Will Alito apply leaked draft abortion reasoning and vote to uphold New York’s concealed carry gun law?

There has been a lot of debate about the implications of Supreme Court Justice Samuel Alito’s leaked draft opinion for the constitutional right to abortion. But the draft also has strong implications for another highly politically charged case the court is expected to decide later this month: the challenge to New York’s concealed carry law in the midst of the continuing awful and unacceptable nightmare of gun violence in this country.

The New York law requires individuals who wish to carry a concealed firearm to show a special need and obtain a permit. It is a critical measure to increase gun safety and reduce gun deaths and injuries in New York.

If Alito is consistent, and he applies the reasoning and logic of his leaked draft, he should vote to uphold the New York law.

When it comes to abortion, Alito says the court generally should not stray from the text of the Constitution. Well, the text of the Second Amendment does not say anything about the concealed carry of a firearm, let alone create a right to do so:

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Alito writes, in the context of abortion, that if the court departs from the constitutional text it should look to historical evidence of whether a right is “deeply rooted in [our] history and tradition” and “whether it is essential to our Nation’s ‘scheme of ordered liberty.’” Well, as Justice Clarence Thomas has explained, “traditionally” states have “prohibit[ed] the carrying of weapons in a concealed manner” and those laws “neither prohibit nor broadly frustrate any individual from generally exercising his right to bear arms.” The late Justice Antonin Scalia similarly wrote in his decision in Heller, the case that in 2008 established the right to have handguns for self-defense in one’s home: “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” And then-judge Brett Kavanaugh, before his elevation to the Supreme Court, emphasized that “Heller affirmatively approved . . . concealed carry laws.”

In fact, by Alito’s logic in his leaked draft, the Second Amendment should not apply to state laws at all. In 2010, the court found the liberty clause of the Fourteenth Amendment makes the Second Amendment applicable to the states even though it does not mention the Second Amendment. But when it comes to abortion, Alito’s draft says the liberty clause cannot include the right to abortion because it is not mentioned in the Constitution or fourteenth Amendment. Trying to justify this distinction, Alito’s draft observes that at the time the Fourteenth Amendment was enacted in 1868, “at least 22 of the 37 states protected the right to keep and bear arms.” But that hardly shows it was considered “essential to our Nation’s scheme of ordered liberty” since, by his own telling, 15 states (more than 40 percent) did not protect it.

Alito maintains that when it comes to abortion, “the people of the various States may evaluate [the] interests differently” and should be allowed to do so and regulate or allow abortion to the extent they see fit. He says the court should not “short-circuit” the “democratic process by closing it to the large number of Americans who dissented in any respect from Roe [v. Wade].” If so, the right of New Yorkers to limit the concealed carry of firearms should also not be foreclosed. In fact, there is far more reason to allow New Yorkers to decide for themselves in the context of firearms because the text of the Second Amendment expressly states its purpose is to protect “the security of a free State.” Textualists like Alito should agree, then, that each state should be free to decide how to protect its “security,” including by regulating concealed carry.

Alito says the right to abortion is different from other rights because it destroys what Roe calls “potential life.” By that logic, the Second Amendment is even more different from other rights. There is no question that guns are used to kill and injure untold numbers of people every day. Alito also says the court does not have “the authority to weigh” the arguments for a woman’s right to choose to have an abortion against “fetal life” and should not “usurp the power to address a question of profound moral and social importance.” If so, the court surely cannot weigh the arguments for the right to live free of death and injury caused by concealed firearms against the arguments for freedom to carry them, a question of profound moral and social importance.

Alito argues, when it comes to abortion, “it is telling that other countries almost uniformly eschew” the “viability line,” and this country should not have a rule that “allow[s] the States less freedom to regulate abortion than the majority of Western democracies enjoy.” It should be even more “telling” for Alito that virtually every Western democracy either forbids or severely restricts not just concealed carry, but firearms more generally. New Yorkers should not have “less freedom” to do so.

Justice Amy Coney Barrett told a University of Louisville audience last year that her “goal today is to convince you” the court rules “based on the law, not politics.” If Alito and any other justices who sign on to his draft opinion on abortion are consistent in defining “the law,” New Yorkers should be able to sleep peacefully at night free of worry about the death, injury and other heart-breaking consequences that would follow if New York is not permitted to continue to limit the proliferation of concealed firearms under its current law.

Michael J. Dell was a founding director of Americans for Firearm Injury Reduction in Medicine. He co-authored an amicus brief for the American Medical Association, the Medical Society of the State of New York, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry in support of New York’s concealed carry law. He also represents women who seek to protect their constitutional right to abortion.