Justice Brett Kavanaugh noted in a concurrence joined by Chief Justice John Roberts, moreover, that while states may not impose restrictions that prevent “ordinary, law abiding citizens” from carrying a gun to defend themselves, states can still enact rigorous requirements for a public carry permit, such as stringent background and mental health records checks and completion of regular training courses.
Another promising reform for states to consider would be to require gun owners to possess firearm liability insurance. Not only would such a requirement ensure that victims of gun violence can recover for their losses and “provide financial incentives for responsible arms carrying,” but it also draws strong historical support from a host of 19th century “surety laws” recognized in the court’s opinion.
And on Friday, the court eliminated the right to abortion. Because of the sweeping nature of the court’s decision, there are some limits on what pro-choice states can do alone. But at a minimum, lawmakers should act vigorously to ensure that abortion providers are able to serve out-of-state patients unable to obtain care in their home states. Connecticut and New York have already passed such laws; others should follow suit.
As Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan noted in their dissent, “it is women who cannot afford” to travel to other states “who will suffer the most.”
To protect these patients, lawmakers must act at the national level. So the Biden administration should argue that Food and Drug Administration rules permitting the use of mifepristone to terminate a pregnancy override contrary state laws. Promisingly, Attorney General Merrick Garland issued a statement on Friday advancing precisely this approach. Congress should also continue working to enact the Women’s Health Protection Act to enshrine a right to abortion as a matter of federal law, even though the filibuster remains an obstacle.
Last fall, Justice Sotomayor, for whom I clerked in 2013-14, predicted that there would be “a lot of disappointment in the law” in the current court term. Now we see why. For understandable reasons, some critics of the current court have girded for a battle to expand the number of justices. Maine has shown another promising path. Sometimes, the best way to protect against overreaching by the conservative court is through good old-fashioned lawmaking.
Aaron Tang (@AaronTangLaw) is a law professor at the University of California, Davis, and a former law clerk to Justice Sonia Sotomayor.
