David L. Sloss (Santa Clara University - School of Law) has posted Guns, Abortion, and Courts (Santa Clara Law Review, Vol. 56, (Forthcoming)) on SSRN. Here is the abstract:
The Supreme Court decided both Dobbs v. Jackson Women’s Health and New York State Rifle v. Bruen in June 2022. Bruen involves gun rights and incorporation doctrine. Dobbs addresses abortion rights and substantive due process (SDP). However, the doctrinal distinction between SDP and incorporation is untenable. Both doctrines are rooted in the Fourteenth Amendment Due Process Clause; neither finds support in the text or original understanding of the Fourteenth Amendment.
The Court applies the same historical test for both SDP and incorporation cases to determine which rights the Due Process Clause protects. Both doctrines address legal issues where states traditionally enjoyed broad autonomy. The Court’s historical test fails to provide a principled justification for the central feature of both doctrines: the decision to replace a consistent historical tradition of state autonomy with a new federal constitutional rule that mandates national uniformity.
Before WW II, the Court treated SDP and incorporation as a single doctrine; it invoked natural law to justify that doctrine. This article contends that natural law provides the only theoretically coherent rationale for the doctrine. The article defends a natural law test linked to the human rights principles in the Universal Declaration of Human Rights.
The human rights (HR) test offers three main advantages over the historical test. First, the HR test is more compatible with the constitutional principles of dual sovereignty and legislative primacy. Second, the HR test is less subjective and less prone to manipulation than the historical approach. Third, the natural law, HR theory provides a principled justification for the decision to replace a historical tradition of state autonomy with a uniform, federal constitutional rule. Under the HR test, the right to bear arms does not qualify as a fundamental right. In contrast, there is a plausible argument that a woman’s right to terminate her pregnancy is a fundamental right, but that argument is not a slam dunk.
