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Today is the last day of the Supreme Court's term. After yesterday's major death penalty decision, this morning will likely to bring an even more dramatic ruling on the Constitutional meaning of the right to bear arms. NPR's Nina Totenberg reports.
NINA TOTENBERG: The second amendment to the Constitution reads a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. For most of the last century, the courts have interpreted that language to mean that the right to bear arms is a collective right associated with military service, not a personal right.
But last year a federal appeals court here in Washington invalidated the D.C. handgun ban saying that it violated the individual right to bear arms guaranteed in the Constitution. The District of Columbia appealed and at oral argument in March, a majority of the justices seemed to indicate that they too believe the second amendment guarantees a personal right.
The tougher question seemed to be how much leeway to give federal, state and local governments to regulate that right. For example, would a ban on assault weapons in the name of public safety be okay? How about a ban on guns in schools or on public transportation.
Gun owners and law enforcement are anxiously awaiting today's ruling. This final week of the Supreme Court term, as usual, has been chock full of major decisions. Yesterday the court invalidated the death penalty for child rapists, declaring that execution is a disproportionate punishment for any crime against an individual where the victim is not killed.
The justices also drastically reduced the punitive damages that had been awarded by a jury in the Exxon Valdez oil spill nearly 20 years ago. And the court ruled that a murdered victim's prior statements to police cannot generally be used at the accused murderer's trial because the accused has no way to cross-examine statements by a person who's not in court.
The Supreme Court five-to-four death penalty decision involved the rape of an eight-year-old girl by her stepfather. He was convicted and sentenced to death in Louisiana. Writing for the court majority, Justice Anthony Kennedy said that with only six states allowing the death penalty for non-homicide child rape, only two people on death row for the crime and 44 years since anyone has been executed in this country for the crime, there's a national consensus against the practice.
In addition to consensus, Kennedy said, there's a question of what's disproportionately cruel punishment under evolving standards of decency. The death penalty, he said, must be reserved for the most heinous homicides because of its finality and the possibility of error that cannot be corrected. Though there are non-homicide crimes against the state, like treason and espionage, where the death penalty is justified, he said, crimes against individuals must involve a death if execution is to be the punishment.
Kennedy's opinion acknowledged the difficulty the court has had in trying to ensure that there is some regularity in a position of the death penalty. It's difficult enough to try to ensure that execution is not imposed in an irrational or arbitrary way for homicide, he said. Child rape, with the numbers far greater and the testimony of child witnesses more unreliable and subject to influence, would present too great a chance of wrongful executions.
Washington and Lee Law Professor David Bruck is a capital defense litigator.
Professor DAVID BRUCK (Law, Washington and Lee, Capital Defense Litigator): The tone of the court is quite skeptical of the use of the death penalty and expresses frank concern and awareness of the difficulties in administering it at all.
TOTENBERG: Said Justice Kennedy, when the law punishes by death it risks its own sudden descent into brutality, transgressing the Constitutional commitment to decency and restraint. Writing for the four dissenters, Justice Samuel Alito said such issues are for legislatures, not courts, to decide.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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