Thursday, June 26, 2008

and Heller Reactions

The in the past few weeks the Supreme Court has issued some closely decided rulings that touch on some pretty hot topics.

First, in http://www.cnn.com/2008/US/06/12/scotus/index.html, the justices voted 5-4 that Gitmo detainees have the right to challenge their status as enemy combatants. Second, in Kennedy v. Louisiana, the justices voted 5-4 that Lousiana could not execute a man for raping a child. Finally, in District of Columbia v. Heller, the justices voted 5-4 to overturn DC's blanket ban on handgun ownership. I definitely agree with two of them, and agree with the outcome of one, but not the reasoning, of another. Here's what I mean:

If you just read the right's reaction to Boumediene without any other information, you'd probably think that SCOTUS had officially sanctioned the 9/11 attacks, or something. Mark Leven says "I fear for my country. I really do." Andy McCarthy says that "the American people have lost to radical Islam." This is nonsense. SCOTUS didn't give detainees the right to challenge their detention, it gave them the right to challenge their status as unlawful enemy combantants. That's an important distinction. The Bush administration has declared that these people it designates as 'enemy combatants' are so dangerous and their intelligence so sensitive that these prisoners cannot EVER see the light of day ever again. No lawyers, no courtroom, no judge, no communication or pictures of family, nothing. Some of them probably are that dangerous. The thing is, all of this is based on the administration's say-so. Just take their word for it, these people are that bad. Except we know of a couple cases where, despite earlier instances to contrary, innocent civilians were swept up in this legal limbo net, and treated like hell for a couple years before the military released them out of the goodness of their own heart. All SCOTUS did was say: look, if you're going to keep these people in shackles and deny them any and all legal recourse, you're going to have to give a bit of proof that they're dangerous, and that proof has to be a bit more than just "we say so". Good verdict.

My Kennedy position is a bit more nuanced. In Kennedy the court knocked down the dealth penalty as a punishment for child rape because it violated the constitution's ban on cruel and unusual punishment. But the reasoning seems flawed to me. First, if you rule that death is appropriate punishment in some crimes but not others, you cannot reasonably argue that capital punishment is unusual. The deciding factor then becomes cruel, which the court has repeatedly ruled is measured proportionately to the crime, which is the entire reason we have prosecutorial discretion. Certainly not all child rape deserves capital punishment, but if you read the case description, you find out pretty quickly that this crime was on a whole different level. It was horrendous. And the prosecutors used their discretion to decide that, in this particular case, capital punishment was an appropriate punishment. I just don't see how that violates the constitution. The reason my position is nuanced, though, is because the end result is one that I agree with.
I'm opposed to the death penalty not for the ideological reason that killing is always wrong, but for the more practical reason that someday we'll execute an innocent person. I think it should exist for really bad crimes (on the order of genocide and heinous war crimes), but for lesser crimes incarceration without parole is plenty. So while the outcome furthers the goal, it does so in a way that I don't agree with. Not so great verdict.

And finally, the

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