Two recent Supreme Court decisions

There have been two recent decisions by the Supreme Court of the United States (SCOTUS) that have garnered much attention and initiated much debate. The decision are the June 12th ruling in Boumediene v. Bush and the June 26th ruling in DC v. Heller. This post is an attempt to lay out the essential holdings from these two decisions and offer a few questions that arise from them. My goal with this post is to keep the analysis simple and straightforward.

Essentially, in Heller the SCOTUS held that the Second Amendment Right to Bear Arms is an individual right and exist apart from participation in militia. This is obviously a milestone decision that answers a question which has been heavily debated for quite some time.

Two important questions left unanswered by Heller:
1) What level of scrutiny will the court apply to restrictions?
2) Will the right to bear arms be applied to the states?

This is the most interesting question and one that very well may be addressed by the SCOTUS in the very near future. As most of you are probably aware, the Bill of Rights applies directly only to the federal government. Most of the rights in the Bill of Rights now apply to state and local governments through incorporation into the Due Process Clause of the Fourteenth Amendment. The Second Amendment Right to Bear Arms is one of five rights that have not been incorporated into the Due Process Clause of the Fourteenth Amendment. So as of right now, your state government could pass a law stating that no citizen can possess a gun for any reason, and it would not violate your Second Amendment Right to Bear Arms.

Since the Heller decision, no less than five lawsuits have been filed attempting to have this Second Amendment Right to Bear Arms incorporated into the Fourteenth Amendment Due Process Clause. It will be interesting to see what happens if any of these cases work there way up to the SCOTUS.

Essentially, in Boumediene, the SCOTUS held that 1) detainees are protected by the Suspension Clause (Article 1, Section 9, Clause 2 of the Constitution which 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.”) and 2) the Detainee Treatment Act review system does not provide an adequate substitute for habeas because it does not authorize the DC Circuit to order detainees to be released, does not allow detainees to argue that their detention exceeds the scope of the executive's detention authority, and does not allow presentation of new evidence.

Like Heller, Boumediene has been followed by much debate and perhaps more uncertainty.

Some of the important questions left unanswered by the Court are:
1) What impact it will have on the military commission trials just getting underway?
2) What constitutional right and protections should be given to detainees?

This question is currently being debated by both sides of the Hamdan prosecution. SCOTUSBLOG’s Lyle Denniston offers more detailed insight into this issue in his post, Debate over Boumediene’s meaning. In short, the government contends that the detainees are now protected by only a single constitutional right. The military lawyers argue that Boumediene was only “a narrow holding” that detainees have a constitutional right to pursue a habeas claim in District Court. They say that the Court’s decision turned only on Congress’s violation of that Suspension Clause. On the other hand, the defense attorneys claim at least nine constitutional rights:

1. A constitutional right to equal legal treatment, allegedly violated by any trial before a military commission (equal protection guarantee of the Fifth Amendment).
2. A constitutional right not to be forced to give evidence against himself, presumably based on alleged evidence obtained in interrogations (Fifth Amendment ban on self-incrimination).
3. A constitutional right to due process, based on alleged use of testimony obtained by coercion or torture and denial of access to documents about the conditions at Guantanamo (Due Process Clause of Fifth Amendment).
4. A constitutional right to call witnesses who may aid the defense, based on claims of too-limited access so far to “high-value detainees” at Guantanamo — including some key Al Qaeda leaders (Sixth Amendment right to compulsory process).
5. A constitutional right to the aid of a lawyer, allegedly frustrated by conditions at Guantanamo that inhibit lawyer-client relationships (Sixth Amendment).
6. A constitutional right to confront adverse witnesses, based on a claimed prosecution plan to offer “50 items of hearsay evidence” at trial (Sixth Amendment).
7. A constitutional right to a speedy and public trial, allegedly violated by the mode and scheduling of military commission trials (Sixth Amendment).
8. A constitutional right to be charged by a grand jury, allegedly violated by the charges leveled here only by Pentagon prosecutors (Fifth Amendment).
9. A constitutional right not to be accused of a crime for actions that were not criminal at the time, a test of whether a military commission has jurisdiction because the accusations are not violations of the law of war (Ex Post Factor Clause in Article II, limiting Congress’ authorize to create new crimes after the fact).

These two decisions will be debated ad infinitum and their full ramifications will not be known for years to come.