The Roberts Court: The Struggle for the Constitution (26 page)

In a concession that angered many in the gun rights community, Gura told the Court that the government could ban arms not appropriate for civilian use, such as machine guns, or plastic, undetectable handguns.

Dellinger returned to the lectern for rebuttal and immediately ran into trouble from the chief justice, who focused on the District’s requirement that all firearms (rifles, shotguns, and pre-ban handguns) be “unloaded and disassembled or bound by a trigger-lock or similar device.”

Roberts asked how many minutes it takes to remove a trigger lock and load a rifle.

Dellinger said a gun with a numerical code would take about three seconds.

Scalia interjected, “You turn on the lamp next to your bed so you can turn the knob at 3-22-95 . . .”

And Roberts, to laughter in the courtroom, added, “So then you turn on the lamp, you pick up your reading glasses . . .”

Dellinger said, “The District believes that what is important here is the ban on handguns. And it also believes that you’re entitled to have a functional usable weapon for self-defense in the home, and that’s why this is a very proportionate law.”

By the end of the arguments, the Court appeared divided along ideological lines, with the five conservatives supporting the individual right interpretation and the four liberals siding with the militia-based collective rights view.

After the argument, the lawyers and their clients followed the tradition in high-profile cases of walking down the building’s front steps to the television cameras awaiting their recap of the arguments inside. Gura and Levy then headed over to the Cato Institute to handle press calls. Neily stayed with Dick Heller to help him navigate the media. Henigan of the Brady Center stood with a team of his center’s lawyers. “It was basically a wake,” he said. “A lot of head-shaking.”

The justices would not discuss the case until their conference that week. They would vote during their conference, and opinion assignments
would be given soon afterwards. But work on the case actually had begun much earlier and in depth in one justice’s chambers.

“I had felt very strongly that
Miller
had been law for nearly a hundred years,” said Justice Stevens. “You don’t upset cases like that except for an awfully good reason. I remember asking my clerk when the case was coming up to tell me if there had been any major changes in the scholarship that differed. She started to work on that very early in the case and did a very thorough study for me about state constitutional provisions bearing on gun control, some of which expansively covered hunting and personal defense. We found out [James] Madison’s draft definitely differed from those state constitutions and we thought that was powerful evidence that the preamble meant what it said.”

Only two states had provisions that addressed self-defense and hunting. The others, like James Madison’s draft of the amendment, addressed the need to preserve militias. The combination of the
Miller
decision, even though poorly drafted, Madison’s draft, state constitutional provisions, and the Framers’ overriding concern for the maintenance of the militia convinced Stevens that the Second Amendment was adopted to protect the right of the people to preserve a well-regulated militia.

After the conference vote on the
Heller
case, Chief Justice Roberts assigned the majority opinion to Justice Scalia. Stevens, the most senior justice in the minority, chose not to assign the lead dissent to Souter, Ginsburg, or Breyer, who also were in the minority, but to keep the dissent for himself; Breyer decided to write a separate dissent.

Scalia was thrilled with the assignment—his most important opinion since joining the Court and one that would be a major “vindication of originalism.”

As chief justice, Roberts has shown himself to be fair in his use of what he calls his only real power—the assigning of opinions—as was his predecessor, William H. Rehnquist, agree the justices. And that fairness has been an important contribution to the Court’s well-known collegiality under both men.

Recalling Roberts’s assignment of
Heller
, Scalia commented, “He assigned
it to me, for which I was very grateful because he knew I would care a lot about it. And he knew it would be a big, big opinion, which he could have kept for himself. I was very grateful for that.”

After receiving the assignment of the majority opinion, Scalia had one of his clerks take on the research into the history of the Second Amendment. “It was an enormous effort. My law clerk working on that case was just a bear. He was fantastic.” What also helped—and what showed how much had changed since his early years on the Court, when he and his clerks labored to do historical research without assistance—were the amicus briefs filed in
Heller
, according to Scalia.

“There was a huge amount of historical assistance from legal historians and others,” he said. “That has made the practice of originalism a lot easier. When there are two people on the Court who are going to be affected by that argument, of course counsel will try to get those two votes by giving any historical evidence they can gin up.”

Scalia said he likes historians for their raw material, but he does not think they are impartial. “They’re just as causey as anybody else. They won’t gather to submit a brief on one side or the other unless they care which way it comes out.” So the mere fact that academics file doesn’t carry much weight, and it shouldn’t, according to Scalia. “When I was an academic, I never once signed on to an amicus brief,” he added. “You can sign on whether you know the area or not. I never thought that was a proper role for the academic.” Proper or not, amicus briefs by academic scholars of every stripe are now a common feature in Supreme Court cases.

Despite the vote in
Heller
, the dissenters, based on their own exhaustive historical research, still were hopeful that a fair and thorough analysis of the amendment’s history would persuade possibly Kennedy or Thomas to join them instead of Scalia. Thomas, in particular, had a keen interest in history, thought one justice, and might be reachable. They were wrong.

The Supreme Court rarely writes on a clean slate. In most cases, earlier decisions offer guidance or a rule that may be applied to help
resolve the issue before the justices. The
Heller
gun case was that rare and, for the justices, exciting exception where the Court had said little of substance about the Second Amendment. The gun case, however, was not the only major case that term to thrust the justices into the role of amateur historians.

•  •  •

Before the
Heller
decision came down, the Court on June 12, 2008, issued its decision in the Guantánamo Bay detainee case:
Boumediene v. Bush
. The case brought by six Algerian detainees asked whether the Military Commissions Act of 2006 had stripped the federal courts of jurisdiction over federal habeas petitions filed by detainees challenging the legality of their detentions. If the act did divest the courts of jurisdiction, the case also asked whether that was a violation of the suspension clause of the Constitution. That clause, in Article I, Section 9, states that “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 Framers knew the writ was indispensable to individual liberty. They had experienced being jailed without charge. The writ, which has its foundation in English common law, compels the government to state a legitimate reason for detention. To answer the questions in
Boumediene
, the justices delved into the history and scope of the common law writ, examining sources such as the Habeas Corpus Act of 1679; the Magna Carta, the English Bill of Rights; and the text and drafting history of the Constitution’s suspension clause. And they looked to competing arguments in amicus briefs filed by legal historians.

In a 5–4 decision by Kennedy, the Court held that the Military Commissions Act did strip the federal courts of their habeas jurisdiction, and because procedures set out in a companion law—the Detainee Treatment Act—were not adequate substitutes for the habeas writ, the 2006 act violated the suspension clause. The justices split along ideological lines in their view of the writ’s history, whether the writ may be used
by aliens abroad, and how much deference should be paid to Congress’s decisions in this area.

“Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person,” wrote Kennedy for the Court’s liberal wing. “Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”

Scalia’s interpretation of the text and history of the suspension clause did not prevail. In a fiery dissent joined by Roberts, Thomas, and Alito, he argued that the writ did not apply to the detainees and that the Court had no business interfering with an ongoing military matter.

“What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy,” he charged. He ended his dissent with the memorable, and what some critics labeled hyperbolic, statement: “The Nation will live to regret what the Court has done today.”

Scalia was answered by Souter in a concurring opinion joined by Breyer and Ginsburg. Souter essentially said there was nothing radical about the decision because four years earlier in
Rasul v. Bush
, which involved detainees and their rights under the federal habeas corpus statute, not the constitutional writ, five justices had said that “[a]pplication of the habeas statute to persons detained at [Guantánamo] is consistent with the historical reach of the writ of habeas corpus.” He also noted, as did Kennedy in the majority opinion, that the Algerian detainees had been held for six years thus far without any review. “After six years of sustained executive detentions in Guantánamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation,” wrote Souter.

Boumediene
was the first time that the Court had found an act of Congress violated the suspension clause, and it was a rebuke not just to Congress but to the Bush administration as well.

Twelve days after
Boumediene
was issued, Kennedy led the same five-justice majority in
Kennedy v. Louisiana
(this Kennedy was no relation to the justice). The majority held that the Eighth Amendment’s prohibition against cruel and unusual punishment barred Louisiana from imposing the death penalty for the rape of a child where death did not result, and was not intended to result, in the child’s death.

The decision was the third in just six years to narrow the category of people eligible for the death penalty. Kennedy explained that the Court has said that capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ” That principle had been applied in 2002 in
Atkins v. Virginia
to bar the execution of mentally retarded persons, and in 2005 in
Roper v. Simmons
to prohibit capital punishment for murderers under age eighteen. In those two cases, both types of offenders, wrote Kennedy, had diminished personal responsibility for the crime. Particularly relevant to the question of imposing the death penalty for child rape, Kennedy indicated, were the Court’s prior decisions finding that the death penalty can be disproportionate to the crime itself, and thus unconstitutional, where death did not result or was not the intended result.

In analyzing whether a punishment is cruel and unusual under the Eighth Amendment, the Court also looks to “the evolving standards of decency that mark the progress of a maturing society.”

In this case, Kennedy said, the perpetrator’s crime “was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.”

However, he and justices Stevens, Souter, Breyer, and Ginsburg, agreed there was a national consensus against the death penalty for child
rapes. Only six states have enacted that penalty, noted Kennedy. No individual had been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963.

And in determining whether the death penalty is excessive, Kennedy wrote, “There is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but ‘in terms of moral depravity and of the injury to the person and to the public,’ they cannot be compared to murder in their ‘severity and irrevocability.’ ”

Alito, writing for Chief Justice Roberts and justices Scalia and Thomas, dissented, saying the decision was not supported by the original meaning of the Eighth Amendment or any precedent of the Court. There were no “objective indicia” of a national consensus in support of the Court’s position, he added, and the Court previously had held the Eighth Amendment is not “a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems.

“The worst child rapists exhibit the epitome of moral depravity,” he wrote, “and child rape inflicts grievous injury on victims and on society in general.”

Alito is not an originalist of the same commitment as Scalia. The latter justice railed against the majority’s approach to the Eighth Amendment in the 2005 decision striking down the death penalty for juveniles under age eighteen and noted that the Court had found the opposite just fifteen years earlier. Noting Alexander Hamilton’s vision of a judiciary “bound down by strict rules and precedents” (The Federalist No. 78, p. 465 (C. Rossiter ed. 1961)), Scalia wrote in 2005: “What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was
wrong
, but that the Constitution
has changed
.”