Posts Tagged ‘Fourteenth Amendment’

Supreme Court to Decide Whether Second Amendment Applies to the States

Wednesday, September 30th, 2009

 

For the record, our position on gun control is to use both hands, relax, and control your breathing. But let’s talk about the law.

Last year, the Supreme Court historically decided that the Second Amendment gives individuals a constitutional right to possess firearms. The ruling, in District of Columbia v. Heller, was that the right of the People to bear arms was an individual right (so it wasn’t limited to militias or the military), and that it was a pre-existing right (recognized by the Constitution, and not created by it). The Court said there’s room for reasonable regulation, but an outright ban is unconstitutional.

The District of Columbia, however, is not a state. The Heller decision only directly applies at the federal level, which includes D.C. Whether the same rule applies to the states hasn’t been formally decided yet. And what counts as reasonable regulation at the state level is also an open question.

Obviously, there are plenty of folks who would like these things to be decided. Some want this to remain strictly a federal issue — the Bill of Rights originally did not apply to the states, and only gradually over the years have most (but not all) of the individual rights therein been incorporated by the Fourteenth Amendment. The Second, Third and Seventh Amendments have not yet been held to apply to the states.

Others, of course, want this individual right to be incorporated by the Fourteenth Amendment’s “privileges and immunities clause.” (That clause is what gives individuals the Bill of Rights protections from governmental intrusions, at the state and local level, by virtue of their national citizenship. So it protects you from your local cops’ infringement of speech, unreasonable search and seizure, etc.)

The Circuits are split on the issue. The Ninth Circuit ruled earlier this year that the Fourteenth Amendment incorporates the Second Amendment to the state level. But the Seventh Circuit said no, it doesn’t. So it’s certainly a ripe issue for certiorari.

Any number of cases have been percolating in the system, really, to give the Supreme Court a chance to decide the issue. The NRA alone filed five cases on the issue in Illinois alone. So it hasn’t been so much a question of whether the Court would decide it, but which case it would choose to hear.

Well, this morning, the Supremes announced the case. McDonald v. Chicago (08-1521) involves pretty much the same issues as Heller. Chicago’s gun-control laws are practically identical to those D.C. had, so it really is a good case to narrowly decide whether the rule should be extended to the states. (The various court filings can be found here.)

The Court’s calendar is full for the rest of the year, so oral arguments won’t be scheduled until January at the earliest.

Nat Hentoff Wrong on Rights? Say It Ain’t So!

Monday, May 11th, 2009

The clip above is from a speech Nat Hentoff gave a little while ago, summarizing some of the problems he has with hate crime legislation in general, and with the bill currently being rammed through Congress. The day after he gave that speech, we wrote in more detail about our own concerns with the law.

Although we do not like hate crimes any more than Mr. Hentoff does, we differ with him in that we don’t think they’re per se unconstitutional or inconsistent with American jurisprudence.

Hate crime laws stink because they fail to distinguish between criminal conduct and that which is merely nasty. They take something offensive, and call it an offense. That’s not what criminal law is for. The purpose of criminal law is to identify those acts that are not merely unpleasant, but which are so dangerous to society that they call out for the State to impose its might on the individual and punish him by taking away his life, liberty or property.

Now, there is a PC echo chamber that has a disproportionate voice in today’s government, and in that chamber “hate” really is seen as something requiring extra punishment. Commiting a crime with hate required more punishment than if you committed the same crime for some other reason. But outside of that echo chamber, the mainstream culture just doesn’t see a distasteful motive as a justification for extra punishment.

Hate crime laws also stink because they are inherently un-American. They’re something you’d more expect to see in continental Europe, where state dominion over the individual has been the norm since time out of mind, and there are fewer protections for offensive thoughts. Hate crimes are the stuff of the horror show that England has lately become, as London’s Mayor Boris Johnson writes today, complaining of an England with “its addiction to political correctness — where people are increasingly confused and panic-stricken about what they can say and what is forbidden, a culture where a police officer can seriously think he is right to arrest a protester for calling a police horse ‘gay.’ [England’s] courts and tribunals are clogged with people claiming to have suffered insults of one kind or another, and a country once famous for free speech is now hysterically and expensively sensitive to anything that could be taken as a slight.” That is not the direction in which Americans tend to see themselves heading. Off campus, America simply is not a place where the ASBO could exist. And so it is not a place where hate crimes ought to exist.

That doesn’t mean such laws are necessarily inconsistent with the underlying principles of how we make criminal laws in general. They may not fit with American sensibilities, but they don’t violate our jurisprudence. As we wrote last time, the general idea of hate crimes is simply to add a new level of mens rea. It’s not only doable, it’s something that we’ve done before.

Today, Mr. Hentoff published another piece on the upcoming hate-crimes law, spelling out why he thinks it is unconstitutional and not merely a bad idea. It “violates all these constitutional provisions,” he says: the First Amendment, equal protection of the laws under the Fourteenth Amendment, and the double jeopardy clause of the Fifth Amendment.

We do think the bill, as written, is so vague that is must be voided by the Rule of Lenity. And we do think that, as written, it could well have unintended consequences, and create far more injustice than it’s supposed to prevent.

But unconstitutional? We hate to say this, but we think Mr. Hentoff… we think he… (we can’t believe we’re saying this about one of our intellectual idols)… we think Mr. Hentoff has mischaracterized the rights and protections of the Constitution.

How does it violate the First Amendment? Hentoff acknowledges that the bill explicitly says that it isn’t to be read so as to “prohibit any expressive conduct protected from legal prohibition” or speech “protected by the free speech or free exercise clauses in the First Amendment.” But he alludes to 18 U.S.C. § 2(a), which makes you punishable as a principal if you merely “abet, counsel, command or induce” a crime. Speech that induces a hate crime would make you guilty of the hate crime, and so free-speech protections would be violated.

This point was raised in 2007, the last time this bill was considered, when Democratic Rep. Artur Davis said that the law could conceivably be used to prosecute a pastor who had preached that homosexuality is a sin, if it induced someone else to commit violence against a gay person.

There are two big problems here. First of all, the First Amendment protection of free speech is not absolute, and Hentoff of all people should know this. There is always a balancing of the right to free expression against the harm to society that such expression may cause. You don’t have a free-speech right to shout that you have a bomb while standing in line at an airport. You don’t have a free-speech right to offer to sell crack to an undercover. When speech makes out an otherwise criminal act, you’re going to face jail for having said those words. And the First Amendment won’t protect you.

The other problem is that 18 U.S.C. § 2 does not impose criminal liability for unexpected consequences. A pastor who speaks about the Bible to his congregation isn’t going to be liable for subsequent acts of a deviant member of his flock. That’s not the same as a similar authority figure instructing an unstable young man that God wants him to kill gay people. There’s an element of willfulness or recklessness that’s required. And if you willfully said something to induce an act of violence, then it is not speech that the First Amendment protects.

How does this hate crimes bill violate the Fourteenth Amendment? Hentoff says it violates equal protection, not in the way it’s written, but in the way it will be enforced. A white person targeting black people will be punished for the hate crime, but a black person targeting whites won’t be.

That may make intuitive sense, as the law was originally conceived to battle discrimination against minorities. And prosecutors may choose not to apply it if the victim is a white male. That has happened before, as Hentoff points out. A gang in Colorado had an initiation ritual of raping a white woman, and the prosecutor in Boulder opted not to charge a hate crime there.

Nevertheless, the law itself, as written, does not violate equal protection. Yes, prosecutors will (and must) always have the discretion to choose whether to bring a charge or not in a given case. And it is entirely likely that a black guy who punches someone in the nose just because they’re white may not be charged with a hate crime, even though it clearly fits the bill, because of other factors going through the prosecutor’s head — it might not be politically savvy to further penalize someone who (to the paternalistic PC) already had to suffer the discrimination and indignity that made him act out like this. Or it just might not feel right.

But then again, this bill, as amended, is now written very broadly. It casts a much wider net than mere black vs. white. In addition to race, it considers violence committed because of national origin, religion, sex, sexual preference and disability. Everyone is a potential victim of a hate crime now. There are going to be plenty of opportunities to charge members of “victim classes” for hate crimes when they attack members of other victim classes. A disparate effect has yet to occur, and there’s good reason to believe that it never will.

And how does the bill violate double jeopardy? Hentoff is concerned that someone could be charged with an assault in state court, and be found not guilty, only to find himself haled into federal court to face a new prosecution for the same act under the federal hate crime law.

Unfortunately, this is not a double jeopardy problem. It is not unconstitutional for the feds to prosecute someone for a federal crime after he’s already gone through a prosecution for the same act in state court. Double jeopardy does not apply to prosecutions brought by different sovereigns. Each state is a separate sovereign, in addition to the federal government. If you stand in Manhattan and shoot someone on the other side of the Hudson in New Jersey, both states are allowed to prosecute you for it. Some states have extra protections for the individual here — New York won’t prosecute someone after the feds did — but the feds are not so constrained.

And the feds already do this kind of thing routinely with gun laws. If you committed certain crimes with a gun, you can be prosecuted in state court for the crime, and then afterwards get prosecuted in federal court for possessing the gun at the time. These cases are extremely straightforward — either you possessed the gun or you didn’t — and they often go to trial, because of mandatory sentencing, so young federal prosecutors tend to cut their teeth on this stuff. It’s routine, and it does not at all violate double jeopardy.

* * * * *

Hentoff ends his piece today by urging President Obama, before signing the bill into law, to refresh his understanding of the Constitution. He suggests that, as the “former senior lecturer in that document at the University of Chicago, [Obama] should at least take it with him on Air Force One, where there are fewer necessary distractions, and familiarize himself with what the Constitution actually says.”

We love Nat Hentoff. We idolize the man. We agree that hate crime laws have no place in this country. But we think he ought to take his own advice and re-familiarize himself with what the Constitution does and does not protect.

Why Liberal Justices Agree that “Reverse Batson” Error Doesn’t Violate Due Process

Tuesday, March 31st, 2009

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In a unanimous decision this morning, the Supreme Court ruled that “there is no freestanding constitutional right to peremptory challenges,” during jury selection in criminal trials. So even if a judge erroneously refuses to let a defendant challenge a juror, so long as that juror couldn’t be challenged for cause, there is no constitutional violation if that juror is seated.

This was an important case, as the issue really had never been decided before. It may perhaps be surprising that even the more liberal Justices agreed with such an important and apparently anti-defendant ruling as this one. But it really makes sense if you think about it. First, a quick summary of the case:

Writing for the unanimous Court in Rivera v. Illinois, Justice Ginsburg put the issue pretty well in her opening paragraph: “If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction?”

Michael Rivera was on trial for first-degree murder. During jury selection, each side was allowed to make peremptory challenges to potential jurors, who otherwise could not have been excluded for cause. Rivera’s lawyer, having already exercised two peremptories against women, now made a third challenge against a female.

The trial judge, said no way, finding sua sponte that the defense was excluding jurors on the basis of sex in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The juror was seated, and was then selected as the foreperson of the jury. The jury convicted Rivera, and sentenced him to 85 years in prison.

Rivera appealed, saying that the peremptory challenge should have been allowed, and that the error required reversal. The state supreme court decided that any error in seating the juror would have been harmless.

On appeal to the U.S. Supreme Court, Rivera first argued that the erroneous denial of a peremptory challenge means the jury contains someone who shouldn’t have been there, so the jury is illegally constituted, and therefore its verdict is per se invalid. The review shouldn’t be for harmless error, because nobody knows what a proper jury would have thought, and so reversal must be required.

The Court didn’t buy those arguments. Peremptory challenges aren’t guaranteed by the Constitution, but instead are permitted by individual state laws, and are merely “a creature of statute.” States can and do prohibit them altogether. So even a mistake as alleged here wouldn’t rise to the level of a constitutional violation.

The Due Process Clause of the 14th Amendment doesn’t elevate the state law to a federal concern, either, because that Clause only protects fundamental fairness in criminal trials. It does not protect the mere “meticulous observance of state procedural prescriptions.” An error of state law isn’t automatically a Due Process violation. And to hold now that a one-time, good-faith misapplication of Batson violates Due Process would probably create the wrong incentive, and make judges less likely to apply Batson in future cases.

So, focusing on fundamental fairness, Ginsburg concluded that the judge’s refusal to reject the juror didn’t have any effect. Rivera’s right to a fair trial before an impartial jury wasn’t affected, because everyone agreed that none of the jurors could have been removed for cause, and none were biased. So it doesn’t matter whether a different panel might have decided differently. All that matters is that the jury did not violate the Sixth Amendment right to an impartial jury.

The Court also rejected “the notion that a juror is constitutionally disqualified” just because she was aware that the defendant had challenged her. Rivera got a fair trial, with an impartial jury, so he got “precisely what due process required.”

The Court’s decision was not only unanimous, but strongly stated. This may have come as a surprise to Court-watchers who might expect some of the more liberal Justices to argue in favor of more rights for criminal defendants.

However, it could not have been a surprise to any who witnessed the oral arguments. Those very Justices on whom Rivera probably relied were his harshest critics. Ginsburg expressed disdain, calling the argument that a wrongly-seated jury is per se invalid “quite a stretch.” Souter pointed out that the Illinois Supreme Court gets to interpret its state law, not the U.S. Supreme Court, and Illinois had held that there wasn’t a violation in the first place. Breyer observed that Rivera’s arguments would create a huge “slippery slope” of making a constitutional issue out of every potential jury defect. Kennedy accused Rivera of making a sweeping proposition requiring massive supervision and intrusion of state courts by federal courts. Ginsburg and Souter also aggressively challenged Rivera’s interpretation of the facts and the decision below. Stevens even suggested that the Court didn’t have jurisdiction to review the case in the first place.

By the end of the argument, it was clear that Rivera was going to lose this one badly. Kennedy’s last question, to the U.S. Government’s lawyer, was essentially along the lines of “you’re going to win, but there are lots of alternative ways we could rule in your favor, so which one do you think is the most straightforward?”

Apart from the clues at oral argument, this ruling shouldn’t really be a surprise to anyone familiar with the ever-evolving law of peremptory challenges. Swain said systematically excluding members of the defendant’s race from the jury pool violates the defendant’s rights. Batson and its progeny expanded the rule to say that prosecutors who exercise peremptories to discriminate against any race or sex (not just the defendant’s) violate, not the defendant’s rights, but the rights of the public to serve on juries (though the penalty benefits not the public but the defendant). J.E.B. v. T.B. extended that rule to say defendants can’t violate the public’s rights any more than prosecutors can (the “reverse Batson” rule).

These cases show that the balance has shifted — away from protecting individual defendants from discrimination that keeps people like them out of the jury box, and towards protecting a generalized state interest in protecting society from the kinds of discrimination we don’t like.

So the Court wasn’t about to stand in the way of the arrow of history, by imposing a rule that would be a disincentive to courts, discouraging them from stopping discrimination.

Looked at that way, it’s hardly surprising that the more liberal Justices were the ones most antagonistic to the defendant in this case. Ruling in Rivera’s favor would have meant undoing liberal protections against general discrimination in society. There was no concrete reason to think Rivera’s jury was actually unfair, so there was no strong sentiment in his favor. The liberal interest in societal justice simply outweighed any concerns for individual fairness here.