and would do so if rewriting.  I can remember a Libertarian Party of Virginia conclave in Richmond on a late spring weekend in 1995 where it was a big issue.  I should have taken it more seriously then.  But I had come at this from another direction, gays in the military, the draft, the limits of privacy – I never got around to thinking about how critical individual self-defense can be for personal agency and integrity.

Hoeg, in his video, gives some discussion to the Supreme Court’s idea of “originalism” and “textualism”.  It is turning into a distinction without a difference.

I would take the discussion about “fundamental rights’ in a new direction, and try to apply the idea of “pre-existing rights” and due-process.  The universe, after all, is very inequitable.  “You” don’t have a fundamental right to be born without disability, or to a family of means, or to be born white, or even cis-gender straight.  That’s because the laws of physics make this impossible. That’s like claiming the right to fly like (Smallville) superman (or like an intelligent crow sitting on the railing on the balcony of your high-rise condo and watching you work on your computer – I have such a “friend” now).  Once a society has “rule of law” and some attempt at democracy (the West, essentially), it then becomes reasonable to postulate that some notions like right of privacy can exist if you can presume fundamental due process (below).  Clearly, in today’s (Putin’s) Russia or North Korea or (to a somewhat lesser extent) China this notion fails.  I have some of this sketched on my old “doaskdotell” site and it will be revised soon.

What is the effect on current efforts, even the recent agreement to a compromise on gun control in Congress?  

The New York Times has a summary by various writers, apparently published about the same time as the opinion.  Essentially, the SCOTUS opinion would not seem to affect control of weapons in specific places or venues (like airplanes), or the banning of people with certain signs of mental illness (red flag laws), or the personal possession of weapons of mass destruction (answering a Tim Pool tweet, I don’t think the opinion means you can possess nukes). Legislation affecting some kinds of military weapons (AR-15’s, etc) would seem permissible.  What isn’t permissible is questioning your need for individual self-defense.  (The House just passed its gun safety law 234-193.)

 Now, that brings me to the shocker for today, the overturn of Roe v. Wade (so predicted by Jeffrey Toobin on CNN since Barrett’s appointment), “DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL.” ,pdf link.  

It may be trite to say that as an elderly gay man who has never experienced coitus (or even meaningful arousal – bluntness is necessary now) with a female and never will (well, except in my “Second Epiphany” screenplay with the help of an identity-switching “crisis actor”), this opinion cannot affect me directly.  But the irony, of course, comes from the reasoning used to undermine previous rulings (specially Lawrence v Texas and Obergefell) affecting the freedom of individuals to have and benefit from intimate adult same-sex relationships that physically happen in private but which putatively do affect culture as a whole.  (It is important to recall that the AIDS epidemic raised questions about possibly unpredictable public health consequences of some gay conduct (covered previously, and in Chapter 3 of my own DADT-1 book and a public issue in Texas in 1983 with a proposed draconian state law 2138), and raised again with monkeypox (although this will spread among heterosexuals too with similar intimacies in public raves); ironically, however COVID19 seemed to hit hardest people in socially conventional large families. In general, public health, war, climate change and space weather can all pose issues that invade individual liberty in ways we haven’t seriously considered before, why we focus on ‘bathroom bills’ — may not have the luxury?)

I have to add, it is disturbing that some “Republicans” seem so  focused (and smug) on a narrow swath of the right to life concept, when there is a much bigger practical concern (the elderly, the severely disabled, and so on).  In a few states they have implemented vigilante laws, or proposed ideas like making it a crime for a state resident to contact a service online to seek assistance in another state. This could present a serious downstream liability situation for social media and even webhosts down the road (given, for example, how Section 230 plays out).

Alito has written that the effect of today’s opinion, undermining stare decisis, applies only to abortion, and has noted that no other issue has affected the right to take away the life of a human being, interpreting any entity after fertilization (maybe implantation) as a human being.  You might try to twist his reasoning around and say that some uses of guns for self-defense needlessly take away human life.  At least that is a first reaction.

But Justice Clarence Thomas wrote some comments in his concurring opinion, as explained by Adam Edelman at NBC News.  The long headline is “Thomas wants the Supreme Court to overturn landmark rulings that legalized contraception, same-sex marriage; In a concurring opinion to the Supreme Court’s ruling to overturn Roe v. Wade, the conservative jurist called on the court to overrule a trio of watershed civil rights rulings, writing,’” We have a duty to ‘correct the error’ established in those precedents.”   Thomas is “willing” to wait for another case, he says.  (Well, why did the Court have to overturn Roe v Wade at all;  it could have upheld Mississippi itself). This could work its way down to contraception (Griswold – 1962; and there are radicals who believe that sperm itself has humanity!)

The issue is “substantive due process”.  Thomas calls this an “oxymoron”. That doctrine has generally recognized liberty or property interests (as in the 14th Amendment) in contemporary terms.  But as we saw (ironically) with the 2nd amendment case, Thomas (and to a large extend other justices) believe this is validated only over a longer period of American history.  Same-sex relations have not been so recognized until the past few decades, partly because in the past homosexuality was seen as undermining the incentive for most normal men to marry and have and raise children (and post WWII had become fodder for McCarthyism).  That’s a pretty complicated thing to explore.  My three DADT books make a point of organizing all of this.  You could say that “substantive due process” means you can’t pass a law that intrudes into a personal space that cannot be enforced with normal procedures under the rule of law.  (Think how that applies to sodomy laws.)   Without substantive due process, rights would be delegated to groups, which critical theory embraces.  That would follow from the equal protection clause.  I am not a big fan of deriving rights through groups (implies intersectionality). I could say that an underlying theme of all my books is what individual rights you protect with substantive due process (as opposed to group equal protection and the protected marginalized minority idea) and what those who feel personally challenged should do to leverage the idea.

Tim Pool weighed in quickly today:

Also The Hill-Rising weighs in:

I’ll close this long post with trailers for two films deal with Roe.

One is “Reversing Roe” (2018), directed by Ricki Stern and Anne Sundberg, from Lincoln Square Productions and Netflix.  ·

The other is “AKA Jane Roe”(2020), directed by Nick Sweeney, from FX Channel, about Norma Mc Corvey, the original plaintiff in Roe v Wade, who finally turned against her own prior activism later in life when she had cancer.

(Posted: Friday, June 24, 2022 at 4 PM EDT by John W. Boushka)

Additional Update: I made an 8 minute video today (June 29) about how I assess the concepts of fundamental rights, standard of review (like rational basis, heightened scrutiny), personhood determination, and so on. I give a link to my script.

Script of my own take on Alito’s reasoning

(End of Update).

Author: Jboushka

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5 thoughts on “SCOTUS rulings on Second Amendment, and then on Roe v Wade, pose serious questions as to which personal individual rights are really “fundamental””

  1. Hoeg has a new video “Understanding Dobbs” on the abortion ruling. https://www.youtube.com/watch?v=hfU8hMp2dug Again, the big view seems to be: the Second Amendment (when combined with Heller, 2008) “explicitly” confers a pre-existing right for an individual to bear arms (it doesn’t “create” the right). But there is no comparable explicit “right to privacy” stated anywhere in the Constitution or amendments, so to be seen as a liberty interest under the 14th Amendment there must be sufficient historical tradition (maybe common law included?) to validate the right. (Is Stonewall in 1969 part of that history?) When there is such history, maybe “substantive due process” does exist, but to say that it comes from the 9th and 10th amendment penumbra is somehow an oxymoron because there is no specific subject matter to form the purported right. (Thomas). Chapter 1 of my first DADT book (1997, then 2000 POD with iUniverse) proposes an explicit “right to privacy amendment” with thirteen sections. Some of these are overlaid by history now (gay marriage, and COPA particularly) since the writing of the book (a problem with older books!) The prelude to the stating of the proposed amendment in my book, however, doesn’t talk about substantive due process explicitly, but it does enumerate many perils that private individual citizens can walk into. The Introduction of the first book, insisting on policy based on personal responsibility and personal agency as libertarians understand these, does seem to pose the idea that most policies should focus on individualized (“substantive”) due process, rather than depending on leveraging a person’s belonging to a (marginalized) protected class (leading to depending on ideologies like intersectionality). I also talk about substantive due process in Chapter 3 (“Bill of Rights 2”) of the DADT-2 book (2002). These have been available free for online browsing for two decades. It seems I am admitting to the need to enumerate rights more explicitly (the penumbra rights 9 and 10 notwithstanding) by proposing the amendment. Who knows, maybe members of SCOTUS have come across my stuff over the years and it stuck? (“ha ha ha”).

  2. Visitors should simply visit the Wikipedia page on Substantive Due Process https://en.wikipedia.org/wiki/Substantive_due_process#:~:text=Substantive%20due%20process%20is%20a,elsewhere%20in%20the%20US%20Constitution. and pay particular heed to the “Conceptual Basics” section. The last paragraph of this section, connecting its definition of “fundamental right” to the “rational basis test” (when a purported right is not defined as “fundamental”, which may well be the case for a “right of privacy”) and “compelling state interest” when the right is fundamental (https://en.wikipedia.org/wiki/Fundamental_rights#United_States.), is particularly relevant. With abortion, the “compelling state interest” would be the personhood of the unborn child, and the difficulty in science and philosophy is determining where that starts. Alito and some other justices may be correct in maintaining that the Constitution cannot define this, and that only legislatures (the US Congress, or the state legislatures) may do so. But that would not deny the idea of applying “substantive due process” for other issues like gay marriage or even privacy for intimacy among consenting adults. So it doesn’t seem to me at the moment that Thomas’s idea that the notion is an “oxymoron” makes sense. I am a bit concerned, however, for the prospect that for (adult) male homosexual relations, the public health implications known from the (1980s) past (and possibly re-emerging?) could become a dangerous “sleeping dog” if the issue comes up again (like if a “red” state tries to reimpose a sodomy law and overcome Lawrence v Texas (2003)). The public has remained asleep on this issue.

  3. Fareed Zakaria, on June 26, discusses both SCOTUS opinions and its political radicalism, but pushes back even on the logic of Heller and the 2nd Amendment. Zakaria notes that in colonial times every white male was required to own and maintain a weapon and be part of a local militia. It sounds almost like conscription. https://www.youtube.com/watch?v=_rLiPQ-bnX0

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