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Last week, the Supreme Court delivered two blockbuster opinions. The first, New York State Rifle & Pistol Association, Inc. v. Bruen, struck down a New York state law provision that required any person who wished to carry a concealed handgun in public to first demonstrate to a public official that they had “proper cause” to do so for self-defense. In practice, this meant that applicants had to show that they faced a special risk above and beyond the ordinary risks that everyone runs in society. The second, Dobbs v. Jackson Women’s Health Organization, put an end to the forty-nine-year period in which Roe v. Wade (1973) guaranteed a constitutional right to abortion.
The response to both these decisions was strong and emphatic—from both sides. However, because the six conservative justices stuck together for both decisions, the left howled far louder than the right. Sadly, advocates on both sides treated their positions as self-evident truths, ignoring difficult conceptual and administrative challenges. Thus, in Dobbs, there was no middle ground. Forces on the right took great pleasure in concluding that Dobbs is a “triumph of democracy, constitutionalism, and courage,” and that the court rightly rejected living constitutionalism and returned the question of abortion rights to the people. The liberal dissenters asked not whether the people had the right to regulate abortion but rather whether each woman had the right to decide for herself whether to have a baby. By throwing the issue back into the hands of legislatures, the Supreme Court gave only modest comfort to many states, such as Illinois, that decided to protect Roe, while others—like Indiana, Wisconsin, Missouri, and Iowa—sought to reinstate restrictions that could turn the clock back beyond the bad old days before Roe.
Bruen reversed those roles: progressives thought legislative discretion should control, while conservatives took the view that the Second Amendment gives the right to bear firearms strong constitutional protection.