After the U.S. Supreme Court’s conservative majority struck down New York’s concealed carry gun law and revoked women’s right to abortion last week, what role is left for federal courts in the Second Amendment and abortion arenas in the future?
The bottom line of the two rulings continues to drive media headlines, but less attention has focused on what the conservative majority said courts must do when they confront again—as they inevitably will—challenges to restrictions on guns and abortion.
That more challenges are coming in the Second Amendment area was seen almost immediately after President Biden last week signed into law a bipartisan package of gun-related measures responding to the crisis of mass shootings in America.
The gun rights group, Gun Owners of America, quickly released a statement saying: “The fight has just begun, and GOA and our partners stand ready to defeat this unconstitutional package in court.”
In its 2008 landmark decision in District of Columbia v. Heller, the 5-4 majority relied on text, history, and tradition to define the Second Amendment right as guaranteeing an individual right to possess a firearm in the home for self-defense. Under that approach, it struck down the District’s gun restrictions. The majority did not apply the usual approach taken by the Supreme Court itself and federal courts when weighing the constitutionality of laws.
The usual approach, at least since the mid-20th century, had been to test government regulations or restrictions burdening constitutional rights under one of three levels of scrutiny. The first and most exacting review is strict scrutiny. The government must have a compelling interest and show that the means chosen by the government are narrowly tailored to achieve that interest. Laws discriminating on the basis of race undergo strict scrutiny. The second review is intermediate, or heightened scrutiny. The government has a lesser burden and must have an important or substantial interest and the means chosen are no more burdensome than necessary. The third and easiest review for the government is rational-basis scrutiny. Under rational basis, the government must have a legitimate interest and there must be a rational connection between the means chosen to achieve it.
After the 2008 Heller decision, most federal courts have applied what Justice Clarence Thomas in the New York decision called a two-step framework for analyzing Second Amendment challenges—a combination of history and intermediate, or means-end, scrutiny. The two-step approach generally has been very deferential to the government, resulting in the upholding of gun restrictions.
In the New York decision, Thomas said the two-step approach was wrong. There is now only one step.
“In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Thomas wrote. “To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
The dissenters, led by Justice Stephen Breyer, said Thomas’s “history alone” test was rigid and “deeply” impractical.
“It imposes a task on the lower courts that judges cannot easily accomplish,” Breyer wrote. “Judges understand well how to weigh a law’s objectives (its ‘ends’) against the methods used to achieve those objectives (‘its means’). Judges are far less accustomed to resolving difficult historical questions. Courts are, after all, staffed by lawyers, not historians.”
The history test, he added, raised a host of “troubling” questions, including whether courts have the resources to undertake exhaustive historical analysis in every gun case; which historians have the better view of close historical questions, and will the meaning of the Second Amendment change if new historical evidence becomes available.
Regardless of the dissenters’ concerns, the new test is history alone, and governments will have a much more difficult, if not impossible, task defending gun restrictions going forward.
There is a new test that courts must apply in the abortion context as well. Under the Supreme Court’s landmark abortion rights decisions—Roe v. Wade and Planned Parenthood v. Casey—states could not ban abortion before viability of the fetus, generally 22-24 weeks of pregnancy. But they could regulate abortions as long as those regulations did not impose an undue burden on (a significant obstacle to) a woman’s access to abortion.
Justice Samuel Alito Jr., writing for the majority in Dobbs v. Jackson Women’s Health Organization, said that because abortion is not a fundamental constitutional right, the test announced in the Casey decision 30 years ago is no longer the test. Instead, rational-basis review, the lowest constitutional scrutiny, is the test.
“A law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity,’” Alito wrote. “It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
Alito then went a step further and listed legitimate state interests, including “respect for and preservation of prenatal life at all stages of development, protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.”
The rational-basis test has been called “no scrutiny” by many scholars. The Dobbs dissenters in a joint dissent said the ultimate impact of the test will be “across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.”
The nation is likely to see rather quickly how the courts apply these new tests as groups long involved in the gun and abortion issues prepare for a new phase in those wars.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
