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Thursday, Apr. 28, 2016

Ross Rambles: High court is attacked from both sides

Thursday, July 17, 2008

The U.S. Supreme Court has offended both liberals and conservatives with diverse opinions, including a decision to clarify second amendment rights and another to extend habeas corpus rights to Guantanamo detainees. These two decisions are less shocking than regarded by liberals in the first case and conservatives in the second case.

The wording of the second amendment has needed to be clarified by the court for more than two centuries. A decision needed to be made whether the second amendment to the Constitution only applied to the establishment of a militia or also applied to gun ownership by individual citizens. Either interpretation could be regarded as reasonable.

Also, the court needed to clarify what rights exist regarding possession of weapons that were not in existence when the second amendment was written, a clarification that remains far from complete after the narrowly focused Supreme Court decision that the city of Washington D.C. could not have a blanket prohibition of handgun possession by all citizens other than law enforcement officers. Court challenges against similar laws in San Francisco and Chicago are pending.

The court has not ruled out "reasonable" gun control by city governments. The court has specifically stated that it is reasonable to prohibit possession of guns by convicted felons or mentally ill people or possession of guns in public places. It is assumed that such measures as waiting periods for purchase, age requirements and restrictions against fully automatic weapons would be regarded as reasonable.

It was amusing to watch a panel discussion on Fox Network News when the token liberal was surprised to have people challenge the liberal assumption that without tight gun control in urban areas, gun related crimes would increase.

The consensus of conservatives on the panel was that if you outlaw guns, only outlaws would have guns. There may be some merit to that view since the cities with the strictest gun laws are those with the highest rates of gun crimes. This justifies a "which came first - the chicken or the egg" question since the tough gun laws are at least partly a response to the high rate of gun crimes rather than the cause of them.

In either case, gun control has been a dismal failure in preventing gun crimes in urban areas.

A better argument for limiting gun possession would be the number of accidental shootings, statistically a far greater danger in a household with a gun than the risk of assault by an intruder in a home without a gun. Still, absent a showing of gross negligence, most safety issues in the home should be a responsibility of adults in the household rather than the responsibility of government.

Many conservatives (with notable exceptions such as George Will) lament the potential consequences of requiring the government to present evidence in order to keep a foreign citizen incarcerated as a threat to our nation's security.

They argue that giving legal rights to what they refer to as "prisoners of war" is a bad precedent. But the Guantanamo detainees aren't prisoners of war. They are prisoners of an executive department foreign policy initiative given the catchy slogan of "War on Terror." Since terrorist acts will never be totally eliminated, we can expect the "War on Terror" to continue indefinitely. This could potentially give us an Orwellian situation of the U.S. government claiming perpetual authority to detain any foreign citizen without showing cause.

Critics of the Supreme Court decision recoil in horror at the thought that any federal judge, including those who may be "radicals," could set a suspected terrorist free based on the judge's perception that there is insufficient evidence to hold the suspect.

This is a similar situation that exists for U.S. citizens who are suspected of a crime. Any district court judge can decide to set free a suspect based on the judge's perception that there is insufficient evidence that the suspect committed a crime. This is called due process.

Some believe that rights granted to criminal suspects, including U.S. citizens, restrict the effectiveness of law enforcement officers.

However, history shows us that societies that do not impose strict rules on law enforcement and the judiciary are unsuccessful when judged on a number of criteria, including the effectiveness of law enforcement. When law enforcement does not have to provide a clear showing of reliable evidence, law enforcement becomes sloppy and complacent about getting the right person convicted of the right crime.

Why should we apply due process rules to foreigners? Besides avoiding complacency about the accuracy of evidence, we need to reverse the growing world perception of us as bullying hypocrites.