Two thunderous rulings by narrow majorities on the Supreme Court present an odd juxtaposition.
Today, the court ruled 5-4 that Washington D.C.'s essentially total ban on handguns and highly restrictive conditions on the storage of long guns was unconstitutional. The second amendment has always set a high standard for lexical ambiguity with its liberal use of punctuation . . . thus the running debate about the meaning of the prefratory clause dealing with militias. The majority ruled as follows . . .
Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.” In so declaring, the majority found that a gun-control law in the nation’s capital went too far by making it nearly impossible to own a handgun.
But the court held that the individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Justice Scalia wrote.
The ruling does not mean, for instance, that laws against carrying concealed weapons are to be swept aside. Furthermore, Justice Scalia wrote, “The court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
And this . . .Concluding his opinion, Justice Scalia wrote, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.”
“That is perhaps debatable,” Justice Scalia wrote, “but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.”
Whatever you believe about gun ownership, this is a "landmark ruling." The good news is that there is a strong, constitutional-based argument being offered in defense of the majority opinion. For the record, the minority opinion, written with equal vigor by Justice Stevens, excoriates the majority for its liberal and reaching interpretation of the second amendment.
The case of the Exxon Valdez is another matter entirely. Conservatives love to lambaste judges they dislike as being "activist" and applaud their favorites as strict constructionists. Getting past the jargon, the idea here is that it's not the job of the Supremes to make things up. It's their job to interpret and judge whether or not the matter before them does damage to the constitution, and presumably along with that, long-held court precedents that related to that same question.
In the case of Exxon, another narrow majority went completely off the reservation and plucked a ruling out of thin air.Justice David H. Souter, writing for the majority in the 5-to-3 decision, said a ratio between the two sorts of damages of no more than one-to-one was generally appropriate, at least in maritime cases. Since Exxon has paid about $507 million to compensate more than 32,000 Alaska Natives, landowners and commercial fishermen for the damage caused by the spill, it should have to pay no more than that amount in punitive damages, Justice Souter said.
And the constitutional basis for this?
The question remaining after Wednesday’s decision is whether the one-to-one ratio will apply outside of maritime cases. In the Exxon case, the Supreme Court was acting as a state appellate court typically might, assessing the reasonableness of the punitive award under the common law rather than asking whether it violated constitutional due process protections.
The one-to-one ratio was not grounded in statutory law or other maritime cases. Justice Souter relied instead on studies showing that in hundreds of cases, the median punitive damage award was about 65 percent of the compensatory award.
“We consider that a 1:1 ratio, which is above the median award, is a fair upper limit in maritime cases,” Justice Souter wrote.
If I were a card carrying member of the Federalist Society and this ruling wen the other way based on the same logic, I'd be looking for my Second Amendment guaranteed firearm. So absent any constitutional or statutory basis for a ruling, we're going with statistics? How about the mode? How about the mean? What's the second standard deviation? What about the facts?
What's not at issue here is that the Valdez made an absolute mess of things and the damage is by no means fully remediated. The fact that Exxon has written checks to the tune of $3.5 billion seems besides the point. If I run a hose into your basement and flood it, you'd probably like me to pay what it takes to return your home to the way it was. Whether or not I'm tired of writing checks is irrelevant.
At stake here is that Exxon doesn't want to pay a penalty. The probably don't want to pay anything, but that's not what's at stake. This one should never have been heard. By any "strict constructionist" logic, this is an over-reach of massive proportions.
Tags: SecondAmmendment, Antonin Scalia, Supreme Court, David Souter, Exxon Valdez
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