That being said, the current SCOTUS handed down a bunch of stuff in the past couple of weeks, and it's all important. I can guarantee that this post will be of a rambling sort, so you can bail now if that's an issue. I'll also be linking to straight opinions, not analysis, so if you want Cliff Notes on the cases you'll have to hit up the Googleverse yourself. I personally read SCOTUSBlog, and recommend it to all.
The easy one, for me, is the DC vs. Heller case. DC had a handgun ban, the Court struck it down, pretty clear but apparently needed statement on the Second Amendment. To me, the great debate over guns in this country has very little to do with the actual Second Amendment and more to do with how that Amendment should manifest in society. The actual text, for those of you who have not actually read it (SHAME), reads as follows:
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.
The big argument comes from whether part B is contingent on part A...are people allowed to have guns only if they are in a militia, or is the Second Amendment a free pass? I find it to be fairly clear - the prevailing sentiment is that the people should have be able to defend themselves if the government gets up to nefarious shenanigans, thus, guns are okay. I think the sentiment is outdated but clear...I seriously doubt that we will reach a point where the government's misbehavior will prompt a conflict involving gunfire in today's modern society, but the Constitution and Bill of Rights were drawn up in a period of great political unrest and paranoia, and it's important to remember that many of the people involved were NOT convinced that this little social experiment would actually work.
That being said, I actually think that the relevance of the Second Amendment to modern times is where today's squabbling comes from. As I noted above, I find it seriously unlikely that we will ever see actual armed conflict between the US government and US citizens, and if that be the case, what arms should be allowed, how should they be controlled, and what use is appropriate? Many Second Amendment advocates cling to reasons like gun collection and hunting as justification, which removes the militia aspect of the Amendment. Can you take half the Amendment away and rely solely on the latter half? I think so, logically. But legally, Constitutionally, I have a serious aversion to that kind of cherry-picking, and moreover, I don't think you get to be all "but I want to hunt" and abandon the militia component, and in the same breath finish up with "and that's why I should be able to stock an arsenal of full-auto weapons and a bazooka."
I would like to see some basic Federal guidelines laid down as far as the common sense aspects of firearm ownership...storage regulations, concealed carry guidelines, registration rules, etc., and then allow the states to add on to those Federal mandates as necessary. I think the Founders expected the states to act much more independently than they have come to, and this is what necessitates establishing rules on a Federal level. All that being said, I like the Heller decision...DC's myriad crime issues aside, they don't currently have the right to restrict handgun ownership. It will be really interesting to see how the Heller case is unpacked both by government and by the Court in the cases that are sure to follow.
The Court also ruled on whether or not the death penalty is appropriate for those convicted of child rape in Kennedy vs. Louisiana. The Court struck down a Louisiana law allowing convicted child rapists to be executed via the Eighth Amendment, and I can imagine that a lot of people have mixed feelings about this. Even the staunchest death penalty opponent must look at a person capable of raping a child and consider putting two right between the bastard's eyes. It's such a heinous, inhuman crime that when you consider it fully, it's so, so simple to fall into thinking "if not for this, for what?" My mother believes that imprisoning someone for life is worse than executing them, because they have to think about what they did for their entire life. I would love for that to be true, but I don't think it is. I believe that there are some horrible sociopathic people out there who are simply remorseless, and will never feel any kind of regret for whatever crime they committed, be it murder, rape, whatever. The sad truth is that this same concept is what makes child rape (and any rape, really) so horrible...the victims DO spend their lives affected by the crime.
At the same time, it seems wrong for a government to stoop to the level of a soulless murderer and snuff out a life. Maybe it's overly idealistic, but I just feel like the death penalty is below the United States. Sometimes you do have to be the bigger person, and when faced with the scum of the Earth, you just need to persevere. I don't have some detailed matrix of logic to base this on, I just feel like the death penalty is wrong, like it's giving up. At the end of the day, I think the Kennedy case gets it right...horrible though the crime may be, justice isn't the same as revenge.
Most exciting for me is the Boumediene v. Bush case which dealt strongly with the Guantanamo detainees. Not only did my ConLaw course deal heavily in the latter half of the semester with the ball of barbed wire and fighty snakes that is the Guantanamo legal shitshow, but the issue of Guantanamo detainees has been of great concern to me over the past several years just as a standard issue citizen (more on that later). Basically, the Court told the government to stop pissing around and start trying Gitmo detainees in a timely manner, and seriously, can we all say "it's about goddamn time?" To me, the abandonment of habeas corpus has been bizarre at best, throughout this war; if these detainees are truly the key players the Administration claims they are, why not bring them to trial as quickly as possible, get them dealt with, and allow yourself to claim these small victories as quickly and often as possible? This Administration and its war is in sore need of positivity, and bringing Dangerous War Criminals to justice would certainly qualify. In this light, the delay in trials seems like a declaration that the Administatration has nothing on these people. To my mind, the whole situation has been waiting for a good swift kick in the ass, and this one, too, will be interesting to watch shake out.
I...hate the Geneva Convention, okay, I think it's outdated, slow, and that it boxes itself into a corner by relying on the assumption that combatants will be members of uniformed militaries. That being said, it provides a baseline for running the most humane war possible. America is supposed to be the greatest nation in the world...the most upstanding, the most sensible, the most magnanimous. We hold and declare these beliefs daily, yet lately, it seems like these declarations do nothing but highlight abundant hypocrisy. This Administration in particular seems hellbent on finding ways to do what they want to do, regardless of any kind of moral baseline settled on at any point in history. I find that endlessly worrying, and wonder why more people don't as well. The fact that we NEEDED a Boumediene ruling really makes me worry about where we're going and where we've arrived.
I have referred to and drawn on several somewhat vague feelings of what is correct conduct for the United States. The Constitution is such an amazing document...I'll try to spare you too much dorky poeticism but one of the coolest things about it is its flexibility. The fact that it's endured for centuries as an effective ruling document for a nation that has expanded exponentially during its use is so spectacular and awe-inspiring. It has endured sweeping social, political and technological changes, and survived thousands of major foreign and domestic challenges that have changed the shape of politics in the United States, yet this same document remains relevant and true. However, it seems that we have come to a point where one of the Constitution's greatest strengths has become one of its greatest weaknesses, as Presidents and Congresses and Supreme Courts pull it in every direction to get what they want. I have complained before about Judge Richard Posner's book for my ConLaw course, Not A Suicide Pact: The Constitution in a Time of National Emergency, and my main issue with it was that Posner spent most of his time refusing to plant his flag on any side of any issue. Posner is a brilliant legal mind, and because of this, he can bend the Constitution to whatever end he wants...most of his arguments follow an irritating "you could say this...unless you say this...until you examine this...and contemplate that...and all being said, it's all important" pattern, like some kind of deranged game of Constitutional ping pong. The thing is, Posner is writing as an academic, and others are playing this game with people's lives and the People's law.
I always thought that there were certain things all Americans could agree that America was all about...a certain uprightness of character, a belief in true justice, the freedom to make of ourselves what we will, aspirations to do better and to pull our neighbors along with us, a desire to make the world better. In fact, within my lifetime, I've seen people stand up singing the praises of these ideals, shouting out the dream of a glorious America, after September 11th, when we were forced to examine the ways in which we were different from the rest of the world. Since then, I don't know what happened, but something is wrong. Something is wrong, and we're all standing down and letting it happen. I hope that whoever the next President is makes a priority of pushing these values once more to the forefront and appointing Supreme Court Justices who will do the same.
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A lot of the bloggers I frequent consider the 2A to be the "reset button" of the Constitution. The government has to know at all times that if they become too abusive, the people retain the ability to remove them by force. That is, in my opinion, the entire purpose of the amendment. Hunting is entirely peripheral, and self-defense from criminals is a good by-product, but what no person in government seems to be able to admit is that the Founders included in their document a provision to ensure the possibility of violent overthrow of the government. Even Scalia shows his own denial of this fact when he asserts that gun ownership is permissible for "lawful purposes."
ReplyDeleteWith that purpose in mind, the militia aspect becomes much clearer. Modern advocates of restriction point to the National Guard as an example of the militia but this is entirely contrary to the intent of the Framers. The militia is the people - regular citizens who are so numerous and diffuse that they cannot be overcome short of total destruction. A standing army under government control (whether state or federal) can never fulfill this role.
As to the possibility of future insurrection, I agree with you but for different reasons. The government will continue to grow; that's what it does. I fear that it will grow so incrementally that the people will never be so shocked as to rise up in the manner of our Founders. If you don't think we're approaching a reasonable boiling point, then I fear you've not been paying attention. This same Court has decided that a city may evict you from your home if it thinks somebody else will get them more tax revenue with it. Local police chiefs are enacting plans to set up checkpoints in neighborhoods and deny entry to people they judge as not belonging there.
Anyway, happy Independence Day to you, Jos.