This is a fairly high degree of intentionality/premeditation in the homicide. And Gregg and his buddy, intelligently, stay in the car. Which is shortly identified, traced, and they're found. The two rat on one another, and even though in retrospect we're not 100% sure about who did what, Gregg gets sentenced to death in GA.
And he challenges the constitutionality of the death penalty itself, which makes it a nice pure case. And the majority, including Stevens, says explicitly that the death penalty is consitutional. It's a nice example of how courts argue in constitutional cases (this is why we like Atkins as well).
It's a nice pattern: start with the text. The phrase "capital crime" in 5A indicates textual support for the death penalty. 14A talks about deprivation of life, indicating (by negation) that you can take life, if you have due process; also double jeopardy for "life or limb." Usually you don't get as strong a textual argument as you do here; that's why opponents of the death penalty have to argue that the text is irrelevant (the language is evolving, society is evolving, etc.).
If the text is not definitive for some reason, we look at the Founders: can we get any insight into "cruel" or "unusual?" Capital punishment was widely used at the time of the drafting. And it wasn't only the Founders-- it was everybody else as well.
Next, we go to precedent. There are lots of federal death penalty cases, and they all either affirmatively or implicitly acknowledge the death penalty. There's no declaration that it's unconstitutional. Furman was a recent attempt to get the court to say it was unconstitutional: 2 agreed, 7 said it was constitutional, but 3 said that even though it was substantively constitutional, GA's procedures were defective. This was interpreted as a signal that the death penalty would fall just out of procedural inertia. But that did not happen: states just redesigned their procedures.
So in that sense, one can argue that Furman actually reaffirms the death penalty.
So what about public opinion and decency? Well, on the one hand, if you want public rule, go to the legislature. Law cases aren't public opinion polls-- we decide them on the basis of the law. Unfortunately, public opinion doesn't help nowadays: the polls are malleable, and since 9/11, over 60% support the death penalty. Even in WI, where there hasn't been a death penalty for 150 years.
So in the end, inevitably, you go to policy. The last recourse, but in a way also the only recourse. There's just got to be somebody deterred, but you can't prove it. Still, maybe the court is saying "well, WE would be deterred," so we know it must deter. And it gets rid of self-help by supplying retribution. And we want some kind of consistency behind our criminal sanctions: we want to punish this guy severely because his deeds were so bad-- if we don't, we lose credibility as a criminal justice system (because we punish comparatively lesser crimes quite harshly).
Note that prevention is relegated to a footnote. Of course, prevention is diluted somewhat by the alternative of life without parole. Of course you can still murder people in prison. Gregg, it turns out, was murdered himself (maybe in prison). An imprisoned person can escape, also (c.f. Coker). And life without parole isn't necessarily more humane than death-- if we abolish the death penalty, maybe the debate just shifts over there.
Federalism, too: we like the fact that GA can decide. And separation of powers: the legislature decided this, and the courts don't have a corner on moral wisdom.
Now let's go the other way. The text isn't explicit about the death penalty. It just says don't take liberty, property, or life without due process. So maybe it's not such a casual thing after all. And 8A prohibits excessive penalties (fines, literally, but we can generalize to punishments without much work).
And what is cruel, if not killing? And despite the fact that the death penalty was usual at the time of the drafting, it is quite rare nowadays, even among first degree intentional homicides. The unusual strategy goes both ways, though: most states have the death penalty, and there are 200 or so per year. And note the importance of "and" in "cruel and unusual." We read that as meaning "cruel or unusual."
Not much to say about the Founders. But we can go to precedent. Not much there, but we can look at Furman: even though it was on procedural grounds, the court frustrated the attempt to execute. In fact, every time a court finds a crime not severe enough to merit the death penalty, or a procedure not robust enough to qualify, that's a chip away at the death penalty, even if the court pays lip service to its legality.
Law review articles, also, are largely anti death penalty. And international laws (tricky area) can be instructive: the EU is strongly against it-- you can't even enter the EU without abolishing the death penalty (pressure, therefore on Russia and Turkey). Odd that Europe is so strongly against the death penalty, and we're so strongly in favor, despite how similar they are. Europe goes so far even as to refuse to extradite criminals to the US if the death penalty is an option. And you can look at various religious groups as well. Maybe they're more in tune with the moral issues at stake.
Also, opposition to the death penalty tracks with education and upper-class-ness. That seems undemocratic, but it seems like people in favor of the death penalty tend to be less informed. Additionally, your state might have a death penalty, but it's hard to hire an executioner: that is an honest and accurate reflection of the fact that this is something we're uneasy with. That's a sort of very well-informed real poll.
Federalism, too: this is a constitutional right-- we want it to mean the same thing everyplace. It's not up to GA.
The death penalty might even exacerbate some crimes: some people want to do the very worst thing they can. Others might want to eliminate witnesses. Or not know they could be put to death. And the death penalty undermines the uniquely American policy of rehabilitation. And what about retribution? It's kind of ironic that the crime that gets the death penalty (intentional homicide) merits intentional homicide as a penalty.
State-sponsored executions undermine respect for the state, in a way: it coarsens us, and why should the state be allowed to do things that we are not? And why should we need to live in terror of the state? That's contrary to the constitution's goals. A penalty that makes us afraid of our government should maybe be unconstitutional.
And what about false testimony or mistaken testimony or misinterpreted evidence?
Better still: why should we let anger (vengeance, retribution) guide our criminal justice system? That undermines the respect for human dignity that underlies the whole constitution. Individual dignity trumps all the states' requirements. (of course, if you say that, you're going to have trouble with abortion arguments... on the other hand not saying this gets you in the opposite problem).
All this appealing costs a ton of money as well (of course, the reason it costs so much is that the opponents to the death penalty make it as hard as possible to execute people). And incarceration costs too, of course.
Finally, look who the death penalty affects: wildly disproportionate racial application. Of course the same groups getting executed are also disproportionately victims of the folks getting executed.
Well, start with the text-- that makes things a lot easier to follow. Plus, that gives us precision and certainty in the law. Follow the plain meaning rule. Defer to the statute (separation of powers), if applicable.
Why do courts skip the text sometimes? Well, it's always somewhat ambiguous, and sometimes gives the wrong results. The text is stagnant-- the constitution is old-- and policy might be a better guide. So we can look for evolving standards, and look for ways the meaning might have changed.
Same thing with precedent-- we follow it because we want certainty. And we have a little humility before the court efforts that came before us. On the other side, there's just way too much precedent out there-- we can't possibly follow all of it. And it's ambiguous, contradictory, and full of dictum. And why do we want to be subject to the dead hand of the past?
You can also use legislative history and the Founders the same way. If Madison says something, Jefferson or Hamilton will say something else. It's also possible to manufacure legislative history (see Mortier and Scalia especially).
Agencies and amici, as well. They often have a lot to say, and are thoughtful. But who needs them: there are lots of briefs already, and who needs additional self-appointed experts? The fact that we're seeing such a profusion of amicus briefs indicates the incursion of public opinion into the court (or interest groups). Take those briefs to the legislature, not the court!
Likewise with foreign law-- citations are too selective. Lots of major countries have the death penalty, for example (China, Japan, India sort of). Why cite only Europe? And religious groups as well: the constitution doesn't recognize their moral authority, And here too the citation is selective: the court picks the pieces that agree with it.
All of these are essentially sterile and formalistic arguments. So we fall back on policy, but that has defects too. It is terribly uncertain, for one thing, and doesn't help us predict the results of any particular case. And who are these 9 old people, isolated from the rest of the world, to set policy? When courts openly cite policies, they tend to get into trouble.
So what you want to do is figure out what the policy views of the court might be, and then give the court that policy obliquely: use precedent, and text, and so forth, but don't nakedly lay it out there. Recall Breyer's article on term limits from Con Law I: he can't say politics, so he says it's stuff like upbringing. Of course, that's politics also, in a roundabout way.
He applied for a registration certificate for a handgun to keep at home, and was rejected under the DC ban. You can't have a gun without registration, and you can't register a handgun. And guns in the home have to be dismantled/disabled.
So he sues seeking an injuction against enforcing the disabling provision. He argues that the ban violates 2A insofar as it prohibits the use of functional firearms within the home. Dismissed at the district court: DC's lawyers win.
So, does 2A confer an individual right? 9/12 circuits say yes, and the others say no: it's for serving in a militia.
This is the only amendment with a preamble, incidentally. There has been long scholarly debate about its meaning, but essentially no SCOTUS rulings.
So Scalia looks at the text, history prior to the constitution, scholarly work, contemporaneous state constitutional provisions, and amici.
Text: the best reading is that the preamble does not affect the meaning of the operative part-- it simply states the occaision of it. This is in harmony with contemporaneous state laws on the subject. The operative clause: "the people" means all of the people; "arms" means now more or less what it meant then. So the operative clause strongly suggests that it creates an individual right.
And the history, too. Looking back at the Stuart kings of England, and how they would suppress local uprisings by disarming them. William and Mary had to sign a declaration of rights saying that they would not disarm the protestants. And George III used disarmament of opponents as a strategy. So the preamble just gives the reason for including this pre-existing right in the bill of rights.
There has been back-and-forth (see the 1980s) over whether this was an individual right or not. In the 1980s, it DoJ considered it a collective right. Then in the 1990s, it turned into an individual right not to be subject to unreasonable regulation.
Scalia says Miller didn't stand for much, but if it stands for anything it's that 2A rights are individual: else why send it back to the district court for further evaluation?
Note that DC is a federal entity, so the question is whether DC law is subject to 2A, and obviously it is: the amendments are binding on the federal government, regardless of any incorporation on the states. The standard of review isn't really articulated, but it seems to be more than rational basis. And they reserve the question of whether 2A is incorporated against the states.
So unless 2A is incorporated against the states, does this case have any real meaning? Does it apply to anyone beyond DC? At the very least, it has symbolic power. It might actually make gun rights groups less concerned about some issues, having at last gotten a definitive ruling on the subject.
So what about this standard of "the weapon of choice" for home defense? Wouldn't a sawed-off shotgun be just as nice as a handgun some of the time? And colonial citizen soldiers carried the best weapons they could get-- nowadays the equivalent would be full auto-- shouldn't that be allowed, if the militia has anything to do with it?
Of course, there's the argument that firearms deter crimes. Non gun-owners are kind of freeloading on the fear created by gun owners, in a sense.
There's also a modern trend at the state level to protect gun rights-- SCOTUS should maybe take note of that.
To be fair, there is a lot of gun violence in the US, and a lot of the world looks at us like we're crazy. Accidental gun deaths, suicide by gun, criminal gun violence: we're leaders in those areas. Some people think it might be worth taking guns out of the hands of citizens, except in controlled circumstances.
On the other hand, we've found a lot of constitutional rights with much less support than this: there's text on our side, there's history. The dissent can't really counter those facts. But still, if we suddenly create this individual right, individual rights have a tendency to grow in the supreme court, and we don't know what mischief might arise.
Two questions: should 2A be incorporated, and then should the court of appeals be the one to decide that, even though there's old SCOTUS precedent saying that it didn't apply to the states?
No, and no, says Easterbrook. First off, we have to defer to SCOTUS, even if the old precedent looks shaky, given Heller. That's what Rodriguez v. Shearson stands for: SCOTUS gets to overrule its own precedent. And if 7th cir decides this now, it creates a split between circuits, and forces SCOTUS' hand. For institutional reasons we should hang back at this point-- they may want this issue to percolate a little more.
Now, on the merits, for federalism reasons, we want to leave this to the states; that will maximize the happiness of the citizens, because different areas will have different relationships with gun ownership.
It's not a coincidence that 1A was first. Maybe the fact that 2A is second means that these rights are fundamental, also, and that therefore 2A should be incorporated. 43 states have their own analogous amendments.
They've petitioned for cert; it will be interesting to see if they do or not. Will they feel that they've had enough time to be able to decide whether Chicago's ban is constitutional? Will they decide that deference to the states is appropriate? An unfinished story.
So it is with due process. Once in a while (c.f. Powers) the court will openly acknowledge how non-textual this is: we could call it equal protection or due process-- it doesn't matter.
So what is a fundamental right? The constitution is silent, so it's up to the court. A cautious court doesn't believe in fundamental rights except those mentioned in the bill of rights, etc. A bolder court will declare that there are rights so important that they're fundamental even though they're not mentioned.
The Warren court was good at this-- it would find new fundamental rights around every year or two. Some examples: Race, religion, alienage, gender (ususally). Others just don't: age, sexual orientation (maybe...), wealth. Anyway, it's hard to say why some of these categories get picked, and others don't.
Due process is even more arbitrary-seeming. Here's what works: the right to bodily integrity (Skinner: OK tries to sterilize certain prisoners), the right to vote, the right to travel (migrate; that's Schapiro), the right to education. Every so often the court hints that lack of wealth may be a fundamental category (i.e., the state might have to allow a prisoner to make an appeal). In Eastern, maybe the court found a fundamental right to property. And privacy seems maybe to be a fundamental right, which leads to the fundamental right of a woman to choose.
All this right-finding raises separation of powers issues: what do we need legislatures for, if the court is going to do all this? So there was a backlash-- the court got less right-findy, but it didn't actually repeal any fundamental rights.
So what's not fundamental? There's no fundamental right to employment. Or to welfare. Or to education (yes, this contradicts what we said above). No fundamental right to die. Or to decent housing.
This case is lesser known than maybe it should be. It's significant that the court doesn't find a fundamental right to any minimum standard of living.
Not a lot of debate or explanation in the opinion. Lots of other nations do constitutionalize some standard of living (Europe is big on this).
So the issue here is the manner of eviction of tenants. It's generally a highly expedited procedure.
The court talks about some minor procedural aspects, but the bigger issue is whether tenants have any protection under the constitution about a minimum standard of housing.
A few issues. The major issue (not ours) is separation of powers: should courts even be making this decision? If not, then who? Executive agencies, the market? Federalism also: should this decision be centralized? And (regardless of who sets the standard), what should the standard be? Square feet? Utilities? And if a court sets the standard, should it be called an implied warranty of habitability? We've got those in all jurisdictions, but they are common law (i.e., they can be overruled by the legislature if needed). And finally, how should the standard be enforced? Rent abatement, tort, criminal, public housing?