Topic: Law and Civil Liberties

McCain and Our Fundamental Rights

Sen. John McCain issued a ringing endorsement of the Supreme Court’s Heller decision:

Today’s ruling recognizes that gun ownership is a fundamental right – sacred, just as the right to free speech and assembly.

You can’t get much stronger than that. Except …  wait … what was it McCain said about our sacred right to free speech? Oh, right, two years ago on the Don Imus show he said, “I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt.” So when McCain says that our Second Amendment rights are just as fundamental and sacred as our First Amendment rights, maybe he’s pulling a bait-and-switch. Because he’s thoroughly indifferent to the First Amendment.

In his statement on the Heller decision McCain went on to say, “This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms.”

So true.

For His Own Good

It’s not one of the big cases decided by the Supreme Court this term, but Indiana v. Edwards  shows how these justices are all over the map – from a libertarian legal perspective.  The issue was whether a person can choose to represent himself in court in a criminal case.  This corner of the law was in pretty good shape – the rule that courts followed was this: If the defendant knowingly and voluntarily waives the right to counsel, he can proceed to defend himself (so long as he is orderly and follows the judge’s rules as all attorneys must do).  Some liberals object and say he’ll just screw up and the trial will not be fair.  The response has been that the trial judge should warn the defendant about such risks at the outset, but it’s his case, his liberty on the line, and thus his decision.

This term presented the case of a mentally ill defendant who wanted to represent himself.  The trial judge denied his request.  Some persons are found to be mentally incompetent to stand trial – even with an attorney’s help – but that was not the case here.  The defendant was found to be competent to stand trial but, according to the trial judge, incompetent to represent himself.  Counsel was appointed and he was subsequently convicted by a jury.  He appealed his case all the way to the Supreme Court, which affirmed the lower court’s handling of the case.  Interestingly, Justice Scalia filed a dissenting opinion (which Justice Thomas joined). 

Excerpt:

In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury–a specific right long understood as essential to a fair trial. … [T]he loss of ‘dignity’ the right is designed to prevent is not the defendant’s making a fool of himself by presenting an amateurish or even incoherent defense.  Rather, the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State–the dignity of individual choice. …

The facts of this case illustrate this point with the utmost clarity.  Edwards wished to take a self-defense case to the jury.  His counsel preferred a defense that focused on lack of intent.  Having been denied the right to conduct his own defense, Edwards was convicted without having had the opportunity to present to a jury the grounds he believed supported his innocence.  I do not doubt that he likely would have been convicted anyway.  But to hold that a defendant may be deprived of the right to make legal arguments for acquittal simply because a state-selected agent has made a different argument on his behalf is, as Justice Felix Frankfurter wrote, to ‘imprison a man in his privileges and call it the Constitution.’  In singling out mentally ill defendants for this treatment, the Court’s opinion does not even have the questionable virtue of being politically correct.  At a time when all society is trying to mainstream the mentally impaired, the Court permits them to be deprived of a basic constitutional right–for their own good.

Good stuff. 

The liberal votes here are probably driven by their pursuit of a ‘just’ outcome – no matter what the constitutional text says.  Justice Kennedy recently joined the liberals in defense of habeas corpus and the conservatives in defense of the right to keep and bear arms.  One might have expected him to follow the text here as well – but he joined the majority.  Alas, he seems to pursue the ‘just’ outcome just like the liberals.  That Alito and Roberts would part company with Scalia and Thomas in a case like this shows once again their more statist bent.

For the full opinion in this case, Indiana v. Edwards, go here (pdf).

Shall. Not. Be. Infringed.

To echo Tim Lynch’s previous post …

Bob Levy, Alan Gura, Dick Heller, and the other original plaintiffs in District of Columbia v. Heller are to be commended for securing a landmark Supreme Court ruling affirming that the Second Amendment protects the right of law abiding individuals to keep and bear arms.  It’s silly and sad that we needed such a ruling, and we should not forget the uncertainty and the threats to liberty that were made possible by so much constitutional revisionism over the past 40 years.

Levy and Gura deserve special recognition for their foresight and courage in pursuing this ruling despite considerable resistance.  That resistance came from a lot of people, with a lot of knowledge about the Second Amendment and the Supreme Court, a lot of influence, and a lot at stake in the outcome.  They argued this cause shouldn’t be pursued now, and they said it should be pursued by someone else.  Levy and Gura, as it were, stuck to their guns.  They have been vindicated, and we owe them big.

Praise is also due many such as Sanford Levinson, Robert J. Cottrol, and Stephen Halbrook, whose honest, careful scholarship ultimately defeated a very appealing myth.

Indeed, a good week for the Bill of Rights.

Supreme Court Still Split

Those who just days ago were proclaiming a new “era of good feelings” on the Court have been definitively proven wrong. Indeed, the last two weeks have seen more 5-4 divisions than the entire rest of the year to that point. While we have seen more unanimous rulings and fewer narrow splits than last term – when a full third of the cases came out 5-4 – this is clearly a function of the vagaries of the docket and not any shift in ideologies, judicial philosophies, or voting strategies. True, the Court under Chief Justice Roberts’ direction has increased the portion of business cases (typically more technical and therefore less divisive), but still the constitutional cases that catch the public’s eye – relating to social issues, civil rights, and national security – divide the Court on predictable lines. While this is in some senses unfortunate – we would prefer the highest court in the land to speak with one voice in resolving the nation’s deepest disputes – it is better for five justices to hold to their constitutional duty to say what the law is than to have nine produce a lukewarm opinion that either splits the baby or, worse, legislates from the bench. All in all it was a pretty good term for those concerned with upholding constitutional rights and limiting governmental powers (as well as reining in lawsuit abuse), but a sanguine consensus remains a pipe dream.

Good Day for the Bill of Rights

Congrats to Bob Levy, the prime mover behind yesterday’s landmark ruling concerning the right to keep and bear arms for self-defense.  Congrats also to his legal team of Alan Gura and Clark Neily.  And congrats to Eugene Volokh (of the Volokh Conspiracy blog) who had three of his law review articles cited in the majority opinion.

Brian Doherty, author of the forthcoming Cato book, Gun Control On Trial, has this piece in today’s Los Angeles Times. Cato associate policy analyst (and gun control expert) David Kopel offers his quick take here.  The Washington Post offers full coverage here.  More Cato analysis here.

Stephen Colbert and the Supreme Court

In the interview touted below by Jim Harper, the faux-neocon character played by Stephen Colbert asks constitutional scholar Neal Katyal, “Where does the Constitution get off telling the government what it can and cannot do?”

He’s ostensibly speaking for the four conservative justices who dissented in the Boumediene v. Bush case. But today he could be channeling the four liberal justices who dissented in the D.C. v. Heller case. Justice John Paul Stevens wrote that he couldn’t imagine that the Constitution would “limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

It is sadly hard to find justices who don’t, in some cases, sound like “Stephen Colbert”:

“Where does the Constitution get off telling the government what it can and cannot do?”

For a discussion of how the Constitution does in fact establish a government of delegated, enumerated, and thus limited powers, go here.

Supreme Court Crack-Up (and Down with Punitive Damages)

Certain commentators are noting the relative dearth of 5-4 decisions this term after a full third of last year’s cases were decided by that narrowest of margins (with Justice Kennedy in the majority in all of them).  That’s a bit premature, however, as already the last ten days have produced more 5-4 cases than the term leading up to them.  Tomorrow – with the contentious issues of energy deregulation, campaign finance, and, of course, the D.C. gun ban – will no doubt have even more.  They always leave the close cases for the end, folks, and none of today’s four cases were anywhere near unanimous. The two decisions that got all the attention, of course, were Kennedy v. Louisiana (capital child rape) and Exxon v. Baker (punitive damages from the Valdez spill).

I won’t say much about Kennedy, other than that, as he has so, so many times in the past, Justice Kennedy again shamelessly substituted his own policy preferences for the will of the people.  Regardless of one’s views on whether certain types of crimes short of murder (aggravated rape, child rape, treason, etc., etc.) warrant the death penalty, this is an issue properly left to the people and their elected representatives in state legislatures.  We do not pick nine (left alone five) black-robed lawyers to be our moral arbiters, philosopher-kings, or bureaucrats-in chief.  Kennedy versus Louisiana indeed!

As for Exxon, here we have the curious situation on the Court splitting 4-4 (Justice Alito having recused himself for owning Exxon stock) on the question of whether maritime law – the Court was only reviewing issues of federal maritime not constitutional law – permits punitive damages for the acts of agents.  This means that, on that issue, the Ninth Circuit’s opinion is summarily affirmed (without setting Supreme Court precedent), a terrible result because the Courts of Appeal are themselves split.  The Court went on, nevertheless and I think properly, by a 5-3 vote to vacate the $2.5 billion punitive damages award because, under maritime common law, punitives should be limited to the amount of compensatory damages (here $507.5 million).  The trial lawyers, as expected, are upset (about losing 80 percent of their contingency fee).  For further comment both on the issue of deadlock-producing recusals and punitive damages, I’ll save pixels here and refer you to my podcast. [Editor: Subscribe already!]

And again, stay tuned tomorrow for D.C. v. Heller (guns, for which my colleague Bob Levy is co-counsel and in which Cato filed an amicus brief), Davis v. FEC (campaign finance, in which we also have a brief), and Morgan Stanley v. Public Utility No.1 (electricity contracts).  The way the opinions have come down, smart money is on Scalia writing Heller (majority or plurarity) and Alito writing Davis.  Note that all three cases were long ago selected for inclusion in this year’s Cato Supreme Court Review.