Two rulings last week by the U.S. Supreme Court – one overturning a 50-year-old New York handgun licensing law, the other overturning its 1973 Roe v. Wade decision – were certainly about gun control and abortion. But they also had this important takeaway: No matter where one stands on the substance of the issues, for all of the intimidations and blandishments, ours remains a nation of laws, not mob rule.
The Supreme Court struck down a New York law that required anyone who wanted to carry a concealed handgun in public to demonstrate “proper cause.” The law required a person to show that they were dealing with an especially dangerous circumstance, not seeking to conceal-carry out of a general desire for self-defense. Writing on behalf of the 6-3 majority, Justice Clarence Thomas asserted that the Second Amendment to the U.S. Constitution does not permit this requirement. It establishes a right to keep and bear arms, wrote Justice Thomas, and “there is no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”
That decision came only weeks after a gunman killed 10 people in a Buffalo, New York supermarket, and less than a month after another gunman killed 21 people at an elementary school in Uvalde, Texas. Tens of thousands of people protested in cities across the U.S. to demand stricter gun control laws, and a bi-partisan gun control bill – albeit a rehash of existing legislation – was just signed into law by President Joe Biden.
Yet despite current events, the Justices went about their business. They concluded that, outcry notwithstanding, the Constitution required an outcome that went in the opposite direction of prevailing popular opinion. Not only that, but as a constitutional ruling, the decision supersedes anything Congress or state governments come up with on the issue.
The abortion decision, Dobbs v Jackson Women’s Health Organization, is even more to the point.
A draft opinion, written by Justice Samuel Alito, was leaked eight weeks ago, and it signaled that the Court was primed to overturn Roe v Wade. While the court found in 1973 that the Constitution protects the personal decision to have an abortion under the Right to Privacy, Alito and a majority of his fellow Justices have indicated that they think the rationale was wrong. Alito turned decision-making on the issue over to the states, saying nothing about abortions as a policy or moral issue.
Many hypothesized that the leaker’s purpose was to mobilize public opinion, hoping intimidation would coerce the Justices into changing their minds about the ruling. Indeed, the reaction to the information in the leak was deafening, and that in and of itself was extraordinary: pressuring legislators or a president on matters of policy are fundamental paths of recourse in a democracy, but applying pressure on judges to get them to adopt a particular interpretation of the law is something else.
Despite the uproar, the final opinion was not all that different from the leaked draft. To their credit, it would appear that none of the Justices changed their minds.