September 9, 2012
"Decisional Minimalism and the Judicial Evaluation of Gun Regulations"The title of this post is the title of this intriguing looking new piece by Professor Richard Boldt now available via SSRN. Here is the abstract:
In District of Columbia v. Heller, a sharply divided United States Supreme Court held that the Second Amendment to the United States Constitution protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Justice Scalia, writing for the majority, made clear that the Court’s recognition of this right, which it found inconsistent with the District of Columbia’s restriction on the possession of handguns in the home, did not mean that persons have “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court chose not to delineate “the full scope of the Second Amendment,” and also “declin[ed] to establish a level of scrutiny for evaluating Second Amendment restrictions.” The majority opinion in Heller is significant both for the constitutional right it established and for the questions of scope and operation associated with that right that it left unresolved. Justice Scalia’s choice to write this “narrow” opinion has “unleashed a flood of litigation” in the lower courts, as litigants and judges have confronted the uncertainty purposely left by the Supreme Court majority.
Woollard v. Sheridan, a test case brought in the United States District Court for the District of Maryland by Raymond Woollard and the Second Amendment Foundation, is one of many such cases to be presented in recent months. While Justice Scalia’s Heller decision relies on familiar conservative interpretive methods, including a hard-edged textual analysis and a heavy dose of originalism, in order to find a “core” right of individual citizens to possess guns in their homes for self defense, his further choice to avoid resolving significant questions of scope and operation reflects a different form of conservative constitutional jurisprudence, which professor Cass Sunstein has termed “Burkean minimalism.” To the extent that the Supreme Court embraced Burkean minimalism in Heller, the tradition of balanced handgun regulation in the states generally, and the more particular regulatory practice in Maryland, ought to count significantly in both the determination of the scope of the right and in its operation. The exercise of judicial review under these circumstances should be characterized by a deferential stance toward the sensitive public policy judgments reached decades ago and maintained over the years by officials in the legislative and executive branches of state government. Many lower courts confronting these issues have explicitly or implicitly recognized the essentially conservative nature of this developing jurisprudence, its Burkean incrementalism. The District Court in Woollard chose a more aggressive path, and in that respect misread the important cautionary signals that the Supreme Court majority has provided.
"Execution by Accident: Evidentiary and Constitutional Problems with the 'Childhood Onset' Requirement in Atkins Claims"The title of this post is the title of this new article now up on SSRN authored by Steven Mulroy, which takes on one especially problematic aspect of how lower courts have implemented the Supreme Court's (now decade old) Atkins ruling. Here is the abstract:
The article discusses claims by capital defendants asserting that they are mentally retarded (MR) and thus cannot be executed under the 2002 Supreme Court holding in Atkins v. Virginia. Courts hearing such claims require proof that any intellectual deficits first occurred during childhood. This “childhood onset” prong is problematic for practical and theoretical reasons. As a practical matter, courts often improperly: (a) expect (rarely available) IQ test results dating from childhood; (b) dismiss MR proof if the defendant has minimal day-to-day competence, despite the medical consensus that MR persons can drive, cook, etc.; and (c) reject Atkins claims because the defendant also suffers from mental illness, incorrectly supposing that such illness can be singled out as the sole cause of intellectual deficits. The article suggests several rules regarding burden-shifting and admissibility to address these problems.
More fundamentally, the requirement itself is irrational and arguably constitutional. It means that a capital defendant with brain injury at age 17 will be treated differently from an identically challenged person injured at 19. In Atkins, the Supreme Court gave two reasons why MR and execution don’t mix: MR (i) reduces culpability and deterrability, and (ii) interferes with a defendant’s ability to get a fair trial. The onset requirement has no relevance to any of these reasons; it was adopted “accidentally” by states which simply copied without analysis a medical definition designed for distinct clinical purposes and which is referenced but not required by Atkins itself. The requirement arguably leads to “cruel and unusual punishment” under the Eighth Amendment, especially in light of the very recent Supreme Court cases involving juvenile defendants. Under Equal Protection challenge, it may merit heightened constitutional scrutiny since it burdens the fundamental right to life. Even under the more permissive “rational basis” standard, the onset requirement is constitutionally vulnerable.
VP candidate Paul Ryan says states should have right to legalize medical marijuanaAs reported in this AP article, "Republican vice presidential nominee Paul Ryan says the federal government shouldn’t interfere with states that have legalized medical marijuana." Here is more:
The Wisconsin congressman tells KRDO-TV in Colorado Springs that he personally doesn’t approve of medical marijuana laws. But he says that states should have the right to choose whether to legalize the drug for medical purposes.
In response to a reporter’s question, Ryan said: “It’s up to Coloradans to decide.” The interview was taped while Ryan campaigned this week in Colorado Springs and aired Friday.
I wonder if (when?) GOP Prez candidate Mitt Romney will echo this position as this issue continues to arise in swing state Colorado.
Some recent and older related posts on pot policies and politics:
- When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
- Two notable new pieces on pot policy debates coming to mainstream politics
- Colorado the new "ground zero" for debates over pot prohibitions and policies
- "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
- A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
- Could Romney appeal to independents and minorities with bold crime and punishment vision?
- "Marijuana Legalization Ballot Shows To Be Favored By Colorado Voters"
- New astute articles on the modern realities of pot politics, policies and practices