At present, as John said, those are guaranteed constitutional rights, to the limited extent that the Supreme Court has recognized them as such.
Yes, a new and more conservative Court could say, in effect, “Actually we think the previous Court was wrong about that”, and re-interpet the right out of existence. Just as, for example, Lawrence v. Texas interpreted into existence the right to have consensual gay sex in private, on the grounds that the earlier decision Bowers v. Hardwick (no snickering please) had too narrowly construed the liberties protected by the due process clause of the 14th Amendment.
But on the whole, the Court takes fairly seriously the concept of what I believe the legal eagles call stare decisis, meaning that they shouldn’t just reverse previous decisions for the hell of it.
Mind you, personally it wouldn’t surprise me at all if a Trump SCOTUS majority were to reverse Roe v. Wade (abortion rights) or Lawrence v. Texas (gay sex rights) or Obergefell v. Hodges (same-sex marriage rights) or all of the above. But IANAL and there may be jurisprudential reasons why that possibility, or some part of it, is unlikely. At the very least, they’d have to scrape together some kind of constitutionally credible argument in favor of doing so.
Yeah, I kinda think that it is within their grasp, in one way or another. Just like those hearings, and those marches, it’s a nice effort but not even likely to slow the train down, I’m afraid.
Protocol doesn’t seem to phase them, I doubt much else is going to either. So…
I’m thinking my point still stands, wouldn’t it have been better to have let a few states make this shift than to have the whole country be forced to?
Conservatives feel roughly about gun rights like liberals do about abortion or gay rights. It’s a fundamental right and we’re not really ready to just abandon the minorities in California and New York on this issue. They’re not ready to abandon their minorities in Kansas or Idaho on the issue of abortion either. In both cases, California and New York try to push the limit of restriction right up to the edge of what the courts will allow, and so do Kansas and Idaho (just for example, I don’t actually know if these particular states push the hardest on abortion restrictions / obstacles).
I think you’re still not getting how the structure of constitutional rights vs. legislation works.
A. You can’t voluntarily “let” individual states opt out of upholding constitutionally guaranteed civil rights. If being able to choose an abortion is a constitutional right, there’s simply no way in US law to allow, say, Utah to ban abortion. Similarly, if individual gun ownership is a constitutional right, there’s simply no way to allow California, say, to ban guns.
If it were decided that these or similar freedoms were no longer constitutional rights, that wouldn’t automatically flip their legal status at the federal level. It would then be up to the individual states to decide what to legislate concerning abortions, guns, etc., since they would no longer involve protected constitutional rights.
The same-sex marriage issue is murkier because of the so-called “full faith and credit” clause that requires states to recognize marriages, etc., that were legally contracted in other states.
And there’s the possibility of federal legislation on any such issue being passed that overrides state legislation, as with the Clinton-era Defense of Marriage Act. But merely changing the constitutional-right status of any such issue doesn’t automatically put such legislation in place.
By default, if any currently recognized constitutional right becomes a non-right due to a subsequent Supremes decision, the responsibility for legislating about it goes back to the states.
Somewhat misleading analogy, though (and I’m guilty of using it too), since I don’t know of any liberal state legislature, not even CA or NY, that actually wants to ban guns outright. But there are plenty of conservative state legislatures that would really like outright bans on abortion.
Perhaps I’m missing some nuance, but ISTM that the OP contains a fundamental contradiction. By the very nature of what a nation is, it must embody a common set of values and principles on at least the most truly fundamental issues. It’s the agreement on these principles that creates the bonds of unity. If every state goes off in its own direction with respect to issues that many regard as foundational, then what does it even mean to have a “country” that you are presuming to unite? Surely a country is something a lot more than just a loose federation of economic convenience.
I’m sorry, I’m really not very up-to-speed on the particulars of the abortion culture wars. How did you determine that plenty of conservative state legislatures would really like outright bans on abortion? Did they pass resolutions stating that? Is it just that they, at one time (presumably pre-Roe), had such a ban in place?
True, but throughout most of that time, until quite recently, it was a vastly different society, with different values and mores and different scientific understanding and medical technology. Similarly to how blacks weren’t a “problem” until those pesky civil rights activists got all uppity, or gay rights wasn’t a “problem” until recent years – of course it wasn’t a problem: gays were so far underground you couldn’t get them out with dynamite. What’s happening now is that society is undergoing rapid changes in areas like civil rights for a whole spectrum of previously oppressed minorities, but more so in some states and population centers than in others. I don’t claim to know how one deals with this in terms of national unity, but saying “it was never a problem in the past 200 years” isn’t useful.
You tried to argue from definition and yet clearly that definition applied to the US in the past. You seem to be assuming that once you let the states have more freedom in how to operate that they will never “progress” beyond the point where they were granted that freedom. And of course I never said “it wasn’t a problem”. I said “it wasn’t a problem in term of us being a country”. We were every bit as much of a country 50 years ago as we are today. Every county has problems, always had and alway will. But that doesn’t make it “not a country”.
I’ve been tempted to agree with OP that increased states’ rights might be good for the Union. I think Roe v Wade and Obergefell v. Hodges were activist stretches. I’d be happy if these decisions were rescinded (along with McDonald v. Chicago ).
But there are still major problems in OP’s proposal. For one thing, states would not be able to outlaw gay marriage even without the Obergefell v. Hodges ruling. Gay marriages from other states would be protected by Article IV: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
More importantly as others point out, to give right-wingers complete control of the Flyover states would be to turn our backs on millions of citizens: recall that the four biggest cities of Texas all have Democratic mayors, as do other very large “red-state” cities like Phoenix, Indianapolis, and Charlotte N.C. (And, to take the opposite perspective, citizens in rural California and rural New York do want their guns!)
They’re Republicans. The Republican Party platform supports a fetal right to life “that cannot be infringed”. Ergo, no abortions. At all.
There are a very few pro-choice and a few more pro-exception Republican politicians around, but AFAICT the vast majority of them endorse the Republican platform plank. It is indubitable that if Roe v. Wade is overturned, several Republican-controlled state governments will ban abortion altogether.
In contrast, I don’t know of any Democratic legislature (or even any individual Democratic politician) who would seriously advocate banning individual gun ownership altogether if the Second Amendment didn’t exist.
That’s a surprisingly-vague position for you to take: “There are a very few pro-choice and a few more pro-exception Republican politicians around, but AFAICT the vast majority of them endorse the Republican platform plank.” You know that pollsters actually take surveys on exactly this sort of thing? For example, here is one from Pew that shows that 38% of Republicans believe abortion should be legal in all / most cases (side note: I really wish they’d break out the all vs most positions).
Given the diversity of positions on abortion amongst Republicans, I certainly find it “dubitable” that any Republican-controlled state government would institute a complete ban on abortion. Your party-platform-says-so evidence seems very weak to me. Perhaps you need to update your understanding of Republicans’ supposed lock-step absolutist position on abortion?
Yup, but that’s Republican voters, who don’t have to pass anti-abortion litmus tests to get elected. I agree that voters who identify as Republican have a broad spectrum of views on abortion.
Republican legislators, on the other hand, are on average much more stringent, at least in many states in the Midwest and South. (On reflection, I’ll back away from lumping elected Republicans in the liberal coastal areas together with those elsewhere.)
But I maintain that you can’t find any Democratic side of a state legislature that supports restricting gun ownership to anywhere near the extent that the Republican majority of the Ohio legislature, for example, supports restricting abortion. Heck, they recently passed a bill banning all abortions after about 6 weeks, and that’s with Roe v. Wade protections still in place. Do you seriously doubt that if they didn’t have Roe v. Wade to worry about, they wouldn’t follow through on their party plank (state party as well as national) to eliminate all abortion entirely?
Please show me the plank of any Democratic party platform that comes anywhere near endorsing a similarly draconian ban on gun ownership.
Might be interesting to see the U.S. internally reorganize, let the state lines be redrawn according to popular vote. Instead of fifty, you could probably get that number down to ten or so.
Or a less dramatic but potentially as-radical idea would be to adjust the number of House seats to more accurately reflect populations, ditching the current limit of 435. Wyoming has a population of just under 600,000, so if they get one congressman, California should get around 64 (instead of their current 53).
And of course, the drawing of district lines cannot be left to elected officials. That’s just classically dumbass.
Republicans as a political force are very serious about abortion bans. The fact that about a third of Republican-identifying voters may support pro-choice positions doesn’t do anything to dilute that if they don’t vote against candidates who favor abortion bans.
Just for truth’s sake, the [Ohio bill you referenced](file:///C:/Users/bltenney/Downloads/hb493_06_EN.pdf) “does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency exists that prevents compliance with that division”. While it would probably ban “most” abortions after 6 weeks, it’s certainly not “all”, and even that “most” would be contingent on how willing physicians might be to declare a “medical emergency”. I suspect some of them would do it as a matter of course, and abortions would continue largely unabated in their practices, not unlike how some physicians give medical marijuana prescriptions out for … not sure how to put this … lackluster reasons.
On the gun side, the Massachusetts AG recently pushed for a gun ban that I’d call “similarly draconian”, although it’s admittedly difficult to correlate the nuances of abortion law with gun laws. I (and many other gun owners) thought the NY SAFE Act was draconian. The reason we have the Heller and McDonald decisions are because Democrats in Washington DC and Chicago passed and maintained complete bans on handgun ownership. Do you not think those were “draconian”? If those SCOTUS decisions were overturned, is there any reason to think that DC and Chicago wouldn’t go back to their gun-banning ways?
:dubious: You’ve slid from state legislators to municipal governance, and that’s not what I asked you. Where is there a Democratic side of a state legislature that, according to you, would be willing to impose similarly draconian bans at the state level?
(And by the way, if you haven’t already, I’d be glad if you’d check in to the concurrent “women’s march accomplish?” thread over in Elections and explain what you actually meant about the desirability of locking up non-violent Trump protestors on flimsy pretexts.)
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They’re Republicans. The Republican Party platform supports a fetal right to life “that cannot be infringed”. Ergo, no abortions. At all.