• WINTER 2008
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supreme court update

Your Second Amendment right to bear arms, your Eighth Amendment right to be free from cruel and unusual punishment, and your Sixth Amendment right to confront the witnesses against you, are all interesting issues; and all are embodied in unusual cases still awaiting the 2007–2008 Supreme Court's review.

The Court hasn't heard a pure Second Amendment case since 1939 when the justices unanimously ruled that the Constitution did not bar Congress from requiring the registration of sawed-off shotguns. Nearly 70 years later, the District of Columbia's counsel has asserted at oral argument in the U.S. Court of Appeals that it would be constitutional for the District to ban all firearms outright. The question actually before the Supreme Court is narrower, however: whether the Second Amendment forbids the District of Columbia from banning the private possession of handguns while still allowing possession of rifles and shotguns.

While proponents both for and against a constitutional right to own handguns often contend that the language of the Second Amendment "plainly" supports their opposing interpretations, it is in fact one of the more puzzling and awkward sentences in the Bill of Rights: "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." So is the reference to a well-regulated militia meant to limit this constitutional right to members of official state militias or the modern National Guard? Or was that prefatory militia clause not a limitation at all but simply the identification of a civic purpose behind the Amendment's protection of the right of individuals—"the people"—to keep firearms for their own self-defense or other private use?

The case, District of Columbia v. Heller, Docket No. 07-290, had not been scheduled for oral arguments as of this writing, but it is likely to be heard in March and decided in June—in plenty of time to play a role in the 2008 presidential campaign.

Meanwhile, the Eighth Amendment case, Baze v. Rees, Docket No. 07-5439, was argued January 7 but has not yet been decided. A civil rights challenge, this litigation is providing the justices and interested members of the public with a sometimes astonishing behind-the-scenes look at the current state of the executioner’s art.

The attorneys for the two Kentucky death-row inmates in this case contend that the Eighth Amendment bans the lethal injection methods being practiced in Kentucky because those methods pose a greater risk of causing pain and suffering than other possible methods of killing prisoners with lethal injections. Kentucky’s executioners currently use three drugs to kill their subjects: first, a short-acting barbiturate (thiopental) designed to render the prisoner unconscious; then a neuromuscular blocking agent or paralytic (pancuronium bromide); and lastly, a third drug designed to cause cardiac arrest (potassium chloride). The prisoners in this case are concerned that any of several possible errors in the administration of the first barbiturate could render their execution extremely painful, although (because of the paralyzing effect of the second drug) they wouldn’t be able to express that pain. For its part, the state contends that the Constitution does not require it to eliminate all "unnecessary risk" of pain and suffering, but only any "substantial risk" of the wanton infliction of pain.

Finally, in Giles v. California, Docket No. 07-6053, the Court has agreed to decide when a criminal defendant forfeits his or her Sixth Amendment right to confront and cross-examine the witnesses against him or her. Is it upon the state’s showing that the defendant has caused the unavailability of a witness, as some courts have held? Or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?

The twist in this case is that the reason Dwayne Giles was unable to confront the witness at his trial is that he killed her. Giles, who was convicted of murdering his former girlfriend, is appealing his conviction on the grounds that the jury shouldn’t have been allowed to hear the incriminating statements she made to a police officer before he killed her. According to Giles, when he shot Brenda Avie six times, it wasn’t for the specific purpose of preventing her from testifying at some future trial.

This case has not yet been scheduled for argument, but the petitioner's brief is due February 20 and it probably will be heard in April.


Legislative Update

With the election season upon us, you can be forgiven for forgetting that the federal government is still creating new bills and enacting new laws. Much of the current legislative initiatives before Congress and President Bush reflect recent “headline” issues, including health care, early education, and concerns over the safety of toys and children’s products.

On the health-care front, the much-publicized battle between President Bush and congressional Democrats over the State Children’s Health Insurance Programs (SCHIP) came to an end. SCHIP is the national program that provides health insurance to families who make too much money to qualify for Medicaid, but yet cannot afford private health insurance plans. In December, the battle came to a quiet conclusion when President Bush signed into law the second attempt at an SCHIP reauthorization act passed by Congress. This act extends SCHIP through 2009 and required a great deal of bipartisan compromise. Although the reauthorization requires no new or increased taxes, it also does not increase the number of eligible families as Democrats had originally hoped. Nevertheless, this important piece of legislation will provide many families with the peace of mind of knowing that their most basic health care needs can be insured.

The year also saw the reauthorization of another important government program for low-income children: Head Start. In early December, President Bush signed the Head Start reauthorization bill, citing research showing that Head Start programs help children from low-income families gain important early reading and math skills and arrive at school ready to learn. This authorization encourages collaboration between program agencies, schools, and other youth-oriented programs. In addition, Head Start programs will now be expected to focus on research-based curricula and meet certain performance standards.

The last major area of focus of Congress and the White House focused on the concerns raised by the massive recalls of children’s toys and lead paint that dominated the media throughout the past year. In response, Congress passed a series of bills targeted at improving child safety by “better ensuring that the products that children use are safe and reliable.” These sweeping reforms cover everything from gasoline container caps to pools and spas. The force of this legislation is provided by two acts targeted at reforming how the recall system and product-safety laws work. The new acts require direct notification to consumers of safety recalls for certain products, including cribs and high chairs, and they increase the civil penalties for violating the Consumer Product Safety Act. These initiatives culminated in December when the House passed a bill banning the use of lead paint in children’s products and creating a new system for testing toys.

Even though much of the media focus this spring will be on the upcoming presidential election, there are still many important initiatives moving through the federal government that can affect how we live our daily lives.


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Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is disseminated three times yearly (fall, winter, spring) by the American Bar Association Standing Committee on Public Education.

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