The Things We Bear : On Guns, Abortion, and Substantive Due Process

As the Supreme Court sits ready to curtail both abortion rights and gun control laws in its current term, this Note seeks to retheorize the nexus between the constitutional claims to abortion and individual gun ownership. It departs from existing theories, which largely frame the legal arguments or bases of the two rights as parallel, by proposing a framework of constitutional interpretation that both expands access to abortion and restricts individual access to firearms. This framework, building on the recent work of Douglas NeJaime and Reva Siegel, understands substantive due process—the constitutional hook through which both rights have passed during their development —as an equality-focused doctrine concerned with removing group-based subordination as a barrier to full democratic participation. In this capacity, the Due Process Clause requires that abortion and firearm restrictions’ constitutionality are evaluated with reference to their implications for social inequality. To illustrate this theory, this Note analyzes abortion restrictions—specifically, the fetal homicide laws sometimes used to prosecute self-managed abortions—and permissive firearms policies that are each justified in part by appeals to women’s empowerment and protection. This Note establishes that, to the contrary, the laws in question have an inverse relationship to women’s protection. The potential regime of crippled abortion access and expanded gun access is a regime under which women are criminalized and more vulnerable to gender-based violence. As such, regulating firearms and deregulating abortion is not only doctrinally consistent but in fact doctrinally compelled