Supreme Court Justice Stephen Breyer used logic frequently employed by pro-gun advocates to help justify his majority opinion in the Texas abortion clinic case decided Monday.
As John McCormack reported, the Court struck down a Texas statute that compelled, in part, abortion clinics to upgrade their facilities to match the standards of surgical centers. Such a requirement calls to mind the story of Philadelphia abortionist Kermit Gosnell, who operated a squalid practice with dangerously narrow hallways and missing keys to the emergency exit. Proponents of the Texas statute argued that the law was intended to prevent the operation of such facilities.
“If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes. And if there were any similarly unsafe facilities in Texas, [the statute] was clearly intended to put them out of business,” Justice Samuel Alito wrote in his dissent.
Breyer countered that argument with familiar reasoning—to gun rights supporters who oppose new gun control measures (emphasis mine):
“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.”
Let’s switch the issue from abortion regulations to firearms restrictions. In this circumstance, progressives typically aligned with Breyer—a pro-gun control justice who dissented when the Court struck down the D.C. handgun ban—actually reject the reasoning he used in the Texas abortion clinic case. In the wake of recent domestic mass shootings, it’s pro-gun rights conservatives who have adopted Breyer’s thinking and opposed calls for new restrictions on the grounds that “determined wrongdoers … are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”
For example, take Sen. Marco Rubio’s response to new calls for gun control (emphasis mine in all): “First of all, the only people that follow the law are law-abiding people. Criminals, by definition, ignore the law. You can pass all the gun laws in the world—like the left wants—criminals are going to ignore it because they are criminals.”
Here is the writer Charles C.W. Cooke’s response: “To pass a law is not to achieve its aims, and one suspects that any attempt at gun control in America—which outlaws and the deranged will naturally ignore—would be destined to be filed next to Prohibition and the War on Drugs in the annals of man’s folly.”
And the opinion of gun rights advocate John Lott and R Street Institute president Eli Lehrer, which predates recent mass shootings, is this: “Everyone wants to take guns away from criminals. The problem is that law-abiding citizens obey the laws and criminals don’t.”
This could go on for a while. But the point is made. The claim that “taking [x] action is fruitless because criminals will disobey it anyway” has been used by people of different ideologies to achieve a particular end. Whether this smacks of hypocrisy is for a philosophical debate about the merits of instrumentalism.
For the purposes of comparing Rubio and Breyer, it’s useful to remember that one is a lawmaker and one is a judge. No one ever accused a legislator of “legislative activism”—that’s just politics. Judicial activism, however, is another matter entirely.
