Taking Liberties Back

Civil liberties narrowly survived the recent term of the Supreme Court, but libertarians should be concerned about the way they shook out. In 5-4 decisions in June, the high court affirmed the rights to habeas corpus in the courts and keeping shooting irons at home. But the only common vote in those decisions was Justice Anthony Kennedy.

In the Boumediene decision, released June 12, Kennedy and the “liberal” wing on the court found that, as Article 1, Section 9, plainly states, “The Privilege of the writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.” The court found that the Constitution requires that prisoners of the United States are entitled to access to the courts, even if they are held in military prisons outside the United States. There is no longer a “law-free zone” in which the president can, on his own authority, hold prisoners without recourse to the courts.

The court in 2004 had ruled, in Rasul v. Bush, that a federal statute granting habeas review covered prisoners at Guantanamo. The Rasul decision upheld the rule of law, but the Republican Congress then passed the Military Commissions Act in an attempt to strip the courts of jurisdiction over detainees’ claims. That forced the court’s hand to settle the constitutional question, and it upheld the ancient right of access to the courts and rejected the president’s claim of practically unlimited executive power during “war.”

Justice Antonin Scalia, in dissent, warned melodramatically that the Boumediene decision “will almost certainly cause more Americans to be killed.”

Then Kennedy joined the “conservative” wing on the court in the Heller decision on gun control, released June 26. The 5-4 majority found that, although the Second Amendment of the Bill of Rights is ambiguous, with its reference to “A well regulated Militia, being necessary to the security of a free State,” the operative clause is that “the right of the people to keep and bear arms, shall not be infringed.” So the court found that individuals have a right to keep guns in their homes (at least in the District of Columbia).

The Heller ruling has divided liberals but we think it conforms with the original intent of the Second Amendment. [See Jesse Jackson’s column on page 14 for the other side.] We don’t think that, six years after the successful revolution against a king who tried to limit the right to personal firearms, the Founders sought to limit individual rights to firearms. Gun advocates may now argue whether that right extends to automatic weapons and assault rifles but we would not bar people from keeping conventional guns in their homes for defensive or sporting purposes.

The Heller ruling appeared to cast aside the reasoning of the Supreme Court in 1939 in US v. Miller that the right to keep and bear arms was collective, not individual. That court decided 8-0 that a federal prohibition against sawed-off shotguns was not unconstitutional because “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.” Dahlia Lithwick of Slate.com noted that in the nearly 70 years since Miller, federal appeals courts have relied on its collective rights theories more than 40 times and new Supreme Courts declined to consider nearly half of those cases, allowing the rulings to stand because it was considered a closed matter. But the Heller decision showed there is no such thing as a closed matter with this court.

The Heller decision appears to allow “reasonable regulation” of guns, such as “longstanding prohibitions” against sawed-off shotguns. But that could point to years of gun cases going to the court before the matter approaches settled law again.

It’s fine to be a Second Amendment absolutist. But we predict that Scalia’s majority opinion in the Heller case, allowing everybody to keep loaded and accessible guns in their homes, will cause many more deaths of innocent Americans than the Boumediene opinion that Gitmo prisoners are entitled to court hearings.

We also think the court was correct in its 5-4 decision on June 25 that struck down the death penalty for child rapists, as cruel and unusual punishment under the Eighth Amendment. We don’t have sympathy for child rapists, but we are persuaded that not only is it wrong to put a young victim of sexual abuse in a position of sending someone to be executed, but many of the states allowing capital punishment for child rape have a poor record of ensuring qualified defense counsel and fair trials for the accused. In the Louisiana case at issue, the young victim gave conflicting accounts of who raped her, at first blaming neighborhood boys and only later, at the prodding of police, identifying her stepfather. Police may have framed the guilty man in this case, but a life sentence is sufficient punishment.

If the court is still a close call on civil liberties, it is an easy mark for corporate prerogatives. The court set aside 90% of the punitive damages awarded by an Alaska jury for victims of the 1989 Exxon Valdez oil spill. An appeals court already had cut in half the $5 billion a jury decided ExxonMobil Corp. should pay for the disastrous oil spill that fouled more than 1,200 miles of Alaskan coastline. The Supreme Court, in a 6-2 decision on June 25, with Exxon stockholder Sam Alito sitting this one out, further cut the punitive damages, from $2.5 billion—which Exxon earns in net profits every three weeks—to $507.5 million. John Paul Stevens and Ruth Bader Ginsburg dissented.

Doug Kendall, president of the progressive Constitutional Accountability Center (theusconstitution.org), wrote at HuffingtonPost.com, “Like other recent cases such as Ledbetter v. Goodyear (equal pay for women), Exxon v. Baker illustrates that the conservative majority on the Supreme Court is willing to bend the law in favor of corporate interests that have improperly prevailed too often in recent years. It is a reminder, if progressives need one, of just how important it is to fight for the future of the Supreme Court.”

Send Reinforcements

Barack Obama upset liberals in June when he announced he would support revisions of the Foreign Intelligence Surveillance Act that included retroactive immunity for telecoms that cooperated with the Bush administration’s illegal wiretapping operations. Obama previously had promised to filibuster the bill if it immunized the telecoms. Democratic leaders presented the bill as a compromise and Obama said it “firmly re-establishes basic judicial oversight over all domestic surveillance in the future.” But the judicial review is mostly after the fact. The bill, which was approved by the Senate as we went to press, makes it easier to spy on Americans at home and it defines national security so broadly that the term could mean almost anything a president says it means. The Bush administration got everything it wanted and it still won’t answer congressional subpoenas about the liberties it has taken.

But Obama endorsed the Boumediene decision as “a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo” and “an important step toward re-establishing our credibility as a nation committed to the rule of law.” John McCain called it “one of the worst decisions in the history of this country.” That’s right, upholding habeas corpus ranks down there with Dred Scott, Plessy v. Ferguson and Bush v. Gore.

McCain has said he would appoint conservative justices like Sam Alito and John Roberts to the court. If he is elected you will be able to buy a big gun and you might be able to wave your gun around in public. But if Homeland Security gets a tip that you are a threat, you can bet that the SWAT team that comes to get you will have bigger guns. Then good luck getting a court to hear your habeas corpus appeal from Gitmo. — JMC

(NOTE: The section on the Supreme Court decision in the ExxonMobil damage award was corrected 7/22/08.)

From The Progressive Populist, August 1, 2008

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