Two of the major cases awaiting Supreme Court decisions involve opposite sides of the same coin. A New York case involves the power of the states to regulate guns; a Mississippi case involves the power of the states to regulate abortions. Many of those who support the power of the state in one situation oppose it in the other because the politics point in opposite directions.
New York’s gun case involves a construction of the Second Amendment, which guarantees that “the right of the people to keep and bear arms shall not be infringed.” But it guarantees that right in the context of “a well-regulated militia, being necessary to the security of a free state.” The juxtaposition of the right to bear arms with a well-regulated militia strongly suggests that the Constitution’s framers intended the bearing of arms to be “well regulated,” as a militia would be. The Framers could simply have articulated the right as absolute (in the way the First Amendment does) without preceding it by a limiting reason.
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Accordingly, there is a strong constitutional argument that the states — which in colonial times had the power to regulate their militias — maintain the power to regulate gun ownership and use. This view is strengthened by the Tenth Amendment, which relegates to the states or to the people “all the powers not specifically delegated to the United States by the Constitution, nor prohibited by it.”
Thus, the issue of state power to regulate guns under the Second Amendment is squarely before the court. So, too, is the issue of state power to regulate abortions.
Unlike “arms,” abortion is not specifically mentioned in the Constitution. But the Fourth Amendment does guarantee “the right of the people to be secure in their persons.” This surely has some implication for the right of women to decide whether or not to bear a child. The state may well have the power to regulate abortion to some degree but, as with guns, the issue before the Supreme Court is how much power does the state have?
Here the Ninth Amendment comes into play. It says that “the enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The “people” include pregnant women, and the question is whether the Ninth Amendment, taken together with the Fourth Amendment, accords pregnant women some degree of control over their “persons.” Although the Fourth Amendment does not mention the word “privacy,” it uses a word that commonly included what we now regard as the right of privacy — namely, “security.”
Most Americans believe that a woman should have control over her pregnant body during the early months of her pregnancy but not during the late months. They recognize that a fetus is not like an appendix, which can be removed simply at the will of the person and their doctor. The fetus is a something; even at its earliest stage, it is a potential life.
When exactly it becomes an actual life, subject to legal protection against abortion, is a complex matter of science, morality and religion. For most Americans, it is a matter of degree — but for some, on both sides of the political spectrum, it is not. For deeply religious Catholics and evangelicals, life begins at conception, and there is no matter of degree involved; they regard the earliest fetus as no different than a child. For some advocates of a woman’s right to choose, that choice extends even to the end of pregnancy; they regard the fetus as constitutionally indistinguishable from an appendix which a woman can simply chose to remove at any stage.
In the abortion case before the Supreme Court, the issue presented is whether a Mississippi statute which prohibits abortion after 15 weeks is constitutional if a state decides on that cutoff. The issue before the court, therefore, is not whether Roe v. Wade should be overruled but whether it should be limited to the first 15 weeks of pregnancy.
If the leaked draft opinion by Justice Samuel Alito turns out to be the final majority decision, the court would have reached out to decide an issue not properly before it. Such a decision would constitute judicial activism and would violate the constitutional limitations on the courts to decide only “cases” and “controversies” that are properly before them. Courts, including the Supreme Court, have no constitutional authority to render advisory opinions on issues that are not necessary to decide in order to resolve the specific case.
In these two controversial cases, the current court is likely to decide in favor of more state power to regulate abortions than guns. This may reflect the political leanings of the justices as much as neutral constitutional principles regarding the allocation of power and rights among the states, federal government, courts and people.
Alan Dershowitz, professor emeritus for Harvard Law School, is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Color-Blind Equality in an Age of Identity Politics.” Follow him on Twitter @AlanDersh.