Monday, July 7, 2008

Heller: Scalia's opinion

THE REHEARING ISSUE: The Washington Post has recently called for the Supreme Court to reopen the Kennedy case based upon the "slip-up" in its count of jurisdictions that allowed the death penalty for child rape. As we've discussed in two prior posts, both the majority and dissent failed to note that Congress had authorized the death penalty for child rape under the Uniform Code of Military Justice.

For ourselves, we don't think "reopening" the case for this reason would be a good idea (a short explanation in an order denying a rehearing is a different matter). As an initial matter, we have an issue with the Post's editorial:

Actually, only two years ago, Congress enacted a death penalty for soldiers who
commit child rape, as part of an update to the Uniform Code of Military Justice
(UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of
an act of Congress based on the erroneous claim that the statute did not exist.
This is not the court majority's fault alone. In his dissent, Justice Samuel A. Alito Jr. did not spot the error. Neither party in the case -- the state of Louisiana and convicted rapist Patrick Kennedy -- raised it. Nor was it mentioned in 10 friend-of-the-court briefs on both sides

Not the court majority's fault alone! Why is it their fault at all? Everyone involved with this case knew perfectly well, following Roper and Adkins, that the court would be counting jurisdictions that allowed the death penalty for child rape. Yet none of them- not Louisiana, not any of the amici - cited the provision in the UCMJ. The Supreme Court depends upon the parties to bring issues and facts to its attention. Unless there was some dispute about the number of jurisdictions amongst the parties, is it really surprising that the court did not perform an independent investigation?

To our eyes, the UCMJ provision is of marginal significance. The "national consensus" argument was one of only about 94 different issues raised in Kennedy's majority opinion (In our view, they still managed to miss the best issue - This question was already resolved by Coker v. Georgia!)

Moreover, should this provision - which would only have applied to soldiers in military courts - have a real bearing on whether there was a "national consensus" on the death penalty for child rape? We are not experts in the UCMJ, so we'll quote the New York Times' discussion of this issue:
No one in the military has been charged with a capital crime yet under the
revised provision. And despite the flurry of activity surrounding the death
penalty, the military has not in fact executed anyone for
. Its last execution took place on April 13, 1961, when Pvt.
John A. Bennett was put to death by hanging. His crime: the rape of an
11-year-old girl.

Might we offer a thought? The availability of the death penalty for an offense in the UCMJ may not be the best measure of a "national consensus." We would note that Congress also has the authority to authorize the death penalty for offenses in the civilian federal courts. Indeed, the federal courts more than occasionally deal with sex offenses - for example, when they occur on federal lands such an Indian reservations. Prosecutors have not been shy about seeking the death penalty in federal courts, and Congress has not been shy about expanding the availability of the death penalty to non-homicide offenses in civilian federal courts. That said, Congress has not permitted the death penalty for child rape in these cases - a fact which Kennedy noted in his opinion.

In short, Congress has not permitted the death penalty for child rape in the courts where such penalty may actually have been used. While we're not the biggest fans of the reasoning in Kennedy's opinion, we find it hard to see why the UCMJ ommission should lead to different result or require a re-opening of the case.

BACK TO HELLER: Everyone agrees that the 2nd amendment protects some sort of right to bear arms. The question argued in Heller: does it protect an individual right to possess arms (for example, for self-defense in your own home) or a collective right to possess arms (for example, as part of a militia)? Scalia's majority opinion emphatically adopts the first view; Stevens' dissent almost as emphatically adopts the second.

As we stated last week, we find the 2nd amendment difficult to interpret. If the right is purely individual, why mention militias? And if the right is purely intended to protect militias, why go to the trouble of protecting a right to bear arms? We tend to favor Scalia's view of the amendment - but we don't find it to be an easy question, and we don't think we share his reasoning.

We'll enter the historical debate in 1939. Up until this point, Scalia has been cruising right along, finding almost every source in agreement that the 2nd amendment protects an individual right - a right not conditioned upon service in a militia. But then he runs into United States v. Miller, the Supreme Court's last lengthy discussion of the 2nd amendment. Miller involved a federal prosecution of a man who possessed a sawed-off shotgun. Federal law had outlawed the possession of these weapons. The defendant argued that the prosecution violated the 2nd amendment. The crux of the court's holding is printed below - we've highlighted three statements:

(1) In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

(2) Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. (3) With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

As Stevens notes, many commentators and courts had concluded that Miller - which was unanimously decided - had adopted a collective view of the 2nd amendment. The opinion stated that the amendment must be "interpreted and applied" with its "obvious purpose" in mind - and that purpose was "to assure the continuation and render possible the effectiveness" of the militia. As such, the 2nd amendment did not guarantee the right to keep and bear a sawed-off shotgun absent any evidence that the "possession" of the weapon "bore a reasonable relationship
to the preservation or efficiency" of the militia.

Mr. Heller may have had good reasons for wanting to possess a handgun in his house, but it doesn't appear that any of those reasons bore a relationship to the preservation of efficiency of the militia (an institution which, frankly, doesn't exist as it did 220 years ago). It might appear that Miller creates a problem for him.

Clearly, Scalia is not a member of the United States v. Miller Fan Club. Indeed, he includes a lengthy discussion of What a Lousy Opinion Miller Is, arguing that it was inadaquetely argued, briefed, and written (these concerns may some merit to them).

Given this, and given the problems that Miller would seem to pose for an "individual rights" view that Scalia believes is so clearly established in the history of the amendment, you might think that Scalia would simply overrule Miller. But he definitely does not do this. He adopts what he claims is Miller's holding wholesale, and proclaims that "[Miller's] holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms."

How is able to do this? We'll answer that question tommorrow. And why is Scalia so intent on harmonizing instead of distinguishing Miller? We'll try to answer that question this week as well.

NEXT: We'll see what Scalia does with those three highlighted passages from Miller.

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