Your (possible) Second Amendment right to “bear arms,” your Eighth Amendment right to be free from cruel and unusual punishment, your Sixth Amendment right to confront the witnesses against you … Interesting issues all, and all are embodied in unusual cases still awaiting the Supreme Court’s review this term.
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 only 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 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.