UPDATED, 5/5/22 — Incredible as it may seem, there are four specific references in the early pages of the leaked Supreme Court draft ruling that appears to overturn Roe v. Wade, the celebrated 1973 abortion rights ruling dealing with incorporation of rights via the 14th Amendment.
The references begin on Page 9 of the draft, which was leaked to Politico and has now become the focus of a major scandal, not only because of the content, but because it involves a breach of Supreme Court protocol and confidentiality. Chief Justice John Roberts has ordered an investigation, and pundits are trading theories on cable television about the ramifications of the leak.
This is unfolding against a backdrop of furious and sometimes hysteria-level reaction from the left. Among the most vocal, and visibly angry, voices on Capitol Hill was that of Sen. Elizabeth Warren (D-MA), who declared to reporters, “I am angry. Angry and upset and determined. The United States Congress can keep Roe v. Wade the law of the land. They just need to do it.”
According to the Boston Globe, Warren’s remarks were captured on video “and quickly ricocheted across social media Tuesday.”
Demonstrations were held from Washington, D.C. to Washington State, where angry pro-rights demonstrators gathered in Seattle, and the city’s daily newspaper—the Seattle Times—carried several stories relating to the ruling.
But it is the references to the 2010 Supreme Court decision in McDonald v. City of Chicago, brought by the Second Amendment Foundation, which nullified the Windy City’s long-standing handgun ban and incorporated the Second Amendment to the states via the 14th Amendment that caught the attention of some gun rights activists. There is also a reference to District of Columbia v. Heller, the 2008 ruling striking down Washington, D.C.’s handgun ban.
The leaked draft says one argument by supporters of Roe v. Wade is that abortion rights were incorporated to the states similarly to how the Second Amendment was via McDonald.
Then on Page 12 of the leaked draft, almost an entire paragraph is devoted to explaining the McDonald case’s relevance.
In discussing a case involving protection against excessive fines as a violation of the Eighth Amendment, the draft says, “A similar inquiry was undertaken in McDonald, supra, which held that the Fourteenth Amendment protects the right to keep and bear arms. The lead opinion surveyed the origins of the Second Amendment, the debates in Congress about the adoption of the Fourteenth Amendment, the state constitutions in effect when that Amendment was ratified (at least 22 of the 37 States protected the right to keep and bear arms), federal laws enacted during the same period, and other relevant historical evidence…Only then did the opinion conclude that ‘the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.’”
If nothing else, this passage reminds readers that the Second Amendment protects a fundamental, individual right to keep and bear arms. This is no small matter, since the high court is also expected to deliver a decision sometime during the next two months in a Second Amendment case challenging New York State’s restrictive carry permit scheme.
Traditionally, the Court releases its most controversial rulings in the final days of its session, which wraps up at the end of June. While the proverbial cat may be out of the bag where abortion rights are concerned—at least that is the current belief—the justices have been closed-mouth about New York State Rifle & Pistol Association v. Bruen, which is probably as it should be.
Reproductive rights may have the spotlight currently, but if an affirmative ruling is issued smacking down New York’s “good cause” licensing restriction, wails from anti-gunners from Massachusetts to California will dominate the news cycle.
One report at Fox News suggests the abortion draft was leaked “in an effort to energize liberal voters ahead of the midterms,” according to a former pollster and adviser to President Bill Clinton and Hillary.
A gun rights victory might have a similar impact, but it would also bring out millions of Second Amendment voters in the eight states with similar licensing restrictions, including New York, New Jersey, Maryland, Massachusetts, California and Connecticut.
As those rulings draw nearer, grassroots gun rights activists will be working to get out the vote for the midterms, in order to recapture Congress and put a stop to the Biden administration’s gun control efforts.
