Editor’s Note: Kayleigh McEnany is a CNN commentator and supporter of Donald Trump. She graduated from Harvard Law School with a Juris Doctor. She received her B.S. in International Politics from Georgetown University’s School of Foreign Service and studied politics at Oxford University. The views expressed in this commentary are her own.
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Kayleigh McEnany: Over time, SCOTUS has affirmed individual rights on both abortion and guns
Constitutional implications of "right to choose" worth considering alongside "right to bear arms," she says
As many applaud the Supreme Court’s decision yesterday in Whole Women’s Health v. Hellerstedt to roll back state abortion restrictions, perhaps they should consider how the high court could likewise roll back state gun restrictions using a similar rationale.
It’s a broad analogy, but an important one. In 1973 in Roe v. Wade, the court decided that the right to privacy under the 14th Amendment included a woman’s right to have an abortion. Similarly, decades later in D.C. v. Heller and McDonald v. Chicago, the high court decided that the Second Amendment right to bear arms included an individual’s right to own a gun.
Taken together, whatever you may think about the accuracy of these rulings, Roe and Heller-McDonald cement the individual’s right both to have an abortion and own a gun. For both of these fundamental rights the court will scrutinize and oftentimes strike down any state regulation that burdens them. It is worth considering whether those applauding the court for upholding the right to choose would do so tomorrow if the constitutional right at stake was the right to own a gun.
The Supreme Court decided yesterday in the Whole Woman’s Health case that two provisions in a Texas state law unduly burdened a woman’s choice to have an abortion. The first required that abortion providers have admitting privileges to a hospital within a 30-mile radius, while the second made abortion centers subject to the same health codes as surgical centers, where doctors perform procedures not requiring an inpatient hospital stay.
In analyzing these requirements, the court asked whether they placed an “undue burden” on the woman’s right to have an abortion – a standard derived from the 1992 decision Planned Parenthood v. Casey. Casey reads in part: “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” This is not to say all limitations on abortion are unconstitutional. Indeed, Casey itself upheld the states’ right to require informed consent, parental consent, and a 24-hour waiting period, among others.
Using this test, the court held this week in Whole Woman’s Health that “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.” But if the Texas laws aimed at health reform unduly burden the right to choose, it is important to consider how state gun control laws could likewise infringe upon the right to bear arms.
Decided in 2008 and 2010 respectively, Heller and McDonald enshrined individual ownership of firearms as a constitutionally protected right. Like the “right to choose,” the right to a firearm is not limitless. Indeed, Heller itself states: “Like most rights, the right secured by the Second Amendment is not unlimited.”
But both sets of cases, pertaining to abortion and guns, beg this question: what are the outer bounds of limitation? For instance, is Maryland’s ban on assault weapons permissible? Can the county of San Diego only permit residents to carry firearms upon a showing of “good cause”? At the appellate level, assault weapons bans and good cause requirements have been struck down by some circuit courts and upheld by others, but the Supreme Court has yet to speak on them, leaving the outer bounds of limitations on the Second Amendment hazy at best.
These boundaries remain blurry because with regard to the Second Amendment, the test of proper limitation is not so clear-cut as the “undue burden” standard involved with the “right to choose.” Where Casey provided the “undue burden” test in the realm of abortion, neither Heller nor McDonald provided a test or what lawyers would refer to as a “standard of scrutiny” when addressing guns. What McDonald did seem to suggest, however, was that the right to bear arms was a “fundamental right,” therefore triggering the very strict test of “strict scrutiny” for all gun regulations. Indeed, famed constitutional law scholar Eugene Volokh argues just this point: “McDonald’s conclusion that the right is fundamental… might lead courts to apply strict scrutiny.”
Now, it is entirely fair to question whether abortion or gun ownership are in fact constitutional rights at all. For instance, I would argue that the right to have an abortion is not a constitutional right, and thus Roe should be overturned. In the converse, many Democrats do recognize gun ownership as a fundamental right, and it is at that point that gun ownership attains vigorous protections, protections that might mean sacrificing partisan interest and the rolling back of some state-level gun control.
In a world of strict scrutiny, a state ban on assault weapons or a state “good cause” requirement for attaining a concealed carry license, would face steep uphill battles with the court and could very likely be struck down, much like this week’s abortion restrictions. In the event that that does happen, I suspect we will see a reverse reaction from the Democrats who are praising the court for pushing back on state abortion laws.
Whatever your partisan affiliation, it is worth considering the overarching constitutional principles involved in any given Supreme Court precedent. Should the high court be able to roll back state health regulations whose efficacy was at least debatable? If your answer is yes, logical consistency should encourage you to apply this same logic to the court’s consideration of state-level gun control.
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Note: An earlier version omitted that the Ninth Circuit reconsidered its decision and issued a new one upholding the good cause requirement.
Kayleigh McEnany is a CNN commentator and supporter of Donald Trump. She graduated from Harvard Law School with a Juris Doctor. She received her B.S. in International Politics from Georgetown University’s School of Foreign Service and studied politics at Oxford University. The views expressed in this commentary are her own.