Kyle Schmidt

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Strict scrutiny for me but not for thee

In his blog today Glenn Reynolds highlighted the barriers put on the “constitutional right” of hand gun ownership in D.C:

“It took $833.69, a total of 15 hours 50 minutes, four trips to the Metropolitan Police Department, two background checks, a set of fingerprints, a five-hour class and a 20-question multiple-choice exam. Oh, and the votes of five Supreme Court justices. They’re the ones who really made it possible for me, as a District resident, to own a handgun, a constitutional right as heavily debated and rigorously parsed as the freedoms of speech and religion.” Most other constitutional rights don’t involve so many government barriers, or such open hostility from the government officials who, theoretically, should be protecting them, not trying to kill them.

The concern for barriers on fundamental rights should extend to other rights, such as the right to an abortion or as my con law professor would say, “the right to have or not to have a child.”  In Planned Parenthood v. Casey the Court, rather than apply strict scrutiny as it does with other fundamental rights, found that as long as a law did not put an “undue burden” on the right to have an abortion, the law was constitutional. The Court then upheld a law that required women to visit a doctor and then wait 24 hours before she could have an abortion.  When a state has only one or two abortion providers, this requirement put a heavy burden on women that have to travel to exercise their constitutional right. The Court has also found that the State is within its rights to tell women seeking an abortion that it is their preference that they choose not to have an abortion.  Perhaps it is time for both sides to re-think what it means for the government to place so many burdens on what a portion of the population considers to be an important constitutional right.

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