Felons and Guns

We were spurred from our hibernation by this article in the NY Post.

In our last post, we had pondered this issue: After Heller, how can laws that permanently deny large classes of people the right to possess firearms be constitutional? Why can a fundamental right be taken away simply because one has a felony conviction?

Mr. Kates answers that question in the Post:

Federal and state laws against convicted felons having guns are still valid: The Second Amendment protects a right of self-defense for "good" people only.

Well, that clears it up! "Good" people have the right to self-defense. Bad people do not.

In fairness to Mr. Kates, there is an actual constitutional argument in his article:

Is there any chance the Supreme Court would eventually buy the arguments of
the criminals' lawyers? Not if it pays any attention to the clear record of the
Second Amendment's history.

The amendment guarantees a "right of the people to keep and bear arms" -
and the Founding Fathers did not think "the people" included criminals. Under
the law as they knew it, felons were "civilly dead": They had no legal rights
whatever. All their property (including guns) was forfeit. (Moreover, they were
subject to execution - which made their rights irrelevant.)

Here at Hawks and Handsaws, we have some professional interest in this issue, and have studied more than a few articles (mostly written pre-Heller) that discuss the effect of a 2nd amendment right on felon-in-possession laws. For the most part, we've come across variations of the above argument. We must confess that find very little merit in it.

Consider:

(1) Under the common law, felons could be executed for their crimes. But did they really automatically lose all of their rights and property? We suspect Kates may be wrong about this. We'd really like to see some citations to some actual laws (which we have yet to find in the literature we've read) before we assume that felons automatically had no rights at common law.

(2) In any case, felons convicted today are certainly not subject to forfeiture of all property or (usually) execution

(3) Is anyone aware of any court that has held that a person may lose a fundamental constitutional right simply because of a criminal conviction? The right to speak in public, for example? Or the right to have a jury trial, if accused of another crime?

(No, losing the right to vote doesn't count - as Scalia would happily remind us, this right is not guaranteed anywhere in the Bill of Rights)

(4) Would you wany to live in a society that stripped millions people of all their rights in this manner?

It seems that Mr. Kates may not want this either, which could be why he carves out a big exception at the end of his article:

In sum, the constitutional right to arms simply does not extend to people convicted of serious criminal offenses. By "serious," I refer to the early common law - under which felonies were real wrongs like rape,robbery and murder.

Unfortunately, modern legislatures have added a host of trivial felonies. For instance, in California an 18-year-old girl who has oral sex with her 17-year-old boyfriend has committed a felony. The courts should rule that conviction of such a trivial felony can't deprive such a "felon" of her right to arms.

Kates claims to be a criminologist, but he doesn't seem to realize how big of an exception he is carving out here. Many - possibly most - people with felony convictions have been convicted of crimes that weren't "real wrongs" like rape, robbery, and murder (and according to Kates, all rapes don't count - he exempts at least one kind of statutory rape in his second paragraph). Drug offenses, for example, weren't even crimes under the common law.

It seems, ironically, that many felons would be quite happy with the World According to Kates.

NEXT: We go back to Scalia's opinion.

A Short Hiatus

We're quite busy at our new position in the non-capital habeas corpus unit of the federal defender, and as such will need to take a short hiatus on our postings. We should have plenty of time to get back up to speed, as the Supreme Court will not be issuing new opinions for awhile.

Heller: What Next?

The federal law regulating gun possession, 18 U.S.C. section 922, makes it a crime for many different types to have a firearm in their possession. Those people include:

Anyone who has been convicted of a crime punishable by more than one year

Anyone who is an "unlawful user" of a controlled substance

Anyone who has ever "committed to a mental institution"

Anyone who has ever been dishonorably discharged from the military

In our (limited) experience, many of these prohibitions are rarely prosecuted. But still - federal law states that you permanently lose your right to possess (let alone own) a firearm if you smoke pot on the weekend, or if you were hospitalized for depression once in 1983, or if you were convicted of writing a bad check for $500 (a felony in our former home state of New Hampshire!).

Heller states that the second amendment protects an individual right to own firearms. If so, how can these broad prohibitions possibly be allowed under the constitution?

We'll leave you with that question as we head off for a three-day weekend.

Heller: Some Additional Problems

Scalia could have overruled United States v. Miller to reach his desired result in Heller - an individual right to bear arms. Indeed, he laid out a good case for doing so in his majority opinion. But Scalia most certainly did not overrule Miller; to the contrary, he pretended that it was perfectly consistent with his view of the 2nd amendment. Pretended is the right word, because Scalia (a) changed one passage in Miller that was inconsistent with his view, and (b) completely ignored another. See our last post for the details.

Putting that aside, however, does Scalia's made-up version of Miller still cause problems? Remember, even Scalia acknowledges that Miller permits the government to ban sawed-off shotguns because they are not "part of the ordinary military equipment" and because their use could not "contribute to the common defense."

We see at least three problems here:

First, isn't the horse already out of the barn? Miller (at the very least) permits the government to ban certain types of weapons because those weapons do not properly relate to militias. Thus, the scope of right to bear arms is tied to militias. Why should this principle be limited to restrictions on the type of weapons one may carry? Why can't Congress put restrictions on the purpose one has for bearing arms? In other words, why can't Congress regulate the possession of weapons so long as their owners are not involved in militias? Mr. Heller, as far as we know, was the not a member of a militia, and no intention of joining one.

Second, if the government can ban sawed-off shotguns, why can't it ban handguns? Admittedly, at Hawks and Handsaws, we're not experts in military matters. But it seems to us that .22 caliber revolvers, for example, are not currently part of the "ordinary military equipment." Perhaps a revolver could have some use in the "common defense" - but so could a sawed-off shotgun (if we were defending the Alamo, and had to pick, we'd pick the sawed-off shotgun). If sawed-off shotguns don't make the cut for "ordinary military equipment" or weapons appropriate for the "common defense," why would handguns?

And third - if Miller is read to only allow the prohibition of weapons that are not useful for militia purposes, does this mean that private citizens have a second amendment right to possess any weapon that is part of "ordinary military equipment" or useful for the common defense? Machine guns, for example? Rocket launchers? B-52 bombers? This cannot be the case - but why not?

Scalia is no dummy; he can anticipate these problems. How does he deal with them? Simple! He rewrites Miller yet again:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

Brilliant! Miller only concerns "weapons not typically possessed by law-abiding citizens for lawful purposes." That "interpretation" kills all three birds noted above: (1) It interprets Miller in a way that avoids any connection between the right to bear arms and militias; (2) It allows Heller to keep his handguns (which "law-abiding citizens" certainly might possess for "lawful purposes"), while still prohibiting those no-good sawed-off shotguns; and (3) Allows the government to ban private ownership of those other crazy weapons (since no one has "typically" possessed them for lawful purposes).

There's a huge problem here, though. Can you see it? That's right, Scalia is making this up out of the whole cloth. Miller doesn't say anything about "law-abiding citizens" or "lawful purposes." It links the 2nd amendment to the militia. Scalia doesn't like this, so it makes Miller say something else, entirely different.

Scalia complains that Miller wouldn't make sense otherwise, since it would allow private citizens to possess machineguns and other military-type weapons (see also our point above). But this problem is entirely the result of Scalia's initial misstatement of Miller. He insists that Miller only concerns the type of weapons that may be possessed. But as we pointed out yesterday, Scalia changes or disappears language in Miller that connects the right to possess arms to the purpose of that possession.

How would Miller, fairly read, deal with that private citizen who wants to own a machinegun or rocket launcher? While those weapons may have legitimate military use, it is difficult to see how their private ownership would further the effectiveness or continuation of a militia. As such, it seems that Miller - properly read - would have little trouble excluding their ownership from the second amendment.

SCALIA ON MILLER, THE SHORT VERSION: Miller contradicts my preferred view of the second amendment, under which the scope of the right has nothing to do with militias. So I'm going to ignore or change some of the language in Miller, and say that Miller only prohibits certain types of weapons. Absent the language I've eliminated, however, the holding in Miller makes no sense. So I'll change the holding the Miller to something that I like, and then pretend that Miller is perfectly consistent with my view.

"LAWFUL PURPOSES": As Stevens points out in his dissent, this whole business about weapons "typically possessed" for "lawful purposes" is circular. Private citizens cannot possess M-16s or rocket launchers, because they are not typically used for lawful purposes. But why are they not "typically used? Duh! Because the government has long prohibited the private ownership of these weapons! As the NRA has told us, if you outlaw guns, only outlaws will have guns!

"LAW-ABIDING" CITIZENS Doesn't the addition of this phrase seem a bit gratuitous? It's no accident, though - Scalia is anticipating yet another problem . . .

NEXT: Why can't felons own guns?

Heller: How Does Scalia Get Around Miller?

United States v. Miller presents an obstacle to Scalia's majority opinion in Heller. Scalia wants to take the militia out of the 2nd amendment - he doesn't want the right to bear arms to be related to membership, or potential membership, in a militia (an institution which doesn't exist as it did in the 18th century). As such, he devotes his majority opinion to discussing what he sees to be an unbroken line of authority holding that the 2nd amendment protects an individual right to bear arms.

The unanimously decided Miller decision, however, contains three passages that present an obstacle to this viewpoint. We'll cite them again (we've added numbers, but we're quoting a continuous passage from the opinion):

(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

(3) 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. 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.

Stevens' dissent concludes, based on these passages, that Miller "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature's power to regulate the nonmilitary use and ownership of weapons." For reasons we'll explain below, we would agree that this is the best reading of Miller.

Scalia could overrule Miller - indeed, he includes a long passage explaining that Miller was inadequately argued, briefed, and written. But he doesn't do this. He could use the "D" word to explain away the troublesome language. But Scalia nowhere says that anything in Miller was dicta that should not be followed. To the contrary, Scalia's concludes "that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment."

So how does Scalia address Miller? After quoting (some) of Miller, here's how he starts:

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.

He's a slick fellow, that Scalia. He knows that Stevens reads Miller to protect "the right to keep and bear arms for certain military purposes," but not the right to keep arms for non-military purposes (indeed, he quotes the same language from the dissent that we included above). But he quickly restates the issue as something else: whether the Court in Miller "believed that the Second Amendment protects only those serving in the militia." These are not quite the same thing.

For one thing, Scalia's point doesn't work with Stevens' actual argument. If the Supreme Court in Miller believed that the 2nd amendment only protected the right to bear arms for "certain military purposes," why would it be "odd" for them to note that sawed-off shotguns are not "ordinary military equipment" or that their use could not "contribute to the common defense"? The point is that sawed-off shotguns are never appropriate for "military purposes,"and Congress can thus categorically ban them without worrying about the 2nd amendment. To our eyes, this is perfectly consistent with Stevens' view of the case.

But notice what else Scalia is doing. He says that Miller is only about the "character of the weapon" involved. That may be true of passage (2) from Miller, quoted above. But look at the preceding sentence - passage (1) above. That sentence states that the "possession or use" of the weapon must have "some reasonable relationship to the preservation or efficiency of a well regulated militia" for the 2nd amendment to be implicated. This is a much broader statement - a statement that is very difficult to reconcile with Scalia's preferred view of the 2nd amendment. So what does Scalia do? He changes it!

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia")

Scalia quotes from passage (1), but says that the "reasonable relationship" to militias required by Miller concerns only the arms themselves. This is plainly not what that passage said. The first passage from Miller said that the "possession or use" of a weapon (and not just the weapon itself) must be related to the preservation or efficiency of a militia. (Again - in Miller, it was not necessary to discuss the defendant's "possession or use" of the firearm, because the court concluded that a sawed-off shotgun could never be possessed or used for militia purposes.)

We're constantly told how brilliant and meticulous Scalia is - and for that reason, we find it hard to believe that this misquote was a mistake or an oversight. No, it would appear that Scalia intentionally changed a passage in Miller - a passage that does not support his reading of the 2nd amendment.

WHAT ABOUT THAT THIRD PASSAGE?: Scalia quotes the first two passages of Miller cited above (indeed, he quotes the first passage accurately - before he intentionally misquotes it later in his opinion). "Beyond that," he concludes, "the opinion provided no explanation of the content of the [second amendment] right."

We suppose that statement is technically accurate. But what about the last sentence in the third passage from Miller:

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.

This passage may not explain the content of the 2nd amendment right, but it certainly explains how that content should be determined. The Court should interpret and apply the 2nd amendment to further its "obvious purpose" - to assure the continuation and effectiveness of the militia forces.

We'll assume that Mr. Heller had good reasons for want to possess firearms in his home - but we're hard pressed to see how his possession of a gun would ensure the continuation and effectiveness of any militia. As such, this passage presents a problem for Scalia.

How does he deal with this passage? Simple! He "disappears"it from his opinion! If you don't cite or acknowledge it, you don't have to deal with it!

IT BEARS REPEATING: We're inclined to believe that Scalia reached the correct result in Heller. As a Supreme Court justice, Scalia does not have to follow Miller - he can overrule it, or distinguish certain language as dicta. Scalia, however, does neither. Instead, he (1) misrepresents the dissent's argument; (2) changes one portion of Miller that he doesn't like, and (3) completely ignores another.

NEXT: Scalia does acknowledge that Miller at least allows Congress to ban the ownership of certain types of firearms. This concession by itself, however, causes problems with his analysis. How does Scalia deal with these problems? HINT: more slickness is involved.

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
decades. 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.

District of Columbia v. Heller

We're getting ready for a 4th of July trip down to Los Angeles, so we won't be back until Monday. Until then, a brief introduction to our discussion of Heller.

The court found that the 2nd amendment protects an individual right to own firearms. Scalia writes the opinion. As with his opinion in Giles v. California (discussed yesterday), the only relevant question for Scalia was: What did the framers of the Constitution think the 2nd amendment meant?

Judge Stevens wrote the main dissent, with the three other judges joining him. He debated the issue with Scalia on his own terms, and determines that the Framers intended the amendment to protect militias, and not individual firearm rights?

Who is correct here? We don't dare wade into this debate. As purely policy matter, we like the result in Scalia's opinion better. As for our legal opinion, we're not inclined to view the intent of the framers as the be-all and end-all of the debate. We prefer to start with the text of the amendment:

"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."

Not the best drafting job in the entire constitution. In our view, it is very difficult to interpret the amendment in a way that is fair to the language before and after the first comma. If the right has nothing to do with militia service (Scalia's opinion), why include that language? To explain why the right is important? No other right in the Bill of Rights has such an explanation. On the other hand, if the purpose of the amendment is just to protect militias, why only state that the "right of the people to keep and bear arms" shall not be infringed.

We plan to focus on two issues in Scalia's opinion in Heller. One of them has to do with his interpretation of the Supreme Court's last opinion dealing with the 2nd amendment; the other has to do with how Heller will effect other types of gun control laws - particularly, laws that prevent felons from owning guns. HINT: we're not satisfied with Scalia's resolution of either issue.

Recommended reading: United States v. Miller

THE ISSUE HAS LEGS: Several parties in Kennedy v. Louisiana are considering filing a motion for rehearing based upon the death penalty provision in the Uniform Military Code that was left out in the majority opinion (because none of the parties told the court about it). It is unlikely that the Court would do this, and even more unlikely that a law that only applied in military court would (or should) change the result of the opinion.

For the last time: There was a much easier way to decide the case - a way that relied on settled law instead of the oft-criticized "state-counting" objective test used by the majority (want to know more? -v isit our archives!)

Giles v California

We're hoping to get to District of Columbia v. Heller very soon - but "very soon" may have to be next week. We'll probably take off the 4th of July. Next week, we'll be transferring within our office, so we'll expect to be more busy than usual.

Giles v. California involve a fairly narrow disagreement over a fairly narrow issue - but it shows us a lot about the Supreme Court. We think it makes a good prelude to Heller.

Giles is about the Confrontation Clause of the 6th Amendment of the Constitution ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted by the witnesses against him.") For years, the Supreme Court had taken this to mean that "hearsay" testimony could be OK in a criminal prosecution if it was "reliable."

A few years ago, Judge Scalia spurred a minor revolution by changing re-interpreting the clause. In Scalia's view, the right to confrontation meant no more and no less that what the Framers of the Constitution thought it did. Like a lot of recent Scalia decisions, this development was generally good for criminal defendants, and generally bad for prosecutors, because it (usually) made it harder to introduce hearsay testimony.

There are no exceptions to the right to "confront" witnesses in the clause itself. But according to Scalia, there are some exceptions - because the framers understood that there were exceptions. According to Scalia, the Framers recognized two basic exceptions - "dying declarations" and "forfeiture by wrongdoing."

Giles is about "forfeiture by wrongdoing." Some examples of forfeiture are clear. For example, if you threaten to kill a witness if he testifies against you in court, and then the witness doesn't appear, you have forfeited your right to confront (cross-examine) that witness at your trial. The prosecutor would then be OK introducing statements that witness made to other people (a police officer, for example) without having to worry about the constitution.

Giles involved a situation that was a bit less clear. Giles was being prosecuted for murder. To prove that Giles had committed murder, the prosecutor introduced damaging statements made by Giles' wife. Giles wasn't able to confront his wife at trial because she was dead. The wife, you see, was the person that Giles was accused of killing.

This case is like an O. Henry story. The narrow question is whether "forfeiture by wrongdoing" applied here. Does the "wrongdoing" that kept the witness from testifying (in this case, the alleged murder) need to have been designed to keep the witness from testifying? Or is it enough that the wrongdoing resulted in the witnesses absence from trial?

Scalia wrote the opinion. Remember, in his view, the only way to answer this question is to determine what the framers of the constitution thought. Unfortunately, the framers were not kind enough to provide posterity with a set of FAQs about the meaning of the constitution. In fact, it doesn't appear that the Framers provided any particularly detailed contemporary explanation of the Confrontation clause.

(There are many other issues here. Whose opinions count? The drafters of the constitution? The authors of the Federalist Opinions? The states that ratified the constitution? What if there were disagreements? Whose opinions mattered more? And the bigger issue - even if we can assume that the framers had a particular opinion on the meaning of the constitution, how do we know that they intended this meaning to be binding on future generations? We have yet to see Mr. Scalia offer definitive answers to these questions - and don't wish to wade into them right now ourselves).

The way that Scalia divines the "original meaning" of the Constitution under these circumstances is to study the "common law" as it existed in the late 18th century. The theory is that the rights in the constitution were based on rights already existing in the law of England and America. The Framers, thus, understood the rights as the "common law" did.

So Scalia's opinion is an extensive discussion of old cases - mostly from England, and some over three hundred years old. Scalia's conclusion is that the cases say the doctrine by forfeiture requires a finding that the defendant's wrongdoing was designed to keep the witness from trial. This is good news for Giles, who may get a new trial out of the deal.

We'll pose a question: Is Scalia's method of analysis the best way to decide Constitutional issues in the 21st century? Consider a few things. First, the "common law" isn't some list of rules and laws set down in a book somewhere. Instead, it consists of thousands of different decisions made by different judges over a period of hundreds of years. The judges who made these decisions looked at decisions made by other judges (only some of which were recorded) - but adapted them to their own circumstances, and sometimes changed them. It's not always easy to figure out what the "common law" held at any given point in time. It's particularly hard to do with an issue as narrow as the one presented by the Giles case.

Is it really surprising that judges in the 21st century might disagree over what the common law meant in the 18th century? Breyer writes a dissent (joined by Stevens and Kennedy) in which he looks at the same materials as Scalia, but comes to a different result.

Who's correct? Scalia or Breyer? We don't know - the issue would require more study than we're able to devote to it. As a defense attorney, we like the result in Scalia's opinion better. But we were struck by this passage in Breyer's dissent:

I also recognize the possibility that there are too few old records available for us to draw firm conclusions. Indeed, the "continuing confusion about the very nature of the law of evidence at the end of the eighteenth century underscores how primitive and undertheorized the subject then was." See J. Langbein, The Origins of Adversary Criminal Trial 248 (2003).

Breyer's only discussing 18th century evidentiary law here. But might the principle be extended to the common law in general? To any attempt to divine the intent of the framers?

THREE CHEERS FOR JUDGE SOUTER: In a concurrence, he actually explains why Scalia's result might make more sense (a question that Scalia himself is not greatly concerned with)

As the Court demonstrates, the confrontation right as understood at the Framing
and ratification of the Sixth Amendment was subject to exception on equitable grounds for an absent witness's prior relevant, testimonial statement, when the defendant brought about the absence with intent to prevent testimony. It was, and is, reasonable to place the risk of untruth in an unconfronted, out-of-court statement on a defendant who meant to preclude the testing that confrontation provides. The importance of that intent in assessing the fairness of placing the risk on the defendant is most obvious when a defendant is prosecuted for the very act that causes the witness's absence, homicide being the extreme example. If the victim's prior statement were admissible solely because the defendant kept the witness out of
court by committing homicide, admissibility of the victim's statement to prove guilt would turn on finding the defendant guilty of the homicidal act causing the absence; evidence that the defendant killed would come in because the defendant probably killed. The only thing saving admissibility and liability determinations from question begging would be (in a jury case) the distinct functions of judge and jury: judges would find by a preponderance of evidence that the defendant killed (and so would admit the testimonial statement), while the jury could so find only on proof beyond a reasonable doubt. Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying.

Q: Why did the defendant kill his wife? A: So she couldn't testify at his murder trial! Yes, something seems a bit wrong there. Joseph Heller might have written about this.

NEXT: We discuss the "other" Heller.

Kennedy: Some Speculations

HE MISSED ONE - Apparently, the Uniform Code of Criminal Justice, per an act of Congress, had recently added child rape as a death penalty offense. Kennedy failed to mention this provision in his survey of child rape laws (as did Alito's opinion , and all of the 10 briefs filed in the case). Not addressed in this article: does the Uniform Code require aggravating circumstances for child rape, or is it like the Louisiana law?

THE "WHYS" Why did Justice Kennedy decide Kennedy v. Louisiana the way he did? As we've pointed out in our prior posts, there was a glaringly obvious way to reach the same result in the case - he could have followed Coker v. Georgia, which (by any reasonable reading) held the death penalty unconstitutional for any non-killing offense. Instead, Kennedy had to deny that Coker said this, as part of his preferred (primary) argument that a national consensus had developed against the death penalty for child rape.

Why did Kennedy write the opinion this way? We don't know. We have a theory - but it's too speculative to share right now. Perhaps we'll address it later. For now, we'll answer another "why" question that we're more sure about.

Why did Byron White think the death penalty for non-homicide crimes was unconstitutional? He says (seven times!) in his opinion that crimes such as rape are not death penalty OK unless they cause a death - but why exactly is this? Couldn't there be a death penalty for both offenses, even if one is worse than the other?

White doesn't spell this out in his opinion in so many words - but we have an educated guess.

The two big death penalty cases that preceded Coker were Furman v. Georgia and Gregg v. Georgia. Furman briefly ended capital punishment in this country, Gregg brought it back. White agreed with the result in both cases.

Furman is famous because all nine judges on the court wrote separate opinions. It was a closely decided (5-4) case. White was a surprise vote in the majority (Powell, the most common swing vote, and Harry Blackmun, who would eventually decide the death penalty was unconstitutional, both dissented).

White's view was not that the death penalty was inherently unfair, or excessive, or unreasonable. Here's why he struck it down:

That conclusion, as I have said, is that the death penalty is exacted with great
infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not. The short of it is that the policy of vesting sentencing authority primarily in juries - a decision largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence - has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has for all practical purposes run its course.

White was concerned about the general use of the death penalty in society. Its use was arbitrary. Because it was arbitrary, it could serve no useful purpose.

After Furman, states did not give up on the death penalty. Instead, they passed new laws designed to address White's arbitrariness concern. Some states passed laws that set up a separate sentencing hearing, at which juries would be required to consider certain factors in making their death penalty decision - but they would ultimtately have the power not to impose the penalty. Others made the death penalty mandatory for certain convictions.

The Supreme Court, in Gregg and an accompanying case called Woodson, eventually decided that the first type of law was OK, but the second did not. White, however, thought that both types of systems were OK. It didn't matter to him how many people were executed, or that a jury was given no control over the punishment - all that mattered was the death penalty, under either system was not arbitrary.

So how does this relate to Coker? Consider White's comment at the end of the opinion:

We note finally that in Georgia a person commits murder when he unlawfully and
with malice aforethought, either express or implied, causes the death of another
human being. He also commits that crime when in the commission of a felony he
causes the death of another human being, irrespective of malice. But even where
the killing is deliberate, it is not punishable by death absent proof of aggravating circumstances. It is difficult to accept the notion, and we do not, that the rapist, with or without aggravating circumstances, should be punished more heavily than the deliberate killer as long as the rapist does not himself take the life of his victim.

After Gregg and Woodson, murderers may receive the death penalty - but they also may not. If the death penalty was upheld for rape, this means that some persons who committed rape would receive the death penalty, but some would not. Thus, in any given state, some people who committed rape would be inevitably be executed, while other persons who committed murder (inherently a more serious crime, in White's view) would inevitably not be.

White seems to be most concerned about the arbitrariness of this result. Under his preferred system, where the death penalty could be mandatory for certain crimes, this would not be a problem. In White's view, if every convicted murderercould be executed, there wouldn't be anything wrong with offing a few rapists as well. But Gregg and Woodson prohibit mandatory death penalties.

Thus, the solution in Coker - banning the death penalty for non-homicide crimes - is a compromise solution that reflects a fairly expansive view of the death penalty.

Is this why Kennedy did not want to adopt Coker's reasoning? Did the majority intend to make a broader statement about the death penalty? Again, we simply don't know. The decision, however, provides a lot of ammunition for arguments about the death penalty in other contexts.

For example, one of the many issues that Kennedy raised with the death penalty for child rape is the possibility of erroneous conviction. Justice Kennedy notes that many child rape prosecutions are based mostly or entirely on the testimony of a young child, and expressed concern about the reliability of such testimony (in our experience as a public defender, such concerns are well-founded in some cases). Should this concern limit the death penalty in other cases that may be based on questionable evidence - informants, for example?

NEXT: We discuss Giles v. California, as a warm-up for Heller.