Don’t Let Judges Use ‘History’ to Erode Our Rights

In two controversial decisions this week, the Supreme Court turned to history to justify the political views of an emboldened conservative majority. With haughty condescension, the majority concluded that a New York State law regulating firearm use was unconstitutional because it limited the right to bear arms in ways inconsistent with the Second Amendment and the “traditions and history” of the United States. As historians have shown for the last several years, this is nonsense. Saul Cornell puts it this way: The “historical record not only demonstrates that arms have been closely regulated when carried in dense and populous areas for more than 700 years, and it showed that New York’s own law was part of a constitutional transformation in gun regulation during the era of the 14th Amendment that swept across the nation.” The Supreme Court used a selective reading of history to support a particular strand of gun culture ideology. As a result, public safety will be undermined.

If the perversion of history to justify contemporary tastes in gun ownership wasn’t egregious enough, the decision striking down Roe doubled down on making the past speak the language of a minority of right-wing, religious ideologues. Women will no longer have a right to terminate a pregnancy because such a right is not “deeply rooted in this Nation’s history and tradition.” Only such rights will be protected. Who gets to decide which ones count? Apparently, it will be the ideologues whose selective reading of the past, public safety and ethics will enable them to find in history whatever they need to justify their current positions. As Wesleyan Professor Victoria Pitts-Taylor has said: “This decision comes after years of assaults on abortion rights that have eroded access to abortion care across the nation. Even so, it is a devastating ruling, one that invites further attacks on reproductive autonomy and will hit the most vulnerable women and girls and their communities the hardest.” No matter that previous Justices, many appointed by Republican presidents, found that a woman should be able to make her own health care decisions. Linda Greenhouse concludes: “In asserting that these justices led the court into grave error from which it must now be rescued, Justice Alito and his majority are necessarily saying that these predecessors, joining the court over a period of four decades, didn’t know enough, or care enough, to use the right methodology and reach the right decision. The arrogance and unapologetic nature of the opinion are breathtaking.”

Breathtaking indeed. We must counter this arrogance with historical research and political organizing. We can recognize the complexities of the debates around abortion and still support a woman’s right to choose her own medical care. We can recognize traditions of gun ownership while also showing the deep history of gun regulation. We are fortunate in Connecticut to have government officials who support common sense legislation about gun safety and who defend a woman’s right to choose the kind of medical care, and the kind of life, she wants for herself. At Wesleyan, we have sponsored research and teaching on gun safety, and many students, faculty and staff have participated in the Doula Project to support women in the process of choosing the health care that is appropriate for them.

We learned this week how fragile our public safety and our rights are. Wherever you stand on these issues, make your voices heard so that they will not be drowned out by unaccountable, ideologically driven judges.

4 thoughts on “Don’t Let Judges Use ‘History’ to Erode Our Rights”

  1. Spot on, Michael. Good to see your analysis. As a lawyer and a law professor, I am conscious of how those who are not in the legal profession too often cede constitutional issues to those who are. But the Constitution belongs to all of us. The seven hundred year historical point is powerful. For me, though, as, Thurgood Marshall believed, the Constitution is a living document which does not leave us chained to a past that is uninformed by the progress of knowledge.

    I am thankful to you not only for your leadership of my alma mater, but for your voice and leadership in higher education and in our country.

  2. Shame on you for misrepresenting these two SCOTUS decisions. The decision with respect to the 2nd Amendment right to bear arms is exceedingly narrow and does NOT prohibit reasonable regulation of that right to bear arms. The NY rule was unreasonable on its face since it was out of line with historical practices regulating the right – as the SCOTUS decision pointed out.

    Regarding abortion, Merriam Webster defines healthcare this way: “efforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals.” Consequently, healthcare pertains to the well-being of the woman.

    Abortions under SOME, but not all, fact settings can be characterized as reproductive healthcare. An abortion in the case of a miscarriage certainly is healthcare since failure since it pertains to the well-being of the woman. But an abortion to terminate a pregnancy where the “health” of the woman is not threatened by the pregnancy most certainly is not “care” for the “health” of the woman. It might be care for the reproductive status of the woman but it is not care for the health or well-being of the woman.

  3. Leaving aside all constitutional arguments, President Roth fails to acknowledge what elementary school science and English language competency make undeniable, namely, abortion is the killing of an innocent, defenseless, voiceless, unique human life. I recognize that unplanned pregnancy can produce unanticipated challenges that we must work to solve as a caring community. However, we cannot start to solve those challenges without starting with an acknowledgment of the undeniable truth. Anything else is fantasy, delusion, and worse.

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