Abortion rights and gun rights

From yesterday’s Planned Parenthood Southeast Inc. v. Strange (M.D. Ala. Aug. 4, 2014) (some paragraph breaks added):

As a trial court in the trenches, this court must remain faithful to the rule of law and not to its own doubts — or convictions — about the correctness of established law. Thus, this court must now apply the principles announced in Casey to determine the constitutionality of the State of Alabama’s recently enacted requirement that all doctors who provide abortions must have staff privileges to perform designated procedures at a local hospital ….

In order to give “real substance to the woman’s liberty,” while at the same time fully honoring the State’s ability to pursue, in good faith, its own acknowledged legitimate interests, this court concludes that it must hold that this requirement is unconstitutional. The evidence compellingly demonstrates that the requirement would have the striking result of closing three of Alabama’s five abortion clinics, clinics which perform only early abortions, long before viability. Indeed, the court is convinced that, if this requirement would not, in the face of all the evidence in the record, constitute an impermissible undue burden, then almost no regulation, short of those imposing an outright prohibition on abortion, would….

[Many pages of analysis omitted.-EV]

In deciding this case, the court was struck by a parallel in some respects between the right of women to decide to terminate a pregnancy and the right of the individual to keep and bear firearms, including handguns, in her home for the purposes of self-defense. At its core, each protected right is held by the individual: the right to decide to have an abortion and the right to have and use firearms for self-defense.

However, neither right can be fully exercised without the assistance of someone else. The right to abortion cannot be exercised without a medical professional, and the right to keep and bear arms means little if there is no one from whom to acquire the handgun or ammunition. In the context of both rights, the Supreme Court recognizes that some regulation of the protected activity is appropriate, but that other regulation may tread too heavily on the right. Compare Heller, 554 U.S. at 626 (“Like most rights, the right secured by the Second Amendment is not unlimited.”) with Casey, 505 U.S. at 876 (“Not all burdens on the right to decide whether to terminate a pregnancy will be undue.”). Finally, as to each right, there are many who believe, as a matter of law, that the Supreme Court’s reasoning in articulating the right was incorrect and who also believe, as a matter of strong moral or ethical convictions, that the activity deserves no constitutional protection.

With this parallelism in mind, the court poses the hypothetical that suppose, for the public weal, the federal or state government were to implement a new restriction on who may sell firearms and ammunition and on the procedure they must employ in selling such goods and that, further, only two vendors in the State of Alabama were capable of complying with the restriction: one in Huntsville and one in Tuscaloosa.

The defenders of this law would be called upon to do a heck of a lot of explaining — and rightly so in the face of an effect so severe. Similarly, in this case, so long as the Supreme Court continues to recognize a constitutional right to choose to terminate a pregnancy, any regulation that would, in effect, restrict the exercise of that right to only Huntsville and Tuscaloosa should be subject to the same skepticism….

Thanks to Robert Dittmer for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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