In the Dobbs case (overturning the Supreme Court’s Roe and Casey holdings), a majority of the court held that the Constitution does not expressly confer a right to abortion, that so-called implicit rights to “liberty” or “privacy” do not give a woman the right to an abortion, particularly when the claimed right is not deeply rooted in the nation’s history.

In what has come to be called the “originalist” view of constitutionally conferred rights, the majority looked for express language conferring individuals with a right to abortion – none was found. They were unmoved by the dissenting justices’ stare decisis arguments supporting a right that the majority held never existed.

A day earlier, however, in New York State Rifle & Pistol Association, Inc., v. Bruen, the same majority ignored “originalist” principles. Striking down New York state’s gun regulation, they sustained an individual’s right to carry a concealed weapon, citing D.C. v. Heller and McDonald v. Chicago (cases that accorded individuals an almost-unfettered right to bear arms).

But the Constitution’s Second Amendment confers no such right on an individual. Read it: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The amendment confers the right to bear arms on militias and “the people” collectively (presumably through police forces and armies). But it confers no right on an individual. An “originalist” court, one without a political agenda, would have sustained New York’s gun regulation. The present court (mistakenly) did not.

Orlando Delogu
Portland

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