As I’m writing this, news outlets and social media are aflame with news of the Supreme Court’s ruling that gay couples have the same right to marry that straight couples have. There are many implications in this, but for our purposes here, let’s look at how this may affect gun rights.
Justice Kennedy’s majority opinion bases the decision on the Fourteenth Amendment’s due process and equal protection clauses. Of particular interest is the following statement:
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v.
Louisiana , 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird , 405 U. S. 438, 453 (1972); Griswold
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Connecticut , 381 U. S. 479, 484–486 (1965).
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.
Now, “most of the rights enumerated in the Bill of Rights” doesn’t at present include the Second Amendment. But the ruling gives hope that, just as the McDonald case incorporated the Second against the states, the Fourteenth will eventually be seen as including the Second.
The logic here shouldn’t be hard to understand. If all states must respect marriage licenses issued by any state—licenses that permit the exercise of one protected right, however troubling that idea is—on what grounds can states refuse to honor another class of license that permits a different protected right? In other words, it seems Justice Kennedy just made sure my carry license applies in the entire United States.
Gun control advocates often bring up Scalia’s writing in the Heller ruling that declares that gun rights are not unlimited. However, there may be a ray of sunshine, given Scalia’s puckish nature. He warned in the Lawrence (2003) ruling that striking down the anti-sodomy laws of Texas would lead to legalizing same-sex marriages. Perhaps he’d be willing to use a gun-rights ruling as a way of getting back at the liberals on the Court, using the same language, “certain personal choices central to individual dignity and autonomy,” to say that our right to self-defense does not end either at our own property lines or at state borders.
The typical response to this is that gun rights affect other people. Indeed. But so does marriage. By definition, marriage is something we do with others. And the numbers about domestic violence are shocking. Our personal choices, whether to share our lives with a partner or to protect our lives with firearms, involve the potential for harm and abuse. But if we decide that rights can only be exercised if we like all the potential outcomes, we deny the most basic element of rights: individual choice. When I exercise a right, I’m expressing who I am.
I celebrate this ruling. I’ve known many gay or lesbian couples who love each other as deeply as the best straight couples, who are some of the best parents I’ve met, and who are some of the best people, period. I also celebrate the concept that individual choices are best left to individuals. That is something that all of us who support gun rights should value.
The views and opinions expressed in this post are those of the author’s and do not necessarily reflect the position of Guns.com.
