GUEST COMMENTARY - In releasing its two decisions last week that reversed Roe and New York City’s concealed firearms ban, the Supreme Court not only performed the judicial act of yelling fire in a crowded room.
The Supreme Court duplicated a 21st century version of the firing on Fort Sumter igniting a cultural and social uncivil war.
These two decisions have now created a “doctrine of inference” in the Court’s determinations. This in turn created a judicial double standard that ironically will make Dred Scott (1857) and Plessey v Ferguson (1896) settled law. And turning decisions back “to the people and their elected representatives” is an unworkable solution that will lead to a condition of permanent legal strife.
Pro-life and pro-gun advocates should be as concerned about these cases as those with diametrically opposed views. About both Roe and concealed carry, nowhere in the Constitution are a woman’s right to choose or self defense as a reason for carrying a concealed weapon explicitly stated or enumerated. Roe inferred from the 14th Amendment that abortion was constitutionally. By torturing and distorting the Second Amendment, the Court inferred a constitutional right for concealed carry.
The Court struck Roe down asserting there was no inferred right in the Constitution to abortion. But stunningly, the Court struck down the New York law because of an inferred right under the 2nd Amendment and “A well regulated militia, being necessary to the security of a free state, the right of the people to bear and carry arms, shall not be infringed” making concealed carry legal. Hence, a doctrine of inference will now pass for judgment in which ideology and politics and not the law take precedence.
What does this mean in practice now that a dual standard exists by which to render judgment and what are the consequences? Suppose, for example, a woman living in a state that bans abortion travels to state in which the procedure is legal and has it performed. According to some state laws, she could be arrested upon return for violating the relevant statute banning abortion. How would the Court rule on that if the case came before it?
In one sense, this contradiction makes Dred Scott relevant. That case concluded that a slave who was taken or escaped to a free state still was the property of its owner and if apprehended must be returned. By extension, a woman seeking an abortion where it was legal, was still subject to the laws of her state of residence. Welcome back to 1857.
Similarly, what are the limits of concealed carry? Can someone carry a firearm in a taxi; a bus; a subway; or an airplane all based on the inherent right of self-defense? Currently, this is unclear and unsettled. However, the Court has opened a Pandora’s box and let loose the worst Harpies from hell that will plague the justice system and inflame an already incendiary situation.
That means Plessey is also back. That decision held segregation in education was constitutional provided it was “separate but equal.” The Court’s decisions now have introduced a “double standard” in judgment. If a case conforms to the justices ideologies and views, it will be settled in that favor. If it does not, then the outcome is assured.
The consequence is that Article III has finally been neutered and fairness and equality in the law at the highest level no longer exist. The precedent was the 2000 presidential election and Gore v Bush. Five Republican appointed justices made George W. Bush the nation’s forty-third president by 532 Florida votes. Now six Republican justices, at least five of whom strongly supported pro-life and pro-gun views, have politicized the court for as long as they sit on it.
In fairness, on these politically charged issues, Democratic appointees on the Court if in the majority almost certainly would have upheld Roe and sustained New York on reverse ideological grounds although a stronger case could be made for limiting the Second Amendment. That amendment has been twisted enough and its preamble of “A well regulated militia” ignored or dismissed.
American society has not been so divided or polarized arguably since 1861. By most measures from mass shootings to increased crime and road and airline rage, recourse to violence is dramatically waxing. Civility in discourse and conduct is disappearing. And America is becoming or has become a less pleasant place to live.
Where this is headed is not entirely predictable. But you can bet both Russian President Vladimir Putin and China’s Xi Jingping are sitting back and watching as America implodes.
(Dr. Harlan Ullman is Senior Advisor at Washington, DC’s Atlantic Council and the prime author of “shock and awe.” His latest book is The Fifth Horseman and the New MAD: How Massive Attacks of Disruption Became the Looming Existential Danger to a Divided Nation and the World at Large. He can be reached on Twitter @harlankullman)