Justice Breyer’s Abortion Reasoning as Applied to Gun Control

STOP_signSupreme Court Justice Stephen Breyer delivered the court’s majority opinion today in Whole Women’s Health v. Hellerstedt, a case in which the plaintiff challenged the “admitting-privileges” and “surgical-center” requirements that were part of legislation enacted by the Texas Legislature in 2013. Those requirements, the Legislature said, were to ensure safer practices by Texas abortion providers and prevent atrocities of the sort carried out by Dr. Kermit Gosnell, a physician convicted of first-degree murder in Pennsylvania because of his abominable–there’s no other word–abortion practices.

I won’t dwell on the Gosnell case. He’s now in jail, as he should be. What’s interesting to me is a bit of reasoning Justice Breyer used to answer the dissent in the Hellerstedt case. His discussion of Gosnell begins on page 27 of his opinion. After a brief, quite sanitary catalogue of Gosnell’s crimes, Bryer writes:

Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.

Now imagine, if you can, Breyer writing the following:

Omar Mateen’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.

I can’t imagine it. Even though the constitutional right to abortion had to be “found” in the Constitution, while the constitutional right to keep and bear arms is explicitly stated in the 2nd Amendment, the first right is in favor, the second is not. Therefore, though there is little if any evidence–and that, disputed–that additional background checks, secret terrorist watch lists, and assault weapons bans would have prevented recent mass shootings or will prevent future ones, those proposed “extra layer[s] of regulation” will withstand judicial scrutiny, if Justice Breyer has anything to say about it. At least that’s how I’ll be betting.

While we’re at it, let me share another item from the news. The other day I was listening to the Diane Rehm Show as I drove south on I-15. They were discussing gun control in light of the recent tragedy in Orlando. The host read the following e-mail from a listener in Texas

We have another email also from Brandy in Texas, who writes, many shooters, including the Orlando shooter, had domestic violence in their past, and most victims of mass shootings are women and children shot in domestic violence incidents. Can we pass a federal law to prevent domestic violence offenders from getting or keeping guns?

I almost wrecked. The e-mail captured what for me is the most frustrating thing about the gun control debate: Those in favor know little or nothing about existing gun control laws. Fortunately, Adam Winkler, a law professor at UCLA who is in favor of some new gun control measures, took advantage of this particular teaching moment:

Yes, we do have federal laws already on the books to stop domestic abusers from possessing firearms. You can, if you are subject to domestic violence restraining order, under federal law, then you are prohibited from possessing a firearm. You can also have your firearm taken away from you on a temporary basis after what’s known as an ex parte hearing. That’s a hearing in which the person who’s effected does not get a say or does not have representation.

And so, we do have laws in effect. I believe that in the current situation with regards to Orlando, and I could be wrong about the facts, but my understanding is is that he was never charged and convicted with any crime of domestic violence.

And was not subject to any kind of domestic violence restraining order. So, it might not have caught him, but it is right to point out that when there are certain kinds of violence, that if we see evidence of, we should take the guns away from that person because they’re likely to engage in more serious forms of violence with that firearm.

Winkler is correct. Section 922 (d)(8)-(9) and (g)(8)-(9) does exactly what Winkler says: People who have been charged with domestic violence, including harassment, stalking, threatening, and the like, AND who have at least had an opportunity for a hearing AND who, as a result, either are subject to a court order related to that behavior or have been convicted CANNOT possess firearms.

Of course, that brings us full circle. According to Breyer–and Breyer’s correct in this–“Determined wrongdoers, already ignoring existing statutes and safety measures [such as laws against stalking and domestic violence], are unlikely to be convinced to adopt safe practices by [Section 922 or by] a new overlay of [gun control] regulations.” And that’s the problem gun control can’t solve.

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