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Tue Nov 26, 2019, 10:17 PM

Conservative Hypocrisy Makes Its Case at the Supreme Court

What a time to be a conservative movement lawyer. Emboldened by the confirmation of Justice Brett Kavanaugh, lawyers on the right have asked the Supreme Court to push the law beyond existing boundaries on a range of issues. From immigration, abortion and the use of public funding on religious schools to gun rights and L.G.B.T. rights, conservatives are understandably hopeful the newly aligned court will hand down a wave of victories on social issues that divide the nation.

For progressives, this might seem worrisome enough. But there’s a whiff of something even more troubling beneath the surface: raw hypocrisy. In several major cases this term, conservatives are relying on arguments that both they and the court have explicitly rejected as a matter of principle over the last five decades. This hypocrisy presents the Supreme Court with a fundamental challenge. Will the court apply settled law neutrally, even if doing so leads to outcomes the conservative majority disfavors? Or will the conservative majority bend established rules to enable its preferred policy outcomes?

Start with New York State Rifle & Pistol Association v. New York, a case set for argument on Dec. 2. Gun owners in the case are challenging a New York City ordinance that prohibits gun owners with licenses to possess guns only at their homes from bringing their firearms to shooting ranges outside city limits. The gun owners do not argue that the Constitution affords them an express right to bring their guns to shoot at any range of their choosing. They argue instead that the city’s restriction violates an “implied” constitutional right — a right to “acquire and maintain proficiency” in firearms use that is an unspoken corollary to the Second Amendment right to bear arms.

This is a stunning argument. For decades, conservatives have panned the very notion of implied constitutional rights, arguing that the court should stay within the confines of explicit constitutional guarantees. For example, in his 2015 dissent from the decision to uphold a constitutional right to same-sex marriage, Chief Justice John Roberts wrote that, “Allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental’ — and to strike down state laws on the basis of that determination — raises obvious concerns about the judicial role.” A similar concern led five conservative justices to reject an implied constitutional right to education in 1973. Now, the gun activists’ argument raises the unsettling possibility that the court will enshrine a more encompassing theory of constitutional rights for gun owners than for schoolchildren.


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