Eugene Robinson precisely summarizes my ambivalence towards the Supreme Court’s ruling on handgun rights. Here’s how his Washington Post op-ed concludes:

I believe the Constitution is a living document that has to be seen in light of the times. I believe the Supreme Court, in Roe v. Wade, was right to infer an implicit right to privacy, even though no such thing is spelled out. I think the idea that the Founders’ “original intent” should govern every interpretation of the Constitution is loony — as if men who wrote with quill pens could somehow devise a blueprint for regulating the Internet.

But I also believe that if the Constitution says yes, you can’t just blithely pretend it says no. Yesterday’s decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment’s guarantee. If not, then the way to fix the Constitution is to amend it — not ignore it.

If I were writing the US Constitution today, I would not include a blanket individual right to own any gun of one’s own choosing. I might even want to ban guns, for the simple reason that many fewer people would die violent deaths. But I’m not writing the Constitution today, and what the Court has now said seems a fair and reasonable interpretation of the Constitution, even one that might plausibly be read as an advance on civil liberties.

Technorati Tags: law, Robinson, Supreme Court

The Court’s decision today — in a narrow 5-4 ruling — strongly signals that America’s understanding of “cruel and unusual” punishment evolves over time, and says the role of the Justices is to carefully judge those moral standards and apply them fairly. The death penalty is now prohibited in cases of child rape.

The Justices find a national consensus against imposition of the death penalty in child rape cases (only 5 states allow death for this crime, and the punishment is extremely rarely carried out). Not to be overlooked are their astute observations that states appling the death penalty for child rape remove the incentive for rapists not to murder their victim; they discourage reporting of child rape, especially when family members are involved; and they also present a “special risk of wrongful execution” because such cases usually rely on testimony from children (who have a documented risk of unreliable, induced, and imagined testimony).

On the other hand, a dissenting opinion filed by Alito relies on unusually specious reasoning, holding that there is no national consensus against the imposition of the death penalty. Why? Because state legislatures have been dissuaded from enacting their true “values” because of past supposedly activist rulings of the Supreme Court. Really. Legislators feared, they say, that the Court created “a bright line between murder and all rapes—regardless of the degree of brutality of the rape or theeffect upon the victim.” The problem is the Court said no such thing (the plain language of the relevant ruling limited its scope only to the rape of adult females, not children). Most bewilderingly, they acknowledge that legislators’ fears are legitimate because one former Justice (Powell) misunderstood the law to apply to child rape. Therefore, because one judge said the ruling might mean something it plainly does not, legislators were “reasonable” in fearing an activist Court.

I don’t have the specialized knowledge of legal experts. But I don’t hesitate to say that a bare majority of the Court is willing to accept their role as arbiters of America’s evolving standards of civility and human decency. For their willingness to do their jobs, we can all be grateful. Justice requires widom informed by an ability to balance many competing values and perspectives, and protect the legal rights of those persons some segments of society are most likely to treat inhumanely. Less hopeful is the fact that there are four Justices on the Court who neglect the evolving nature of our collective national conscience, making them forces of resistance and regression.

Their allies, pundits such as Ross Routhat, say today: “I don’t think that rape, even the rape of a child, merits the death penalty…” but nevertheless these opinionists are too weak in their convictions to say that America should prohibit inhumane treatment of prisoners. Our Court lies precariously divided between friends and enemies of the Good as it is revealed by the clear development of a consensus in our collective moral consciousness.

Technorati Tags: crime, death penalty, Douthat, judicial activism, Supreme Court