Guns and Abortions

August 7th, 2014

In her column, Linda Greenhouse is intrigued that a federal district judge analogized the right to guns to the right to abortion.

Just suppose, Judge Thompson wrote, that the justices were to recognize an individual right to keep a gun at home for self-defense. (As of course the court did, six years ago in the Second Amendment case, District of Columbia v. Heller.) Then suppose that sellers of firearms and ammunition were regulated by the state to such an extent that there were only two vendors left. “The defenders of this law would be called upon to do a heck of a lot of explaining,” Judge Thompson said, adding, “and rightly so in the face of an effect so severe.”

Guns and abortion? That’s a pairing no previous judicial opinion has made. “At its core, each protected right is held by the individual,” the judge explained. “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.”

Perhaps no judge has made this point before. But I did.

In my article on 3D Printed Guns, I reason from the Court’s abortions precedents to explain why the right to bear arms must be coupled with the right to buy and sell guns. You can’t exercise the 2nd Amendment right to keep and bear arms alone.

In Planned Parenthood v. Danforth, physicians at Planned Parenthood had standing to challenge abortion regulations. It was not asserted that there was a constitutional right to provide abortions, but rather that restricting the ability to provide them infringes on the core constitutional right to terminate a pregnancy. In this sense an individual right is coupled with a constitutional guarantee of the provider of the right. The right to abortion would be meaningless if doctors were prohibited from providing them. In American Booksellers Association v. Hudnut, book sellers had standing to challenge a law that criminalized the sale of “pornography.” There is no constitutional right to sell books (outside of the liberty of contract), though censorship of “pornography” restricts the First Amendment’s guarantee of free speech of those selling books. In a similar fashion, the Court has construed a freedom of association from the First Amendment rights of freedom of speech, assembly, and other constitutional guarantees.

As a matter of first principles, the primary mechanism that allows people to keep and bear arms is the threshold ability to acquire it from someone else. Acquiring a gun entails two separate rights—the rights of the buyer (protected in Heller) and the rights of the seller (implied in Heller). A constitutional right to bear arms, without a complementary right to acquire (buy and sell) arms, would be meaningless. If the former is protected, and the latter is banned—the Second Amendment would cease to even be a “parchment barrier.”

Interestingly enough, the DOJ has taken the position that the Second Amendment does not, in the least protect the ability to buy or sell guns. Only to bear guns. Where you obtain those guns from, is not the government’s concerns. Eventually, the courts will have to address this issue.

And for what its worth, the City of Chicago tried to shut down all firing ranges in city limits–a bizarre requirement because one needed firearm training to obtain a license. This is exactly the type of horrible scenario Greenhouse envisioned if a state banned all gun stores. In Ezell v. City of Chicago, the 7th Circuit found these regulations unconstitutional. Judge Sykes’s opinion for the court declined to adopt Planned Parenthood’s “undue burden test,” but instead adopted the inquiry from the First Amendment context:

The district court specifically decided against an intermediate standard of scrutiny but did not settle on any other, then sided with the City “even if” intermediate scrutiny applied. A choice must be made. The City urges us to import the “undue burden” test from the Court’s abortion cases, see, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876-79, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635, 128 S.Ct. 2783; McDonald, 130 S.Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second 707*707 Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n. 4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L.REV. at 1449, 1452, 1454-55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L.REV. at 1376; Winkler, Heller’s Catch-22, 56 UCLA L.REV. at 1572.

Therein lies a key difference from the 2nd Amendment, and the right to abortion, that may explain the court’s analysis. The former is enumerated. The latter is not.

Update: My colleague Prof. Mike O’Shea points out that in Nordyke v. King, Judge O’Scannlain for the 9th Circuit directly linked abortion and gun rights  (on pp. 30-32).

The Nordykes counter that the Ordinance indirectly bur- dens effective, armed self-defense because it makes it more difficult to purchase guns. They point to case law on the right to sexual privacy as an analog. In Carey v. Population Ser- vices International, 431 U.S. 678 (1977), for instance, the Supreme Court measured state regulations limiting access to contraceptives by the same yardstick as they would a total ban on contraceptives. See id. at 688. Just as the Court held that “[l]imiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives,” id. at 689, so the Nordykes argue that limiting the availability of firearms burdens their right to keep and bear arms for the pur- pose of self-defense.20

But “not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 873 (1992) (joint opinion of O’Connor, Kennedy & Souter, JJ.). Indeed, “[n]umerous forms of state regulation might have the inciden- tal effect of increasing the cost or decreasing the availability of medical care . . . for abortion,” for instance. Id. at 874. Even though the Supreme Court has recognized a right to an abortion, it has approved some of those regulations.

The Court has also held that the government need not fund abortions, even though women have a substantive due process right to obtain them. See Harris v. McRae, 448 U.S. 297, 315- 16 (1980). In Harris, the Court drew a crucial distinction between government interference with activity the Constitu- tion protects and the government’s decision not to encourage, to facilitate, or to partake in such activity. “Although the lib- erty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions,” Harris declared, “it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that free- dom.” Id. at 317-18.21 If we apply these principles here, we conclude that although the Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property