High court crossfire looms on guns, abortion

"Armed with the power of declaring laws to be unconstitutional, the American magistrate perpetually interferes in political affairs. Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate ... ."

So wrote Alexis de Tocqueville in "Democracy in America" nearly two centuries ago. At least in his more conservative moods, the famed French political philosopher thought this meddling by American courts was mostly a good thing.

"When the American [public] is intoxicated by passion, or carried away by the impetuosity of its ideas, it is checked ... by the ... influence of its legal counsellors," Tocqueville added. "Their aristocratic propensities [are a balance] to its democratic instincts, their superstitious attachment for what is antique to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience."

At least since the Dred Scott decision (1857) helped incite the Civil War, it's been debatable how reliably American courts have calmed rather than fueled the nation's political storms. But judges' perpetual presence near the center of the maelstrom persists.

We're about to witness an unusually vivid and timely demonstration.

Within the next few weeks, the U.S. Supreme Court will deliver its final decision on an abortion case in which a preliminary draft ruling overturning Roe v. Wade was leaked in early May. With the potential to bring the ever-smoldering politics of abortion to volcanic life across the country, the case of Dobbs v. Jackson Women's Health Organization has already set off a furious national debate. It only recently quieted a little when a shocking burst of mass shootings inspired an equally deafening crossfire of long-standing recriminations about gun laws.

And before the Supreme Court adjourns for the summer, it also will rule in a potentially explosive gun rights case, deciding to what extent states can restrict the right to carry weapons under the Second Amendment.

These two controversies are likely to inspire some curious contortions — both among the high court justices and among their critics and admirers — concerning the perpetual question for the court: Exactly how forcefully should the judicial power "interfere" with the nation's political affairs?

When the nature and extent of rights guaranteed by the Constitution in a given sphere are less than entirely clear, should the court defer to lawmakers in Congress or state governments to decide complex moral and policy disputes through political processes?

Or should justices trust legal reasoning to define and defend fundamental rights, even if it frustrates the democratic will of the body politic?

In the abortion case, it is chiefly the political left — progressive abortion rights supporters — who want the court to continue interfering and checking political passions. Since sweeping aside 50 state laws in its 1973 Roe v. Wade decision, the Supreme Court has held that the Constitution's implied right to privacy includes a woman's right to an abortion until fetal viability, the point when a fetus could survive outside the womb, about six months after conception.

Conservative abortion opponents, meanwhile, generally argue that the court should liberate democratic instincts where abortion is concerned, and give state legislatures more power to restrict abortion according to the majority values of their communities.

On guns, everybody switches position.

In the case the court will soon decide, New York State Rifle & Pistol Association v. Bruen, the justices will determine whether New York's strict system for approving or (mostly) denying carry permits for gun owners violates the "right ... to keep and bear arms" protected by the Constitution's Second Amendment.

In this case, it's conservative gun rights advocates who want the court to boldly defend a fundamental right against the democratic passions of elected lawmakers. And it's liberal gun control supporters who believe majorities should be free to replace outdated 18th century realities with gun regulations adapted to modern life and local conditions.

Each side, of course, denigrates the fundamental right the other side cherishes. Second Amendment champions note that the right "to keep and bear arms" has one notable advantage over the right to abortion — namely, that it is actually mentioned in the Constitution.

The other side points out that the actual text of the Second Amendment makes clear the right to weapons initially had much to do with mustering "well-regulated militia" for frontier communities.

Some ambiguity exists about how far every constitutional right extends — from the free exercise of religion to protections against unreasonable searches or self-incrimination. But the rights to guns and to abortion really are murkier than most.

An unwanted pregnancy produces a wholly unique and tragic collision of rights. Two human destinies are at stake, while basic sovereignty over one's body seems self-evident, if any right is.

On guns, it would seem a Constitution declaring that "the right of the people to keep and bear arms shall not be infringed" must confer some kind and degree of gun rights to people. And yet, the Second Amendment's unusual "militia" rationale reflects a spirit of caution about weaponry as old as our republic.

One thing that worried Tocqueville was that the prominence of courts in American life meant "all parties ... borrow the ideas, and even the language, usual in judicial proceedings in their daily controversies." We Americans search for rigid rules, legalistic rights and unalterable precedents to answer elusive moral and social questions that actually call for experimentation, local variations, compromise, evolution and even collective gut feeling — the stuff of living democracy.

Abortion laws were being liberalized in numerous states back in the early 1970s, when the Roe court "settled" the legal question nationwide and inflicted unending bitterness on America's political life. In Europe, the issue has been mostly settled politically, with abortion generally legal early in pregnancy, but more restricted later on than in the U.S.

Somewhat similarly, political debates over gun laws have taken many twists over many years, including liberalization of carry-permit processes in scores of states (Minnesota included). It's far from clear that the nation would benefit from the court issuing a sweeping new expansion of the Second Amendment that does for gun rights what Roe did for abortion.

In its much discussed 2008 District of Columbia v. Heller decision, the court ruled for the first time that the Second Amendment guarantees an individual law-abiding American a basic right to possess a practical self-defense firearm. And as a pair of clerks who worked on the opposing opinions in that case wrote in a commentary reprinted on these pages last week, the Heller ruling is often misused. Both gun rights and gun control advocates speak as if the court prohibited virtually all regulation of gun ownership.

In fact, conservative icon Justice Antonin Scalia wrote in Heller: "[T]he right secured by the Second Amendment is not unlimited ... not a right to keep and carry any weapon whatsoever in any manner whatsoever ... ." He endorsed gun prohibitions for felons and the mentally ill, near schools or other sensitive places, regulations on gun sales and more.

We must hope for more of that "not unlimited" spirit of judicial restraint from the court this month — on abortion as well as guns. And then for more willingness among Americans to work toward what democratic compromises we can find on our most difficult disputes.