Be Careful What You Wish For: Why Gun Rights Advocates Should Be Rooting for Roe v. Wade

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Thomas G. Becker 
October 28, 2021

After the U.S. Supreme Court declined to stay the implementation of Texas’ new anti-abortion law on September 1, many considered it a near-death blow to Roe v. Wade’s grant of the nearly absolute right of a woman to terminate a pregnancy in the first trimester. The celebrations on one side, and the lamentations on the other, were premature. While this was an ominous omen for Roe, it’s not over. The U.S. Department of Justice has filed suit to strike down the law and on November 1 the Supreme Court will hear arguments in the case. In preparing their constitutional attack on the Texas law, Roe’s proponents should consider recruiting support from a seemingly unlikely source: Second Amendment advocates. Before laughing this idea off, gun rights devotees need to consider the big picture: If Roe is overturned, there is nothing to stop a future Supreme Court from doing the same to its Second Amendment precedents.

The Court’s September 1 order in Whole Woman’s Health v. Jackson was not a final decision on the constitutional merits of Texas’ law. At its core, the 5-4 decision not to stay the law was grounded on the petitioners’ failure to show that, on September 1 (the effective date of the law), there was a “case” or “controversy” for the Court to decide, which is a constitutional prerequisite to the Court’s jurisdiction. No court, including the Supreme Court, makes decisions based on speculative lawsuits; they decide existing cases and controversies rather than preempting them. The Court’s order acknowledged “serious questions about the constitutionality of the Texas law at issue,” and emphasized the order “is not based on any conclusion about the constitutionality of Texas’ law.” The ultimate issue of Roe v. Wade’s vitality remained for a later decision. That may be forthcoming after the November 1 arguments but that’s uncertain, as the original case-or-controversy issue remains, as well as the question of whether the U.S. Department of Justice has standing to challenge the Texas law.

That said, Whole Woman’s Health did not bode well for Roe. But before any opponents of Roe start counting their chickens, remember this: In the 232 years of Supreme Court history, the Court has never overturned a precedent recognizing an individual right under the U.S. Constitution. The Court has overturned precedents that had once denied the existence of individual rights: Brown v. Board of Education in 1954, granting African Americans’ equal access to public schools (overturning Plessy v. Ferguson that set out the “separate but equal doctrine” in 1896); Gideon v. Wainwright in 1963, giving indigent defendants the right to court-appointed counsel (overturning the 1942 case of Betts v. Brady); and Heller v. District of Columbia and McDonald v. City of Chicago in 2008 and 2010, recognizing the Second Amendment creates an individual right to keep and bear arms unrelated to militia service (overturning United States v. Miller, decided in 1939). But the Court has never reversed itself after holding an individual right does exist under the Constitution.

This is what commentators call a “super precedent”: one no one can fathom ever being overturned and, if it ever were, would be a metaphorical 10-point Richter Scale earthquake, forever altering the jurisprudential landscape. If the Court breaks this super precedent by overturning Roe, there’s no going back. Any decision of the Court recognizing an individual right would be in the crosshairs, including the most vulnerable of these: Heller and McDonald, concerning the Second Amendment.

Second Amendment enthusiasts might feel pretty safe right now with the Supreme Court’s current composition. But that will change, either dramatically (with an increase in the number of justices on the Court) or, more likely, over time (with a shift in Court composition). The Charles Evans Hughes Court frustrated FDR’s New Deal for a while, but that changed. The Warren Court was perhaps the most progressive in American history, but that didn’t last when the Burger and Rehnquist Courts redirected things to the center-right. The Roberts Court has maintained a center-right direction, but occasionally has sidestepped to the left with its decisions on same-sex marriage and interpretation of the Civil Rights Act of 1964.

There may be a solid gun-friendly majority on the Court now, but that won’t last forever. When the court shifts, the only deterrent to a progressive majority overturning Heller and McDonald would be the super precedent mentioned above. If that goes by the wayside with Roe v. Wade, it opens the door to a return to Second Amendment gun rights being restricted to militia service.

If you are a strong believer in the Second Amendment guaranteeing an individual right to bear firearms, think long and hard before you join the effort to overturn Roe v. Wade. As the saying goes, be careful what you wish for. You might even think to join the pro-Roe forces, not because you favor abortion rights but because you favor keeping the Court’s super precedent intact. More, abortion rights advocates need to look at using this argument when recruiting amicus curiae (“friend of the court”) support for striking down the Texas law. As another saying goes, politics make strange bedfellows. So does constitutional jurisprudence.

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Author: Tom Becker is a retired lawyer in Des Moines, Iowa. He entered the U.S. Air Force as a judge advocate and retired from the Air Force as a colonel in 1999. He was appointed state public defender for the State of Iowa, heading the agency, and later returned to the Air Force as academic director for the Air Force Judge Advocate General’s School in Montgomery, Alabama. In 2019, he was awarded ASPA’s National Public Service Award. He retired in 2019 and returned to Iowa, where he teaches at Des Moines Area Community College and conducts training for the Iowa State Public Defender System, mentors law students at Drake University School of Law and is president of the Iowa Chapter of the American Society for Public Administration. He graduated from Washburn University in 1974 and the Washburn University School of Law in 1977. He also received an advanced degree in constitutional and criminal law from The George Washington University School of Law. He can be reached at [email protected]

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