A federal judge in Alabama has struck down draconian anti-choice legislation using an interesting analogy with the Second Amendment. The National Journal quotes U.S. District Judge Myron Thompson‘s extended analogy:
In deciding this case, the court was struck by a parallel in some respects between the right of women to decide to terminate a pregnancy and the right of the individual to keep and bear firearms, including handguns, in her home for the purposes of self-defense.
At its core, each protected right is held by the individual: the right to decide to have an abortion and the right to have and use firearms for self-defense. However, neither right can be fully exercised without the assistance of someone else. The right to abortion cannot be exercised without a medical professional, and the right to keep and bear arms means little if there is no one from whom to acquire the handgun or ammunition. In the context of both rights, the Supreme Court recognizes that some regulation of the protected activity is appropriate, but that other regulation may tread too heavily on the right.
Finally, as to each right, there are many who believe, as a matter of law, that the Supreme Court’s reasoning in articulating the right was incorrect and who also believe, as a matter of strong moral or ethical convictions, that the activity deserves no constitutional protection.
With this parallelism in mind, the court poses the hypothetical that suppose, for the public weal, the federal or state government were to implement a new restriction on who may sell firearms and ammunition and on the procedure they must employ in selling such goods and that, further, only two vendors in the State of Alabama were capable of complying with the restriction: one in Huntsville and one in Tuscaloosa. The defenders of this law would be called upon to do a heck of a lot of explaining—and rightly so in the face of an effect so severe. Similarly, in this case, so long as the Supreme Court continues to recognize a constitutional right to choose to terminate a pregnancy, any regulation that would, in effect, restrict the exercise of that right to only Huntsville and Tuscaloosa should be subject to the same skepticism.
In rhetoric studies we talk about the fallacy of the false analogy, an instance in which an arguer attempts to draw a conclusion from comparing the similarities of two or more dissimilar ideas, while ignoring possibly greater dissimilarities that may ultimately render the analogy invalid. It is a common mistake, but generally one committed by inexperienced debaters, not by those sitting on the federal bench.
In this case I would hold the analogy valid. The judge relies on the oft-debated right to an abortion, and in doing so his argument would likely be rejected by anti-choice proponents. If we accept however, that the right to an abortion is a constitutionally-guaranteed right, as Roe v Wade does still, despite the erosion of this right seen since that ruling, then equating that right with other constitutionally-enumerated rights makes for a valid analogy. The extended scenario he then creates – gun dealers in only two cities in Alabama, which would be the only locations of women’s health clinics should this law be upheld – is reasonable, and serves to support his analogy, and ultimately his conclusion.
That said, as I’ve acknowledged before, I am not an attorney; I only play one on the Internet. I’d like to hear from those more qualified than I in this regard.