Rights

If the Supreme Court shoots down Roe v. Wade, there could be an all-out assault on gay rights

After decades of longing for the U.S. Supreme Court to overturn the Roe v. Wade ruling of 1973, anti-abortion zealots may finally get their wish. The High Court, on December 1, began hearing oral arguments in Dobbs v. Jackson Women’s Health Organization a case that is examining the constitutionality of a highly restrictive anti-abortion law in Mississippi. If the Court upholds the Mississippi law, overturns Roe and assaults abortion rights, there is every reason to believe that gay rights won’t be far behind.

That is not to say that Dobbs deals with gay rights per se. Dobbs is about abortion specifically, and defenders of the Mississippi law are arguing that the Roe decision was an attack on states’ rights — that the state government in Mississippi, not the federal government, should be able to decide how it governs and regulates abortion. But legal experts, including Laurence Tribe, have pointed out that if the High Court doesn’t respect abortion as a national right, it won’t respect gay liberties as a national right either.

Although Democrats have won the popular vote in seven of the United States’ last eight presidential elections, the Supreme Court now has six justices appointed by Republican presidents and only three justices nominated by Democratic presidents. This is the most hard-right Supreme Court in generations, and the Dobbs case is almost certain to end with Roe being overturned — or at the very least, gutted. Even if Chief Justice John Roberts votes with the three Democratic nominees, the end of Roe appears likely.

Overturning Roe will not amount to a national abortion ban, but rather, would allow abortion rights to be decided on a state-by-state basis. So post-Roe, abortion would likely be banned in a long list of red states while remaining legal in blue states like California, Oregon and Massachusetts. And that would affect gay rights because the Christian Right and its lawyers would argue that if a 48-year-old precedent like Roe can be overturned, there is no reason why gay rights rulings should not be overturned as well.

In fact, Tribe, co-founder of the American Constitution Society, specifically discussed gay rights during a December 1 appearance on Lawrence O’Donnell’s MSNBC show, explaining why the end of Roe will lead to a variety of assaults on civil liberties.

Tribe — whose students, over the years, have ranged from President Barack Obama to U.S. Attorney General Merrick Garland to Chief Justice Roberts — told O’Donnell, “All along, we have expanded rights. Brown v. Broad expanded rights beyond what Plessy had said. Lawrence v. Texas expanded rights for LGBT people. We’ve expanded. But if we do now what the Court is poised to do, it will be the first turnaround. We will have lost our virginity basically. And once we do it this time, it’s going to be a lot easier to do it next time with contraception, with same-sex marriage, with gun rights, for example. Rights that conservatives like, rights that liberals like. It’s always been a matter of expanding rights; this will be the first reversal of that trend.”

Lawrence v. Texas, a 2003 Supreme Court ruling, was a major victory for gay rights because it struck down a sodomy law in Texas as unconstitutional — and by doing so, the Court struck down sodomy laws in other states as well. Hated by the Christian Right, Lawrence was, like Roe, what legal scholars call a right-to-privacy decision. Far-right social conservatives believe there is no right to privacy in the U.S. Constitution, while liberal and progressive groups like the ACLU and People for the American Way — as well as some right-wing libertarians such as former Supreme Court Justice Anthony Kennedy — believe that there is.

The right-to-privacy argument also prevailed in Obergefell v. Hodges, the 2015 High Court ruling that legalized same-sex marriage nationwide. Just as Roe established a national standard for abortion rights, Lawrence and Obergefell set national standards with gay rights — Lawrence for sexual activities, Obergefell for the right of same-sex couples to get married.

If Roe falls, it will give the Christian Right hope that Lawrence and Obergefell can be overturned as well. Post-Roe, the Christian Right argument for overturning those decisions will be along the lines of: “the Court has decided that Roe was wrongly decided in 1973, and that individual states must decide for themselves whether or not to have legal abortion — so why should there be a national standard for gay rights? The High Court has struck down Roe as unconstitutional, and applying that standard, Lawrence and Obergefell must be struck down as well.”

Justice Clarence Thomas, Justice Amy Coney Barrett, Justice Samuel Alito and other social conservatives who are likely to vote to overturn Roe would likely vote to overturn Lawrence and Obergefell as well.

Right-wing jurists, in some cases, can turn out to be highly protective of civil liberties. Anthony Kennedy, a right-wing Ronald Reagan appointee, was fiscally conservative during his decades on the High Court, but he often sided with the late liberal Justice Ruth Bader Ginsburg when it came to abortion and gay rights. The current leaning of the Court, however, is more in the direction of Justice Clarence Thomas and the late Justice Antonin Scalia — that is, Christian Right conservative rather than libertarian/Cato Institute/Reason Magazine conservative.

If Roe v. Wade is overturned, the Christian Right assault on civil liberties will not end with abortion. And gay rights, from sexual freedom to marital rights, will be a prime candidate for the fundamentalist chopping block.

'Will this institution survive the stench...?': Justice Sotomayor calls out her colleagues' right-wing agenda

This week, the U.S. Supreme Court is hearing oral arguments in Dobbs v. Jackson Women’s Health Organization and examining the constitutionality of Mississippi’s highly restrictive abortion law. Abortion rights defenders fear that the case will result in Roe v. Wade being overturned. Justice Sonia Sotomayor, speaking on Wednesday, was highly critical of the Mississippi law’s supporters — expressing concerns that the Supreme Court will be viewed as overly politicized.

Justices appointed by Republican presidents now have a 6-3 majority on the High Court, and Sotomayor is among the three justices appointed by Democratic presidents. The Court moved even more to the right in 2020 when liberal Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, a Donald Trump appointee. The two other right-wing justices Trump appointed during his presidency are Justice Brett Kavanaugh and Justice Neil Gorsuch.

Sotomayor, appointed by President Barack Obama in 2009, pointed to the fact that the new case is driven by political expediency and as the culmination of a carefully crafted agenda, rather than being the result of a particularly pertinent legal question or a new set of circumstances.

“Now, the sponsors of this bill, the House bill, in Mississippi said: We’re doing it because we have new justices," she explained. "The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said: 'We’re doing it because we have new justices on the Supreme Court.' Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

READ: The real history of US anti-abortion politics began in 1662 — and is bound to the legacy of slavery


Sotomayor added that certain “watershed decisions” by the U.S. Supreme Court, including Brown v. the Board of Education, “have such an entrenched set of expectations in our society.”

“We won’t be able to survive if people believe that everything, including New York v. Sullivan — I could name any other set of rights, including the 2nd Amendment, by the way,” Sotomayor told her colleagues. “There are many political people who believe the Court erred in seeing this as a personal right. If people actually believe that it’s all political, how will we survive? How will the Court survive?”

Why Republican accusations of Democratic 'hypocrisy' ring hollow during a 'do-or-die moment' on voting rights: journalist

With Republicans pushing voter suppression bills in state legislatures all around the U.S., the only hope Democrats have of countering that is passing a voting rights bill. But getting such a bill passed in the U.S. Senate is an uphill climb thanks to the filibuster, which Sen. Joe Manchin of West Virginia and Sen. Kyrsten Sinema of Arizona are adamantly opposed to abolishing. Washington Post opinion writer E.J. Dionne, in a November 28 column, stresses that Democrats are facing a “do-or-die moment” and need to find some way — come hell or high water — to get a voting rights bill passed in the U.S. Senate and onto President Joe Biden’s desk for signature. And Dionne also calls out Republicans who are claiming that Democrats who used the filibuster to torpedo GOP-sponsored bills in the past are now being hypocritical.

“Opponents of the John R. Lewis Voting Rights Advancement Act prefer not to explain why a Republican Party that once embraced voting rights bills now echoes segregationist Democrats of old in defending ‘states’ rights’ over federal voting guarantees,” Dionne notes. “And they would rather not be pressed on why they want to roll back the advances that made voting easier in 2020. More mail and early voting, drop boxes, less cumbersome registration and a slew of other changes led to record-breaking turnout. The Freedom to Vote Act is all about such access.”

Although Democrats have a narrow majority in the U.S. Senate, it isn’t enough to meet the 60-vote requirement of the filibuster. Some voting rights activists have been suggesting that a filibuster exception be created for voting rights — in other words, keep most of the filibuster, but allow voting rights bills to be passed with a simple majority rather 60 votes. Manchin and Sinema, however, have opposed that idea.

“Reforming the filibuster is the only way Democrats can pass the voting guarantees favored by civil rights groups and democracy advocates,” Dionne explains. “It’s the only way they can undo the voter suppression and election subversion laws that have been passed in more than a dozen GOP-controlled states since 2020. It’s the only way to dismantle wildly partisan gerrymanders.”

Sinema has been arguing that if Republicans regain control of the Senate, fellow Democrats will be glad to have the filibuster. And Republicans who are accusing Democrats of hypocrisy are pointing out how often the filibuster has been used to kill bills that the GOP sponsored.

“If consistency on the filibuster is your standard, good luck in finding many purists,” Dionne writes. “The loudest critic of changing filibuster rules now, Senate Minority Leader Mitch McConnell (R-Ky.), was happy to junk the filibuster in 2017 in his quest to pack the Supreme Court with conservatives. Seems pretty hypocritical to me.”

Dionne concludes his column by emphasizing that Democrats will be letting their voters down if they let the filibuster get in the way of a voting rights bill.

“If it fails to act,” Dionne warns, “the party that won power in 2020 as the bulwark of democracy and civil rights will be saying that these commitments matter less than fealty to an outdated, dysfunctional practice that has been altered repeatedly in pursuit of far less noble goals.”

How the Supreme Court’s 'emboldened' hard-right majority will dramatically reshape the US — and not for the better

Although Republicans have lost the popular vote in seven of the United States’ last eight presidential elections, the U.S. Supreme Court doesn’t begin to reflect that. Six of the nine justices were appointed by Republican presidents, including three Donald Trump appointees: Justice Amy Coney Barrett, Justice Brett Kavanaugh and Justice Neil Gorsuch. The High’s right-wing majority is almost certain to overturn Roe v. Wade, but as an in-depth essay/op-ed by Washington Post opinion writer Ruth Marcus explains, Roe is only the tip of the iceberg when it comes to the ways in which that majority will reshape life in the U.S. in the months to come — and not for the better.

Marcus opens her essay/op-ed, published on November 28, by noting what the late Supreme Court Justice William J. Brennan, Jr., had to say about a six-justice majority versus a five-justice majority. A six-justice majority, according to Brennan, feels more “emboldened.” And the GOP gained a six-justice majority when liberal Justice Ruth Bader Ginsburg, a Bill Clinton appointee, died in 2020 and was replaced by the far-right Barrett.

“A five-justice majority is inherently fragile,” Marcus explains. “It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps. A six-justice majority is a different animal…. The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.”

Marcus continues, “On the current Court, each conservative justice enjoys the prospect of being able to corral four colleagues, if not all five, in support of his or her beliefs, point of view or pet projects, whether that is outlawing affirmative action, ending constitutional protection for abortion, exalting religious liberty over all other rights or restraining the power of government agencies. A six-justice majority is emboldened rather than hesitant…. A conservative justice wary of providing a fifth vote for a controversial position can take comfort in the thought that now there are six; there is strength in that number.”

Chief Justice John Roberts, Marcus observes, now “occupies what passes for this Court’s center” and “holds the reins but is no longer firmly in control of his horses.” The High Court, according to Marcus, now has a “membership that has not been this conservative since the 1930s.”

The High Court, Marcus notes, has had a majority of “Republican appointees…. for half a century, since President Richard M. Nixon named Warren E. Burger to be chief justice in 1969, after Earl Warren’s retirement.” But many GOP appointees of the past, Marcus writes, were more nuanced than the GOP majority of 2021.

“Over time, and under the tutelage of the conservative Federalist Society, Republican presidents, beginning with George W. Bush and intensifying with Trump, became better at picking reliably conservative justices,” Marcus observes. “There were to be no more David Souters, who turned out to be a solid liberal vote; no more Sandra Day O’Connors, whose background as an Arizona state legislator often inclined her to compromise; no more Anthony M. Kennedys, the pale-pastel conservative named to the Court after Ronald Reagan’s first choice, Robert H. Bork, was resoundingly defeated.”

Given how much is at stake, some critics of the High Court’s right-wing majority have proposed expanding the Court to 11, 12, 13 or more justices, or imposing judicial term limits. Some democracies appoint justices to ten-year terms. But Marcus isn’t enthusiastic about either idea.

“Some treatments, like court-packing, would be worse than the disease,” Marcus argues. “Others, like imposing term limits, are harder to administer and wouldn’t be effective for years. Which means: The Court is where it is. The Rule of Six is now in force. Conservatives have time to write their views into the law books, where they will remain for decades to come. The change they choose to enact will be swift or slow; it will be open or stealthy. But make no mistake: It is coming. The Court, and the nation, will be worse off for it.”

How racism failed the defense miserably in the trial of Ahmaud Arbery’s killers

When the three men facing murder charges in connection with the killing of Ahmaud Arbery were on trial in Georgia, their defense team resorted to overt racism in the hope of getting an acquittal. But even though there was only one Black person on the jury, it didn't work; a predominantly White jury in the Deep South delivered "guilty" verdicts for all three men. And in analysis for CNN's website, Nicole Chavez and Brandon Tensley stress that in the Arbery case, racism failed miserably for the defense team.

"Ahmaud Arbery was the victim," Chavez and Tensley explain. "But for weeks, he was painted as a brute and a thug in the trial of the three White men who killed him. This tactic isn't new, but rather, the latest example in a long history of court cases that criminalize and dehumanize Black victims."

Chavez and Tensley point out that although racism didn't work for the defense team in this case, it often worked for defense teams in the past when the aggressors were White and the victims were Black.

"Emmett Till. Jordan Davis. Trayvon Martin. Botham Jean. George Floyd — all of them Black, all of them victims, just as Arbery was," Chavez and Tensley note. "Arbery's family can now feel a sense of justice after Gregory McMichael, Travis McMichael and William 'Roddie' Bryan, Jr. were convicted on Wednesday, but that outcome is a rare exception to the rule."

Chavez and Tensley point out that the defense team resorted to racism countless times during the trial, from describing Arbery as having "dirty toenails" to claiming that African-American pastors who attended the trial were there to be intimidating.

"Fear was another racist dog whistle used by defense attorneys, who highlighted the worries prompted by a string of unreported crimes in the neighborhood," Chavez and Tensley observe. "Travis McMichael testified that on the night of February 11, 2020 — nearly two weeks before Arbery's shooting — he saw someone 'creeping through the shadows' in the neighborhood."

But in this case, racism couldn't prevent a conviction for White defendants.

"Nearly ten years after (Trayvon) Martin's death," Chavez and Tensley write, "civil rights activists and protesters secured some solace from Wednesday's verdict in the Arbery death trial case."

The conviction of Ahmaud Arbery’s killers is an important warning to racists that ‘lynching will be punished’

On Wednesday, November 24 — the day before Thanksgiving 2021 — a verdict was handed down in the trial of the three Georgia men involved in the murder and lynching of Ahmaud Arbery. Travis McMichael, who shot and killed the unarmed Arbery at point-blank range, his father Greg McMichael, and their neighbor William "Roddie" Bryan were all found guilty of murder as well as aggravated assault and false imprisonment. Liberal Washington Post opinion writer Eugene Robinson applauds this verdict in a November 24 column, stressing that it sends out a vitally important message that lynching "will be punished."

The 25-year-old Arbery was out jogging in Glynn County, Georgia on February 23, 2020 when the men chased after him. Arbery was minding his own business and doing nothing wrong. The defendants claimed that they went after him because they suspected him of burglary, but there was absolutely no evidence of that — and when Travis McMichael fatally shot Arbery, the unarmed man had no way of defending himself.

"The killing of Ahmaud Arbery, a young Black man who had the gall to jog through a mostly White neighborhood, was nothing but a classic lynching of the kind that could have happened a century ago," Robinson explains. "We can say that in plain English now, with no hemming and hawing, following Wednesday's jury verdict finding Arbery's killers guilty of murder, aggravated assault and false imprisonment — the same crimes that White lynch mobs once regularly committed against Black Americans with impunity."

During the trial, many civil rights activists were dismayed by the fact that there was only one Black person on the jury. But that predominantly White jury convicted the three racists nonetheless, and all of them will likely spend the rest of their lives in prison.

The men's defense team, Robinson notes, "resorted to just about every racist trope used to denigrate and demonize Black men over the years, suggesting that the armed killers had reason to fear the slight Arbery's allegedly inhuman strength and malice. One defense lawyer, Laura Hogue, even went so far as to tell the jury that Arbery had 'long, dirty toenails.' Those defense attorneys utterly failed."

Robinson, a frequent guest on MSNBC, continues, "It took just 11 hours of deliberation for the almost all-White jury to find the three White defendants guilty of lynching a Black man. Maybe there's a glimmer of hope for justice in these United States after all."

The columnist adds, however, that while he is "relieved and encouraged by the way this horrible episode has ended," it "would be wrong to forget the shockingly retrograde events that started it all."

The important message that came from a predominantly White jury, according to Robinson, is: "If White men chase an unarmed Black man down and lynch him, they will be punished."

"That should be an unremarkable statement," Robinson writes. "And we should not have to feel so relieved to see it affirmed."

Right-to-privacy? Here are 5 landmark Supreme Court rulings that could be in danger if Roe v. Wade is overturned

With Republican-appointed justices now having a 6-3 majority on the U.S. Supreme Court, the overturn of Roe v. Wade could be fast approaching. The end of Roe would not automatically mean the end of legal abortion in the United States. Roe, a landmark 1973 Burger Court ruling, essentially legalized abortion nationwide — and if the High Court were to rule that Roe was wrongly decided, the legality of abortion would be decided on a state-by-state basis. But the repercussions of Roe being overturned go way beyond abortion rights.

Roe is an example of what legal scholars call a right-to-privacy decision. According to the right-to-privacy argument — which has been championed by liberals and progressives as well as right-wing libertarians like former Supreme Court Justice Anthony Kennedy — government has no business dictating what adults do when it comes to sexual practices, contraception or access to sexually explicit material. And if Roe falls, there is no reason to believe that other key right-to-privacy decisions will not be in danger as well.

Here are five landmark Supreme Court rulings that are likely to be on the chopping block if Roe v. Wade is overturned.

1. Griswold v. Connecticut (1965)

When the Burger Court handed down its landmark Roe v. Wade decision 48 years ago, it drew on previous right-to-privacy rulings — and one of them was 1965's Griswold v. Connecticut. The Griswold in that case was the late feminist Estelle T. Griswold, who aggressively challenged a Connecticut law forbidding the use of contraception by married couples (that law was passed in 1879). Griswold, executive director of Planned Parenthood in Connecticut, argued that government had no business telling married couples whether or not they could use contraception. And in 1965, the Supreme Court under Chief Justice Earl Warren (a Republican appointee of President Dwight D. Eisenhower) agreed with her. The Connecticut law was struck down along with similar prohibitions in other states.

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Just as Roe was a nationwide victory for abortion rights, Griswold was a nationwide victory for married couples who wanted to use contraception. It is a decision that the Christian right detests as vehemently as it detests Roe, and if Griswold were overturned, red states could move to outlaw contraception for married couples.

After Kennedy announced his retirement in June 2018, Genevieve Scott — a senior staff attorney for the Center for Reproductive Rights — warned that if Roe is in danger, Griswold is in danger as well. Scott told Salon, "An extremely conservative justice who would be interested in overturning Roe v. Wade would also be a threat to the right to contraception. The future of both access to abortion and access to birth control, as well as women's reproductive rights when they are pregnant, is really on the line here…. The privacy right that is recognized in Roe v. Wade is actually derived, in part, from the prior decision in Griswold v. Connecticut."

2. Lawrence v. Texas (2003)

Although Kennedy was nominated for the Supreme Court by President Ronald Reagan in 1987, he was a champion of the right-to-privacy concept. The right-wing libertarian was a fiscal conservative, but he often sided with the late Justice Ruth Bader Ginsburg and other liberal justices when it came to right-to-privacy issues — and one of the most important decisions that he authored was in 2003's Lawrence v. Texas, which struck down a Texas sodomy law and, by extension, similar laws all over the United States. Lawrence was a huge victory for gay rights, infuriating the Christian right.

If Roe were struck down, Lawrence would be on the chopping block as well. The reasoning behind Lawrence — that government has no business dictating the sexual behavior of gay adults — drew heavily on the right-to-privacy reasoning of Roe and Griswold. And if the High Court decided that Lawrence was wrongly decided, states would once again be free to pass laws criminalizing gay sex.

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3. Obergefell v. Hodges (2015)

Kennedy not only came together with Ginsburg in Lawrence, but also, in Obergefell v. Hodges — the landmark right-to-privacy ruling that, in 2015, legalized same-sex marriage nationwide. Thanks to Obergefell, individual states cannot have laws prohibiting men from marrying other men or women from marrying other women. And if Roe were overturned, the Christian right would be hopeful that Obergefell could be overturned as well.

Far-right evangelical fundamentalists view Obergefell as an assault on religious freedom, which it isn't. Under Obergefell, individual churches are under no obligation to marry same-sex couples if they don't want to; Obergefell leaves that up to the churches. But same-sex couples now have a legal right to get married, whether they do so at a justice of the peace or through churches that accept gay marriage. Obergefell has been a win-win situation for both gay rights and religious freedom — even though the Christian right doesn't see it that way.

4. Stanley v. Georgia (1969)

In 1969, Earl Warren's last year as chief justice, the Supreme Court handed down one of its most important right-to-privacy decisions: Stanley v. Georgia, which said that Americans have a legal right to possess sexually explicit adult material even if that material is obscene. That doesn't mean that the material in question cannot be prosecuted for obscenity, but it does mean that the person possessing it cannot be prosecuted for obscenity. Thanks to Stanley, no one in the U.S. can be prosecuted for obscenity for downloading a porn movie online as long as the participants are consenting adults; U.S. obscenity law, under Miller v. California, has to do with creation and distribution, not simple possession.

If Roe and Griswold go down, Stanley is likely to be overturned as well. And the importance of Stanley goes way beyond porn. As the Christian right sees it, sex education material is obscene — and if the Supreme Court were to strike down Stanley, teachers could be prosecuted for obscenity merely for having sex education material on their hard drives.

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For that matter, having sexually explicit songs on one's hard drive could become risky in a post-Stanley America. Imagine the Christian right telling Americans they could be prosecuted for obscenity merely for downloading a Lil' Kim or N.W.A recording.

5. Eisenstadt v. Baird (1972)

In 1972, the U.S. Supreme Court's decision in Eisenstadt v. Baird expanded the rights of Griswold to unmarried couples — saying that if married couples have a right to use contraception, so do unmarried couples. If the Supreme Court overturns Roe and Griswold, Eisenstadt could be struck down as well.

Supreme Court will consider if the right to keep a gun at home applies to carrying weapons in public

by Morgan Marietta, University of Massachusetts Lowell

The Supreme Court is set to hear arguments Nov. 3, 2021, on a clear question: Does the constitutional right to possess a gun extend outside the home? The answer may alter gun regulations in many states.

The crux of the issue before the court is captured by a debate that Thomas Jefferson had with himself at the time of the founding.

When Jefferson was drafting a proposed constitution for his home state of Virginia in June 1776, he suggested a clause that read “No freeman shall ever be debarred the use of arms."

In the second draft, he added in brackets, “[within his own lands or tenements]."

Jefferson's debate with himself captures the question posed to the court: Is the purpose of the right to “keep and bear arms" the protection of a citizen's “own lands," or is it self-protection in general? Does the Second Amendment to the U.S. Constitution recognize a right to keep and bear arms in the home, or a right to “keep" firearms in the home and also “bear" them outside of the home for protection in society?

The plaintiffs in the upcoming case New York Rifle & Pistol Association v. Bruen want the court to strike down the state's restrictions and allow citizens who meet basic requirements, such as having no criminal convictions, to carry concealed weapons.

Gun in the house

There are surprisingly few Supreme Court rulings on the meaning of the Second Amendment.

The question of whether the amendment recognizes a fundamental right – on par with free speech or free exercise of religion – was not decided until 2008 in the landmark ruling in District of Columbia v. Heller. For the first time, the court recognized a clear individual right to bear arms for the purpose of self-defense. This deeply disputed 5-4 ruling was expanded two years later to cover state laws.

The Heller ruling stated that the Second Amendment's right is like the others in the Bill of Rights, which cannot be violated without the most compelling reasons. The amendment, the ruling says, “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." The Washington, D.C., law intended to reduce crime cannot ban firearms in “the home, where the need for defense of self, family, and property is most acute."

That ruling – written by Justice Antonin Scalia, who died in 2016 and was replaced by Justice Neil Gorsuch – also recognized that “like most rights, the right secured by the Second Amendment is not unlimited." Scalia cited regulations like “longstanding prohibitions on the possession of firearms by felons and the mentally ill" or “prohibitions on carrying concealed weapons" as “presumptively lawful."

The principal dissent was written by Justice Stephen Breyer, the only dissenter in Heller still serving on the court. He emphasized the balance between core rights and the needs for public safety.

“If a resident has a handgun in the home that he can use for self-defense," wrote Breyer, “then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence."

Concealed carry laws

State governments follow very different procedures for determining who will be allowed to carry a concealed firearm outside of the home.

Open carry," or just having a handgun in plain sight on a belt holster or carrying a long gun (rifle or shotgun), is actually legal in many places. The general idea is that carrying openly would be done only by an honest actor, so less regulation is needed. “Concealed carry," having a hidden weapon in a pocket or under a jacket, is far more restricted.

At one end of the continuum are near-bans on what are called “concealed carry licenses," while at the other end are states in which no license is needed. These laws are referred to as “constitutional carry," meaning the U.S. Constitution itself is a citizen's license to carry a firearm.

In between these two positions are rules known as “shall issue," whereby the government issues a license if the applicant meets the requirements such as having no felony convictions, or “may issue," which gives the government discretion to deny a license based on perceptions of fitness.

New York state has “may issue" laws with stringent requirements, which in practice allow almost no licenses to be issued. Applicants must demonstrate a “proper cause" – such as being in imminent danger from a known source – which effectively eliminates ordinary applicants.

Regulation or eradication

The strongest argument in the gun owners' brief to the Supreme Court relates to New York's insistence that citizens show an exceptional or extraordinary need to exercise a right that the court has recognized as fundamental.

No other fundamental right, such as freedom of speech or religion, is limited to people who can demonstrate special circumstances. Instead, fundamental rights are understood to be held by ordinary people in ordinary circumstances.

The strongest argument in the opposing brief from the New York State Police is federalism – the longstanding conservative argument that state lawmakers hold wide latitude to determine their own regulations to serve as “laboratories of experimentation," as Justice Louis Brandeis phrased it in 1932. The federalist principle suggests that the court should defer to the judgment of state legislatures representing the needs of local citizens.

As a close observer of the Supreme Court, I can imagine an outcome to the case in which the justices rule that, under the Second Amendment, a state can limit but not eliminate the core purposes of the protected right.

The Heller decision identifies at least one purpose as self-defense. The question is whether a specific concealed carry law creates a burden so strong that it becomes equivalent to eradication of the right to self-protection, or whether it imposes a legitimate public safety regulation that still maintains the core right for citizens who assert it.

Individual rights vs. fellow citizens

The most permissive laws that allow unrestricted concealed carry are almost certainly not mandated by the Constitution.

“Shall issue" laws, which allow states to screen applicants for flaws but compel local governments to provide a concealed carry license to qualified citizens, are likely to be seen even by the conservative justices as legitimate regulations that do not create unconstitutional burdens.

However, the current court might be likely to see a “may issue" law like New York's, which allows the government to deny a license to nearly every applicant, as creating a burden that blocks the core of the right to self-protection where ordinary citizens are exposed to greater threats – outside the home.

The dissenters will likely focus on Scalia's invocation of the home as the height of the defensive right, allowing for restrictions outside one's “own lands," where individual rights are balanced against the interests of fellow citizens.

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Morgan Marietta, Associate Professor of Political Science, University of Massachusetts Lowell

This article is republished from The Conversation under a Creative Commons license. Read the original article.

‘Some geniuses': Justice Kagan wryly mocks the architects of the Texas abortion ban in oral arguments

Reproductive rights activists have been disappointed that the U.S. Supreme Court has so far allowed Texas' draconian anti-abortion law to go into effect, which they view as a troubling sign that Roe v. Wade is likely to be overturned. And on Monday, Justice Elena Kagan — one of three out of nine high court justices appointed by a Democratic president — was vehemently critical of the Texas law's architects.

The 61-year-old Kagan said during oral arguments Monday over the Texas ban that the "entire purpose of the law" is to "find the chink in the armor" of a basic principle of "how our government is supposed to work." Instead of using law enforcement to implement the ban on abortions after six weeks, the Texas law outsources that function to ordinary citizens who are empowered to bring hefty lawsuits seeking up to $10,000 from anyone who assists a woman obtain an abortion in the state.

After many years, the native New Yorker said, "Some geniuses came up with a way to evade" the "principle that states are not to nullify federal constitutional rights and to say, 'Oh, we've never seen this before. So, we can't do anything about it.' I guess I just don't understand the argument."

Kagan, nominated by President Barack Obama in 2010, argued that if individual states could pass laws that violate constitutional norms, "we would live in a very different world from the world we live in today."

"Essentially," Kagan said, "we would be inviting states —all 50 of them, with respect to their unpreferred constitutional rights — to try to nullify the law that this court has laid down as to the content of those rights. I mean, that was something that until this law came along, no state dreamed of doing."

Slate's Mark Joseph Stern noted how "exasperated" Kagan sounded:

The U.S. Supreme Court moved even more to the right in 2020, when liberal Justice Ruth Bader Ginsburg died and was replaced by the Justice Amy Coney Barrett — a far-right social conservative who is likely to vote in favor of overturning Roe v. Wade. Six of the High Court's nine justices were appointed by Republican presidents, while Kagan, Justice Sonia Sotomayor and Justice Stephen Breyer are the only remaining Democratic appointees.

However, many observers noted that though, in the long term, abortion rights are likely to be sharply restricted by this court, the Texas law did not receive a friendly welcome on Monday before the justices. Even if they ultimately want to overturn Roe, some of the conservative justices seem dissatisfied with method Texas has taken to circumvent the court's precedents in this instance.

GOP is planning a 'coup' for 2024 — and Democrats aren’t doing enough to prevent a 'constitutional crisis': reporter

Countless articles on the voter suppression bills being passed or proposed by Republicans in state legislatures all over the U.S. have focused on the ways in which they make voting more difficult, but that isn't the most sinister part of the bills — which are also putting MAGA Republicans in charge of election administration and paving the way for them to throw out election results they don't like. Reporter Ari Berman, in an article published by Mother Jones this week, warns that MAGA Republicans have a game plan for stealing the 2024 presidential election if they lose — while Democrats aren't doing nearly enough to stop that from happening.

Berman explains, "In March 2021, before the Senate held its first hearing on the For the People Act, the Democrats' sweeping democracy reform bill, Sen. Amy Klobuchar (D-Minn.) told me that her party had a 'once-in-a-century moment to protect people's right to vote.' But that historic opportunity to pass voting rights legislation is rapidly disappearing. And many Democrats and voting rights advocates are growing increasingly frustrated with the Biden Administration's lack of urgency and prioritization concerning threats to democracy, as Republicans across the country aim to consolidate their power for at least a decade."

In addition to the For the People Act, Democrats in Congress have proposed voting rights bills that include the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act — which, on October 20, was filibustered and blocked by Senate Minority Leader Mitch McConnell. Senate Democrats would be able to narrowly pass the Freedom to Vote Act if a voting rights exception to the filibuster was created, but Sen. Joe Manchin of West Virginia and Sen. Kyrsten Sinema of Arizona — both centrist Democrats who are adamant supporters of the filibuster — are opposed to that. And Berman believes that voting rights need to be a "bigger priority" for the Biden Administration.

Berman observes, "What is clear is that the administration has not lobbied Manchin, Sinema, or other members of Congress to support voting rights legislation or used the bully pulpit with the same urgency and intensity they've devoted to issues like the infrastructure bill, (the) Build Back Better Act, and raising the debt ceiling…. There's also no evidence that Manchin or Sinema will ever change their positions on the filibuster."

Following the 2020 presidential election, former President Donald Trump and his lawyers showed how much they had in common with authoritarians like Russian President Vladimir Putin and Hungarian Prime Minister Viktor Orbán when they tried to overturn the election results. The United States' check and balances held up, but Berman fears that they won't in 2024 unless Democrats find a way to get a voting rights bill passed and sent to President Joe Biden's desk for signature.

"Democrats breathed a sigh of relief when Biden was inaugurated, but Trump and his allies were just getting started with their efforts to undermine democracy," Berman stresses. "Just because the first coup failed doesn't mean the next attempt won't succeed. This has all the makings of a constitutional crisis, but Democrats have done nothing to stop it."

Berman continues, "The Freedom to Vote Act would counter many of the GOP's anti-democratic tactics by expanding voting access through policies like automatic and Election Day registration, two weeks of early voting, and no-excuse absentee voting nationwide; banning partisan gerrymandering; and protecting the right to have your ballot counted. But voting rights advocates are now shouting from the rooftops that time is running out to pass it — and if they don't do so soon, Republicans will do everything they can to rig the political system in their favor. And Democrats will likely lose their majorities as a result, becoming powerless to reverse the extreme gerrymandering, voter suppression and election subversion."

Here's how the Supreme Court is 'keeping foreign money' out of US politics — even after Citizens United: law professor

Although the MAGA movement has promoted intense hyper-nationalism and former President Donald Trump once chastised former Florida Gov. Jeb Bush for speaking Spanish on the campaign trail, the pro-Trump Great America PAC was fined by the Federal Election Commission earlier this month for soliciting foreign contributions. And according to Talking Points Memo's Ciara Torres-Spelliscy, the U.S. Supreme Court "appears" to be on the side of those who want to keep foreign money out of U.S. politics.

"Massachusetts is trying to limit foreign corporate political spending in is its elections through new legislation, and the U.S. Supreme Court, it appears, is actually on their side," Torres-Spelliscy, a law professor at Stetson University, reports. "This may come as a surprise: The Roberts Court has repeatedly opened the doors to more money in politics. And Justice (Samuel) Alito famously disagreed with President (Barack) Obama who, during the 2010 state of the union, scolded the justices to their face about their ruling in Citizens United."

Obama, a major critic of the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission, said, "I don't think American elections should be bankrolled by America's most powerful interests —or worse, by foreign entities."

Torres-Spelliscy explains, "Foreign nationals, the human kind, have long been barred from spending in U.S. elections under 52 U.S.C. § 30121. That is why election law experts had their hair on fire about the question of Russian interference (in) the 2016 election. And even the Roberts Supreme Court, in a case called Bluman v. FEC, upheld the constitutionality of the ban on foreign nationals' spending money in American elections. But the law has been as clear as mud between 2010's Citizens United and 2020's Open Society II about whether that foreign ban naturally applied to foreign corporations as well as humans."

The reporter adds, "In two cases, the State of California and the FEC took the position that the foreign ban did apply to foreign corporations."

Torres-Spelliscy elaborates on why the U.S. Supreme Court's 2020 ruling in Agency For International Development v. Alliance For Open Society International is important.

According to Torres-Spelliscy, "These state and local efforts to keep foreign money out have generated criticism that they would violate the First Amendment rights of corporations under Citizens United to spend money in politics. That's why the Open Society II case is so important: it indicates that foreign corporations cannot raise First Amendment objections to U.S. laws or policies. Thus, a law that bans foreign corporations from spending in U.S. elections cannot be challenged by a foreign corporation as a violation of free speech. According to Open Society II, foreign corporations have no such rights to assert. This means reforms like those in St. Petersburg, Washington State and pending in Massachusetts are on firmer constitutional ground."

Happy Holidays!