Despite loudly proclaiming his belief in a strict interpretation of the Constitution, Supreme Court Justice Antonin Scalia has just written the majority opinion in a case that miraculously discovers rights not specifically enumerated in the Constitution. Incredible!
In District of Columbia v. Heller the Court ruled that individuals have the right to bear arms. This had been a bit of a Constitutional sticking point over the years because the second amendment seems to tie that right to the need to have a "well-regulated militia." However, the Court has chosen to interpret that clause pretty broadly and say that it applies to individuals who never have and never will serve in any sort of militia, well-regulated or otherwise. Slate's Timoth Noah also writes that in the process, Justice Scalia discovered the right to convenience.
On Constitutional matters, I know just enough to sound like I know what I'm talking about, but I'm hardly John Marshall. As such, I can't say that I know how the Constitution should be interpreted to suit modern times. What is clear to me though, is that you can't simultaneously argue for a strict construction of the Constitution, argue that there should be no recognized right to privacy (the basis for the decision in Roe v. Wade), and say that the Constitution guarantees the rights of individuals to carry handguns despite it not saying that in the document itself.
This case may be a strike against gun control laws in DC and elsewhere. But the next time a privacy case comes up, Scalia's writing in Heller may prove to be a pretty good tool.
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Friday, June 27, 2008
Thursday, April 17, 2008
Drawing the Line
The Supreme Court heard arguments yesterday in a case to determine whether the state of Louisiana is legally allowed to execute a man convicted of raping his 8-year-old stepdaughter.
I say do it.
Let me step back a moment. I do have major reservations about the way the death penalty is implemented in this country. The statistics show that its use leans heavily against black men, especially if their crimes were against whites. And that's a real problem. However, I think that at a philosophical level there are crimes for which one deserves to die. Some crimes are so heinous that mere imprisonment isn't enough.
The obvious retort at this point would be to say that sure, philosophically it may make sense, but we exist in the real world and we have to consider how things actually look in reality. Which I agree with. So let's take a look at what the court is actually examining here.
As I read it, the court is not looking at whether or not the death penalty is justly instituted by society. They are working from the assumption that the death penalty is acceptable. The only question is: for what crimes is death an acceptable punishment?
There is no question in my mind that this crime rises to that level. It is heinous, it shocks the conscience, it has no place in any civilized nation. The victim will now live with severe emotional trauma for the rest of her life. Not to mention the extensive internal injuries she suffered. The perpetrator of this crime, found guilty beyond a reasonable doubt by a jury of his peers, is asking for mercy. Mercy is a virtue and forgiveness is divine. But at some point you need to draw a bright red line and say that we don't tolerate anyone who crosses it.
In making their decision, the court will be considering the "evolving standards of decency" as they decide what crimes can be punished by death. I would contend that any standard of decency that does not say we should mete out the maximum punshment available for a grown man who violently rapes his 8-year-old stepdaughter can hardly claim to be decent at all.
I say do it.
Let me step back a moment. I do have major reservations about the way the death penalty is implemented in this country. The statistics show that its use leans heavily against black men, especially if their crimes were against whites. And that's a real problem. However, I think that at a philosophical level there are crimes for which one deserves to die. Some crimes are so heinous that mere imprisonment isn't enough.
The obvious retort at this point would be to say that sure, philosophically it may make sense, but we exist in the real world and we have to consider how things actually look in reality. Which I agree with. So let's take a look at what the court is actually examining here.
As I read it, the court is not looking at whether or not the death penalty is justly instituted by society. They are working from the assumption that the death penalty is acceptable. The only question is: for what crimes is death an acceptable punishment?
There is no question in my mind that this crime rises to that level. It is heinous, it shocks the conscience, it has no place in any civilized nation. The victim will now live with severe emotional trauma for the rest of her life. Not to mention the extensive internal injuries she suffered. The perpetrator of this crime, found guilty beyond a reasonable doubt by a jury of his peers, is asking for mercy. Mercy is a virtue and forgiveness is divine. But at some point you need to draw a bright red line and say that we don't tolerate anyone who crosses it.
In making their decision, the court will be considering the "evolving standards of decency" as they decide what crimes can be punished by death. I would contend that any standard of decency that does not say we should mete out the maximum punshment available for a grown man who violently rapes his 8-year-old stepdaughter can hardly claim to be decent at all.
Tuesday, March 18, 2008
Penumbras, Guns, and Abortion
A lot more than gun rights may be at stake when the Supreme Court hears arguments today in the case District of Columbia v. Heller. The case immediately at hand is whether or not Washington, D.C.'s ban on individual gun ownership is legal or if the Constitution guarantees individuals the right to bear arms.
A quick walk down Constitution lane. As it was written by the Founding Fathers, the second amendment says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.'' So, in the Constitution, the right to bear arms is explicitly tied to the formation and existence of a well regulated militia. Clearly, random people owning handguns in their homes is not a well regulated militia. As such, D.C. says that it has not violated any Constitutional rights by banning individual weapons. The argument goes that there is a collective, not individual, right to have a gun. Clearly, others (the NRA being foremost among them) disagree. And that brings us to the lawsuit before the court today.
There's been a lot of writing about how the court hasn't really heard a gun rights case in 69 years and how the second amendment has never been comprehensively interpreted. And in that sense, this could be a big case. However, I want to know how this case applies to abortion rights.
Pretty much since the day that Roe v. Wade was issued, it's been attacked for inventing rights that don't exist in the Constitution. (Technically, this isn't accurate. The right to privacy was actually invented in the case Griswold v. Connecticut. But that's not really the point here.) Strict constructionist judges (think Scalia) say that we need to look at what the Constitution really says and that it's not the role of judges to go around saying what should be in there or not. This sparks an elaborate argument that I won't go into just now. However, keep in mind that the position usually staked out by the conservative justices is one of strict construction that shuns the so-called "penumbras" of implied rights that "emanate" from the explicit rights laid out in the Constitution.
And yet, now in order to find an individual right to bear arms unconnected with a well regulated militia, the court would have to find a conservative version of those very penumbras that gave us the right to privacy. A strict reading of the Constitution would lead us to think that the right to bear arms is tied to the existence of a well regulated militia. Absent that, the Constitution is silent. That being the case, states have the power to make their own decisions on the matter (thank you tenth amendment) and the D.C. ban should be valid. However, if there is an implied right for individuals to own guns (say, from the second, ninth, and fourteenth amendments) then why could there not also be an implied right to privacy, and with it, the right to have an abortion?
While the arguments will be held today, we won't get the decision for months yet. And my guess is that when we do hear the court's ruling, it will follow the O'Connor model of a narrowly written opinion that doesn't address the sweeping issues at stake. But maybe it will. And if it does, it will be very interesting to see what the court thinks.
A quick walk down Constitution lane. As it was written by the Founding Fathers, the second amendment says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.'' So, in the Constitution, the right to bear arms is explicitly tied to the formation and existence of a well regulated militia. Clearly, random people owning handguns in their homes is not a well regulated militia. As such, D.C. says that it has not violated any Constitutional rights by banning individual weapons. The argument goes that there is a collective, not individual, right to have a gun. Clearly, others (the NRA being foremost among them) disagree. And that brings us to the lawsuit before the court today.
There's been a lot of writing about how the court hasn't really heard a gun rights case in 69 years and how the second amendment has never been comprehensively interpreted. And in that sense, this could be a big case. However, I want to know how this case applies to abortion rights.
Pretty much since the day that Roe v. Wade was issued, it's been attacked for inventing rights that don't exist in the Constitution. (Technically, this isn't accurate. The right to privacy was actually invented in the case Griswold v. Connecticut. But that's not really the point here.) Strict constructionist judges (think Scalia) say that we need to look at what the Constitution really says and that it's not the role of judges to go around saying what should be in there or not. This sparks an elaborate argument that I won't go into just now. However, keep in mind that the position usually staked out by the conservative justices is one of strict construction that shuns the so-called "penumbras" of implied rights that "emanate" from the explicit rights laid out in the Constitution.
And yet, now in order to find an individual right to bear arms unconnected with a well regulated militia, the court would have to find a conservative version of those very penumbras that gave us the right to privacy. A strict reading of the Constitution would lead us to think that the right to bear arms is tied to the existence of a well regulated militia. Absent that, the Constitution is silent. That being the case, states have the power to make their own decisions on the matter (thank you tenth amendment) and the D.C. ban should be valid. However, if there is an implied right for individuals to own guns (say, from the second, ninth, and fourteenth amendments) then why could there not also be an implied right to privacy, and with it, the right to have an abortion?
While the arguments will be held today, we won't get the decision for months yet. And my guess is that when we do hear the court's ruling, it will follow the O'Connor model of a narrowly written opinion that doesn't address the sweeping issues at stake. But maybe it will. And if it does, it will be very interesting to see what the court thinks.
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