The Supreme Court building in Washington, D.C.
The Supreme Court building in Washington, D.C. / Stephen Gutowski

Analysis: What the Supreme Court Draft Striking Down Roe v Wade Could Mean for its Gun Case [Member Exclusive]

The recently leaked draft of the majority opinion in the Supreme Court’s abortion case may provide insight into what’s coming in its gun case.

Last week, Politico published the first draft of a proposed majority opinion in Dobbs v. Jackson Women’s Health Organization. The rare leak shows at least five justices had sided with Mississippi in upholding the state’s ban on abortions during preliminary deliberations. The first draft, written by Justice Samuel Alito, explicitly overturns the Roe v. Wade precedent.

The Dobbs opinion discusses how the Court used the Fourteenth Amendment to incorporate Second Amendment protections to the states. But Alito goes out of his way to say the decision impacts no other issues.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

However, the reasoning Alito relies on in Dobbs is one that the Court could also use to strike down New York’s restrictive gun-carry law in NYSRPA v. Bruen. His underlying argument for why abortion is not a constitutionally-protected right is one that activists have long said proves keeping and bearing arms is.

According to Alito, history and tradition undermine the case for abortion protections. He spends much of the opinion laying out the argument. He goes so far as to list examples of abortion bans in effect during the founding era.

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion,” Alito wrote. “Zero. None. No state constitutional provision had recognized such a right.”

He said the presence of abortion bans and lack of protections for the procedure during the country’s early days, coupled with the lack of explicit mention of it in the Constitution, implies it should not be recognized as a protected right without a new amendment.

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito wrote.

Gun-rights advocates have spent over a decade building up a strikingly similar legal argument. In addition to the advantage of having the right to keep and bear arms explicitly written into the text of the Bill of Rights, they’ve argued history and tradition point to only limited restrictions on firearms. They’ve said an examination of American history and tradition not only protects gun rights but also undermines many of the highest-profile gun restrictions states have implemented.

That’s because many of the most disputed gun restrictions trace their origins to the 20th Century, the same period Alito argues abortion protections originate. Policies like “assault weapons” bans or magazine size restrictions date to that time. As does the New York gun-carry permitting law the court is currently reviewing in Bruen.

If they take the same dim view of the New York law’s history and tradition, it would likely mean an end to “may issue” style permitting systems where government officials are given broad leeway to deny applicants if they believe they don’t have a “good reason” to carry a concealed gun.

Perhaps more importantly, though, the Court could establish a new standard of review for all future Second Amendment cases as well. Gun-rights advocates have long complained lower courts are effectively ignoring the Supreme Court’s precedent in Heller v. D.C. when they uphold restrictive gun laws. They want gun cases to be decided on whether restrictions fit with the text of the Second Amendment as well as the history and tradition of gun laws in the United States.

The justices asked several times about what standard it should implement during oral arguments in Bruen. Several of them seemed to favor the text, history, and tradition standard, which counts Justice Brett Kavanaugh as one of its originators.

“Some of your amici have asked us to provide further guidance to lower courts in cases beyond your own,” Justice Neil Gorsuch said. “They’ve pointed out that some lower courts have refused to apply the history test, for example, and said they will not extend Heller outside the home until this Court does. Other courts have applied intermediate scrutiny and variations of that. Some have suggested that strict scrutiny would be appropriate to treat this right comparably to other rights under our modern tiers of scrutiny.”

“I think we would start with the idea that text, history, and tradition is an appropriate way to deal with this right,” Paul Clement, who represented the plaintiffs, said in response. “That’s what the Court said in Heller.”

The legal reasoning isn’t the only thing about the leaked draft opinion in Dobbs that signals the Court may be equally aggressive in Bruen. There’s also just the fact the Court appears poised to take as big of a step as overturning Roe v. Wade. It there are five votes to do that, there may be five votes to start expanding the Court’s case law on the Second Amendment.

Chief Justice John Roberts has long favored a more incremental approach to moving the court’s positions on significant issues. Politico reported he wasn’t one of the judges who voted for overturning Roe, and the opinion being assigned to Alito provides further evidence for the idea. That means the other conservatives on the Court likely bucked Roberts’s preference and decided on the more aggressive path.

That’s another reason to think the Court might not only overturn New York’s gun-carry law but go even further. Striking down all permitting requirements still seems unlikely, and Roberts was the only one in oral arguments who had a question approaching that idea. But it isn’t difficult to see the Court become much more active in Second Amendment litigation moving forward.

The Supreme Court hasn’t issued a major Second Amendment ruling in 12 years. Just taking on more than one case a decade would be a significant change.

Of course, the decision to take Bruen was surprising in the first place for that reason. The Court initially took a much less consequential case against New York dealing with gun transportation restrictions. But it ultimately went nowhere because New York changed their law in a successful attempt to moot the case after it was accepted.

Then a slate of cases dealing with most of the significant live issues surrounding the Second Amendment was denied by the Court without explanation.

So, when the Court decided to directly weigh in on whether the Second Amendment guarantees a right to carry a gun outside the home, it represented a reversal. It implied a potential change of heart after the makeup of the Court also changed thanks to the addition of Amy Coney Barrett.

That already provided good reason to believe the Court may be moving to broaden its take on Second Amendment protections. Now the leaked Dobbs opinion offers even more. The Supreme Court is difficult to read from the outside and has proved susceptible to political pressure in the past, though. There are no guarantees when it comes to predicting what the Court might do.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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