the Irish for rights

Is DC v Heller a Roe v Wade for our times?

Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.

For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security.

In 1972, the Supreme Court of the United States decided Roe v Wade 410 US 113 (1973) (Findlaw | Justicia | Oyez | wikipedia), which held the Due Process Clause of the Fourteenth Amendment to the US Constitution protects the (penumbral) right to privacy, including a woman’s qualified right to terminate her pregnancy. It was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. The Court was sharply divided; the case was decided on the basis of contestable ; and it has subsequently given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

In 2008, the Supreme Court of the United States decided US v Heller 554 US __ (2008) (official pdf | Findlaw report) (Balkinization | Mike O’Shea on Concurring Opinions | NRA | Posner | ScotusWiki | Volokh | Wikipedia), which held that the Second Amendment to the US Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. As with Roe, it, too, was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. Again, the Court was sharply divided; the case was decided on the basis of contestable constitutional theory; and it has already given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

But there is one obvious difference between the two cases: whereas Roe stands as the highpoint of liberal judicial activism and reflects a then quite dominant liberal political perspective, Heller stands as a similar highpoint of conservative judicial activism and reflects a now very marked conservative political perspective.

These similarities and differences raise some important questions. For example, Roe became a rallying-point for legal, social and political opposition (update: backlash) to judicial and political liberalism; will Heller become a similar rallying-point for legal, social and political opposition to judicial and political conservatism? Moreover, views on the correctness of Roe have become a litmus test for Republican nominees to the Court; will Heller similarly become a litmus test for Democratic nominees to the Court?

Finally, if (and when?) there is a majority on the Court to reverse Roe, will they do it? Or will they baulk at such a naked exercise of judicial-political power? Or are there other judicial/political considerations afoot? Or will they realise that to overrule Roe simply because they disagree with its political underpinning would be to eviscerate the doctrine of precedent? If they do overrule Roe, then every decision of the Court is up for grabs, even the case that overrules Roe, and yes, even Heller!

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5 Responses to “Is DC v Heller a Roe v Wade for our times?”

  1. Anne says:

    Roe created a right for a mother to end the life she sustains within her. The life is an unique individual, with it’s only DNA that has never before existed and will nev.er naturally exist again. Even liberal legal scholars have stated that it is on shaky legal ground.

    Heller interpreted a right in the 2nd Amendment in the way it has been interpreted since our founding. It was not a radical departure from the Constitution.

    The issue is: Human life vs. legal personhood. The Roe, the 1973 Supreme Court did not consider the humanity of the child. No evidence was presented. Roe is based on 35-year-old evidence. We now have DNA evidence and medical technology, such as 4-D ulrasound. There is not doubt the unborn are human. The issue is whether they deserve the status of legal personhood.

    Abortion has devalued life and our culture. We are the worse for it.

  2. bridget says:

    Agree with Anne about the substantive distinctions. Sadly, I think that a lot of Americans have not read the Constitution; they are frequently surprised, for example, to find out that there is no guarantee of privacy within the words.

    As for Heller being a rallying point for liberals: probably not. Even Barack Obama said that he agreed with the decision (which may have been because most of the country did, too).

    As another distinction, Heller may not be binding upon the states. If so, it is only a prohibition of Congressional action, which is in line with federalist principles. Many states have their own guarantees of the right to keep and bear arms, so it would be a moot point. (Most states, however, only have a statutory right to abortion.)

    As for overruling Roe: it actually depends on the cases that come before the Court. If they are all cases like parental notification, banning partial-birth abortion, or regulating abortion clinics (which you would hope would happen anyway), then the justices will slowly chip away at Roe.

    Scalia has spoken a fair amount about when it is acceptable to overrule precedent. His standards, which include workability of the precedent, would likely apply to Roe.

  3. Eoin says:

    Anne makes a case about the legal and moral correctness of Roe with which Bridget agrees, but my post had nothing to do with that.

    I’m not making a point about the correctness of either decision. (Roe is difficult to defend in its own terms, and in any event the Court has moved on to O’Connor J’s “undue burden” standard. Heller is much easier to defend, because the Second Amendment does in fact talk about keeping and bearing arms, and it must mean something).

    Rather, I’m making a point about what Roe has come to represent, and asking whether Heller might come to represent something similar. It is with this that Bridget disagrees. But I’m not convinced. The similarity between the cases that drove me to write the post in the first place – and which, in typical fashion, I then forgot to put in! – is the fact that they both announced new constitutional rights. Indeed, in this respect, Heller is even more radical than Roe, because there were precursors to Roe, whereas Heller – like Aphrodite – was born fully formed. And whatever about the legal merits of the decisions, the rights so announced are socially contestable and contested. We have seen the legal consequences of the social contest in the context of Roe, and my speculation is whether there may be similar legal consequences of the social contest in the context of Heller. Bridget gives good legal reasons (Federalism) why this might be thought to be unlikely, but that rather misses the point, since the legal consequences about which I am speculating are driven not by legal considerations but by social ones. And it is much to early to tell whether societal push-back against the NRA might general a social contest which would have legal consequences in the context of Heller.

    Finally, as for overruling Roe, my point is simply that if Roe goes, so might Heller.

  4. I think the great enigma of “interpretation” is what causes all of these problems and controversies in the first place. Most people see things in different ways.

  5. […] of the most controversial issues regularly before the Court (up there with abortion and guns) is affirmative action, especially in college admissions. At the end of last week, in Fisher v […]

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Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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