When we have a Constitutionally-protected right to do X, states can’t make us jump through an excessive number of hoops before we can do X. This is what many states have been trying do when it comes to abortion rights. In its recent ruling against the State of Texas’ attempt to place excessive restrictions on abortion clinics, the Supreme Court once again upheld a woman’s right to decide whether or not to terminate a pregnancy within the lawful period of time specified by the Supreme Court in Roe v. Wade and Planned Parenthood v. Casey.
I applaud this decision. It’s a victory not just for this particular Constitutionally-protected right, but for all our rights protected under the Constitution. Take the right to bear arms. Some states have stricter gun control laws than others. But the Supreme Court, as it has just implicitly reconfirmed, would not allow states to make the purchase and ownership of guns so onerous as to vitiate the Second Amendment for all practical purposes.
But just like the right to have an abortion, the right to bear arms is also limited, no matter where we live. None of the states sanction our ownership of functional M1A2 Abrams battle tanks or A16 fighter aircraft. Nor would the Supreme Court overturn federal and state restrictions on private ownership of these and similar “guns.” Not even the NRA — the nation’s powerful gun lobby — has argued for this right.
In short, we live in a country that provides and protects our basic rights, but that also places federal limits on those rights (e.g., the limitation of free speech when it comes to advocating the overthrow of the government). Moreover, our country permits states some, but not absolute latitude to further limit our rights (e.g., the right in some, but not all states to own fireworks or to buy alcohol in grocery stores).
We also live in a country which provides and protects additional rights that go beyond those explicitly enumerated by the Constitution. The Ninth Amendment states that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Surely one of these non-enumerated rights is the right to public safety. The Fourteenth Amendment includes this statement: “…nor shall any State deprive any person of life, liberty, or property.”
Thus if a state were to pass a law permitting ownership of a fully functional tank or jet fighter, the Supreme Court would, I presume, strike down the law based on our as yet non-enumerated right to public safety, lack of which can and does deprive persons the right to life.
In this regard, I would encourage one or more groups who are particularly being targeted by terrorists (and are thus likely to have better legal standing) to sue states for denying them the right to safety by permitting those on the FBI watch list (the Terrorist Screening Database) and particularly those on the government’s Terrorist Screening Center’s No-fly and Selectee Lists (which are subsets of the FBI watch list) to purchase weapons, including the AR-15 assault rife. The AR-15 is the weapon of choice of terrorists who are committing massacres across our country on what has become a routine basis. The suit could also contest the practice by many states of permitting the sale of assault weapons.
But can one or more members of the public sue a state for permitting certain behaviors that infringe on alleged, but as yet non-enumerated rights? They certainly can and have. In Brown v. Board of Education, the Supreme Court barred segregated public education. In so doing, the Court enumerated a new right — the right within certain limits (e.g., geographic location) to equal public education. Roe V. Wade enumerated the right of women to terminate a pregnancy before the point of viability. Griswold v. Connecticut enumerated the public’s right to privacy when it comes to sexual behavior. And Obergefell v. Hodges enumerated our right to marry regardless of sexual orientation. Each of these rights is, in my mind, inalienable. But none rises to the importance of the absolute and equal protection of each citizen’s safety, without which the government is effectively depriving us of “life, liberty, or property” and, thereby, violating the Fourteenth Amendment.