What the U.S. Supreme Court is doing
With its recent rulings on gun rights, abortion rights and climate change, the U.S. Supreme Court is sending a clear message to all government officials that the Constitution means what it says.
This has unnerved a lot of people who have grown accustomed to the idea of a “living Constitution” that evolves through landmark Supreme Court decisions in carefully chosen “test cases.” Some of that imaginative legal work is now history.
No longer will federal courts weigh how much a state gun regulation “burdens a protected interest” compared to how much it is “related to the achievement of an important governmental interest.” No longer will federal judges ponder whether an abortion law presents a “due” or “undue” burden. No longer will a federal agency be able to grant itself unlimited power to determine the country’s energy future.
The theme of the decisions seems to be: We’re sending policy decisions back to the constitutionally designated government bodies that answer to the voters, while protecting explicit constitutional rights from government infringement.
In the gun-rights case, New York State Rifle & Pistol Association v. Bruen, the majority opinion by Justice Clarence Thomas made clear that states may not treat Second Amendment rights as discretionary privileges. The case was a challenge to New York’s law banning licensed gun owners from carrying a firearm outside their home unless they could prove that “proper cause exists” for doing so. New York’s law said a “generalized interest in self-defense” wasn’t enough.
But it is enough, the Supreme Court said, citing the “normal and ordinary meaning” of the Second Amendment’s language. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” Thomas wrote.
The court put the burden on the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Quoting its 2008 decision in District of Columbia v. Heller, the court wrote, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”
That goes far to explain the high court’s objection to Roe v.
Wade and Planned Parenthood v. Casey, the two abortion-rights decisions overruled in Dobbs v. Jackson Women’s Health Organization. The people of the United States didn’t adopt a right to abortion; instead, it was interpreted into existence by the Supreme Court in 1973. Roe invented a standard based on trimesters, and two decades later, Casey threw out that standard in favor of barring laws that created an “undue burden.”
“Abortion presents a profound moral question,” Justice Samuel Alito wrote for the court, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”