THENEWYORKER,DECEMBER13, 2021 13
COMMENT
WHO’STHEL AW?
T
he legal landscape of the past weeks
and months has prompted ques-
tions of which people and entities are
legitimate interpreters and enforcers of
the law and what happens when you
take the law into your own hands. Mis-
sissippi and other states took the recent
changes in personnel on the Supreme
Court as an invitation to defy the Court’s
constitutional rulings on abortion, and
those states now seem likely to prevail.
During oral arguments in Dobbs v.
Jackson Women’s Health Organization,
last Wednesday, the three liberal Justices
often seemed to be delivering dirges, as
though they had accepted a loss and were
speaking for posterity. Mississippi’s ban
on abortions after fifteen weeks of preg-
nancy, which boldly flouts the Court’s
precedents setting the line at around
twenty-four weeks, is likely to be upheld
by the conservative Justices. The argu-
ments offered scant reason for hope that
Roe v. Wade will be reaffirmed; the new-
est conservative Justices, Brett Kavanaugh
and Amy Coney Barrett, signalled no
qualms about overruling Roe as wrongly
decided, which would make a majority
of at least five. At a time when the Court’s
legitimacy appears extremely fragile, it
is telling that the majority’s response to
having the supremacy of the Court’s de-
cisions defied seems to be acquiescence
and approval.
The open challenge to the Court’s
authority perhaps broadly reflects a spirit
of legal self-help that is running through
the land. For instance, we normally think
that the role of law enforcement be-
longs to the states, not to random neigh-
bors, but two recent homicide cases ap-
peared to put vigilantism on trial. On
November 19th, in Kenosha, Wiscon-
sin, Kyle Rittenhouse was acquitted of
all charges for shooting three people,
two fatally, during racial-justice protests
in August, 2020. Rittenhouse, who was
then seventeen, had travelled to Kenosha
from his home in Illinois with a semi-
automatic weapon, purportedly to keep
the peace and to prevent property de-
struction. The jury concluded that he
shot his victims in self-defense, because
he reasonably feared his own death or
serious bodily harm.
On November 24th, a jury in Geor-
gia rejected a self-defense claim, return-
ing murder convictions for three white
men who, in February, 2020, chased down
and shot Ahmaud Arbery, a Black man
who was out jogging. The defendants
claimed that they had pursued Arbery
because they suspected him of commit-
ILLUSTRATIONS BY JOÃO FAZENDA
THE TALK OF THE TOWN
ting burglaries in the area, and that the
fatal shots were fired in response to his
allegedly reaching for a shotgun that one
of them was pointing at him. They tried
to justify the pursuit by invoking a Geor-
gia citizen’s-arrest law that authorized
anyone who had “reasonable and prob-
able grounds of suspicion” to arrest an
escaping suspected felon. The law has
since been repealed, but similar laws have
long existed in nearly every state.
Any vigilante revivalism today goes
hand in hand with private citizens’ in-
creased ability to carry guns in public.
The Supreme Court is currently consid-
ering the most important gun-rights case
since it held, more than a decade ago,
that the Second Amendment guaran-
tees an individual’s right to keep hand-
guns in the home for self-defense. On
November 3rd, it heard arguments chal-
lenging a New York law that allows a li-
cense for the concealed carry of hand-
guns outside the home, but only upon a
demonstration of “proper cause.” The
perverse, self-fulfilling truth is that, as
gun ownership has proliferated, an in-
dividual’s claim to need a gun for pro-
tection has become more plausible. But
the idea that ordinary people need to
carry guns flows directly from the tradi-
tion that champions the use of force by
private citizens to uphold the law, in-
stead of—or even against—the state.
Looking to the history of carrying arms
in early America, the conservative Jus-
tices appear likely to extend the right to
bear arms to toting guns on the street.
The spirit of vigilantism is also no-
table in a case that the Court is consid-
ering concerning a Texas law that bans
abortions after roughly the sixth week
