Justice Scalia or: How I Learned to Stop Ranting and Love the Assault Weapon


Justice Scalia or:

How I Learned to Stop Ranting and Love the Assault Weapon

Juliet L. Ensign-Neary

Twenty-seven words, and our interpretation of them, have dominated the national dialogue since the December 14, 2012, mass-murder of children at Sandy Hook Elementary School in Newton, Connecticut. (Adults were also murdered that day, but society owes its children a special duty of protection and ours is failing miserably.)

The NRA, the GOP and Fox News are advocating for even more guns. In the words of NRA executive vice-president, Wayne LaPierre, “The only thing that stops a bad guy with a gun is a good guy with a gun.” On the other extreme are those who want a complete ban on civilian-owned firearms. The most reasonable solution is probably somewhere in the middle—a limitation on ownership of some weapons, with strong licensing and registration components.

So, why is this “reasonable solution” not already in place? Why does Congress not pass a law? Well, it is just not that easy, folks.

The Second Amendment to the U.S. Constitution states:  ”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.” It is a plain, well-constructed sentence, seemingly devoid of ambiguity. However, in a society where debate can be had over the definition of “is,” nothing is really simple.

President Obama has vowed to make new gun control legislation a priority in his next term. However, any legislation passed by a Republican-controlled House of Representatives is unlikely to have any substantial impact on the manufacturing, sale, or ownership of firearms. In fact, gun control in the abstract is somewhat unpopular, even among Democrats and Independents. Assuming some gun control measure can be passed, it must then pass constitutional muster by the judiciary.

In a common law system, citizens are expected to know what the law is, and to conduct themselves accordingly. However, to reasonably expect citizens to understand and follow laws, there must be some predictability as to how those laws are interpreted by the courts. Facilitating this predictability is the doctrine of stare decisis, commonly referred to as precedent. Generally, lower courts are bound by the decisions of higher courts, with the U.S. Supreme Court being the final authority. The body of judicial decisions, particularly that of the U.S. Supreme Court, must guide the crafting and implementation of future legislation.

There are three decisions from the U.S. Supreme Court which shape our understanding and enjoyment of the Second Amendment:  (1) United States v. Miller; (2) McDonald v. Chicago; and (3) District of Columbia v. Heller. ___________

In United States v. Miller, 307 U.S. 174 (1939), the Court held the possession of firearms not necessary for a common defense, as part of a well regulated militia, is not protected by the Second Amendment. ———Miller specifically dealt with a weapon purported not to be in use by the military, at the time. ————

McDonald v. Chicago, 561 US 3025 (2010), extended Second Amendment protections to the states via the Fourteenth Amendment. ———- There is similar precedent regarding other civil rights, and this case is not particularly alarming, in and of itself.

However, it is Justice Antonin Scalia’s opinion two years prior to McDonald, in District of Columbia v. Heller, 554 U.S. 570 (2008), that created two enormous obstacles for advocates of gun control. ——- In Heller, the majority held the Second Amendment confers an individual right to possess a firearm for self-defense in the home. Specifically, the Court held requirements for trigger locks or the disassembly of lawful firearms, in an owner’s home, amounted to a total prohibition of that entire class of firearm. ——–

Historically, Justice Scalia has insisted the best interpretation of legislation should come only from the ordinary meaning of the words. However, in Heller, Scalia conjured the right to bear arms for personal self-defense out of nothing. His Honor posited that the first clause of the Second Amendment states a purpose for the second clause, but does not limit the second clause in scope. It is a highly unusual rationale for this most literal of judges. Surprisingly, Scalia also supported his ruling with references to the Second Amendment’s legislative history, a practice he typically vigorously eschews. (It is worth mentioning that Scalia contorted himself similarly when concurring with the Court’s 2010 holding in Citizen’s United v. Federal Election Commission.)

The U.S. Supreme Court will be the final authority on the constitutionality of any new gun control legislation. Under our common law doctrine of stare decisis, the Court has already settled three important tenets:  (1) individuals have the right to have keep and bear war-making weapons for self-defense, despite having no connection to a militia; (2) the use of trigger locks cannot be required; and (3) owners cannot be required to keep their weapons disassembled or even unloaded. In fairness to the Congress, what controls are left?

Sin’s Fatal Taint: the Felony Murder Rule and its Discontents

Sin’s Fatal Taint: the Felony Murder Rule and its Discontents

by Okla Elliott

We’ve all heard of outdated laws that remain on the books from earlier times — such as laws about how many pigs are allowed inside a house or those defining a pickle by means of a bounce test — many of which are good for a few laughs, given their perfect absurdity. There are untold numbers of such laws, and most of them are harmless enough, worthy of little more than a shrug of amazement at what people will make law. Unfortunately, not all outdated laws are so harmless. The felony murder rule dates back to sixteenth century Common Law in England, was adopted by America in the nineteenth century, and is all but entirely unknown, except of course to those who have been affected by it directly. The felony murder rule has at its heart a noble goal: to punish a murderer more severely if the murder is committed during a burglary, kidnapping, rape, or other such felonious offense. Why then did England repeal the rule entirely in 1957? Why would anyone want to see such a noble-spirited rule repealed? The reasons are numerous, but before we discuss what’s wrong with the rule, we should properly define it.

The felony murder rule, as defined by The Social Law Library of Massachusetts, states that “the defendant is guilty of first degree murder if the Commonwealth has proved beyond a reasonable doubt that the deceased was unlawfully killed during the defendant’s commission or attempted commission of a felony.” Sounds okay so far. Now let’s take a look at the definition of first-degree murder: “Murder committed with deliberate premeditation and malice is murder in the first degree.” First-degree murder is the most heinous of crimes, requiring the most vicious mens rea (the “mental state” of the perpetrator at the time of the crime, used as the means to determine the degree of legal culpability). It requires a truly cruel person to extensively plan and execute the malicious demise of another. Aside from child molestation or brutal rape, most of us would agree that there is no worse crime imaginable, and we would agree also that the worst punishment should be reserved for the perpetrators of such crimes. It is for this reason that first-degree murder has such a specific and unambiguous definition. And it is for this reason, coupled with the ambiguities inherent in the felony murder rule, that the rule must be repealed or, minimally, amended to allow for consideration of mens rea.

The most striking illustration of how these ambiguities can lead to a first degree murder charge which jars rational sensibilities and flies in the face of common sense is the 1997 case of Lisl Auman in Colorado. Auman and three friends drove from Denver to Buffalo Creek to retrieve some of her belongings from a lodge she had shared with an ex-boyfriend. They took her things, and the friends, in what can only be described as childishness, stole some of her ex’s belongings. So, now we have the requisite felony: burglary. Auman and friends drove back to Denver in separate cars, Auman ending up with Matthaeus Jaehnig, whom she had met that day for the first time. Before they reached Denver several cops, alerted of the break-in, tried to pull them over. Auman urged Jaehnig to pull over, but he refused. A chase ensued. Jaehnig, at one point in the chase, produced a gun and fired at the police. When Jaehnig stopped the car in front of Auman’s new apartment in Denver, Auman ran to the police and gave herself up, wanting nothing to do with Jaehnig, and attempted to warn them of what sort of gun he had. Jaehnig ran and, before the events were over, had killed a cop and then himself. Now we have a death connected with the commission of a felony.

Auman was safely handcuffed in the back of a police car when Jaehnig shot and killed a police officer. The felony occurred miles away in a different city. She was later convicted of first-degree murder by strength of the felony murder rule. According to my count, she was guilty of, at most, breaking-and-entering and burglary, crimes I feel she should pay for (though perhaps not too harshly considering how romantic break-ups and domestic squabbles tend to go). Yet she was found guilty of one of the worst, if not the worst, crime imaginable and was sentenced to life in prison as though she had committed murder “with deliberate premeditation and malice,” when in fact she committed no murder at all. (Fortunately, in 2005, her sentence was overturned after much lobbying by the likes of Johnny Depp and Hunter S Thompson, but not every victim of this outdated law is so lucky.)

Judge Rudolph Gerber suggests, in his book Cruel and Usual: Our Criminal Injustice System, that the origins of the felony murder rule may date back to medieval times when “sinful tainting” was still a popular notion. A person was tainted with the crime, even if she didn’t commit the crime herself. This was doubly true of Auman’s case, since Jaehnig was vaguely connected with a neo-Nazi group and the cop he shot was black. Jaehnig—not Auman—was vaguely connected with a neo-Nazi group, and Jaehnig—not Auman—shot a police officer, yet during her trial Auman was accused of being a white supremacist and was, as I’ve stated, convicted of first degree murder. In effect, her few hours of acquaintanceship with Jaehnig so tainted her that she must now serve life in prison without parole in order to atone. (The suggestion of racism was not ultimately necessary to convict her of first-degree murder. I mention it here only to illustrate the psychology of “sinful tainting” still in our legal practices.)

There are of course less morally clear cases, such as Janet Danahey’s in Greensboro, NC. Danahey, as a valentine prank on an ex-boyfriend, set fire to a futon on the balcony of his apartment. The fire grew beyond her expectations and set the entire building ablaze. In her panic she fled to her parents’ house in the nearby city of Weddington without calling the fire department. Four people died, several others were injured when they leapt from second- and third-story windows, and the property damages for both the building owner and tenants were tremendous. Here we have an emotionally electrified case in which four innocents, all young adults striving to achieve careers or college degrees, died in a painful and horribly frightening way. Some (though not all) of their family members were, rightly, so angered that they demanded the harshest punishment possible against Danahey, who had done them irreparable emotional and psychological damage. The community was—again, rightly—outraged.

In court, District Attorney Stuart Albright chose to use the felony murder rule, and Danahey was charged and convicted with four counts of first degree murder and one count of arson (the felony necessary to invoke the powers of the felony murder rule); all of which earning her life in prison with no chance of parole. Without the felony murder rule, Danahey could have been convicted of four counts of involuntary manslaughter and one count of arson which could have earned her anywhere between 30-120 years in prison with a chance for parole after 10-30 years, depending on the judge. It is therefore possible that Danahey would have remained imprisoned until her death.

“But what if she didn’t?” an angered voice from the back of the room yells. “She deserves the worst she can get for what she did.” And though I am sympathetic to this call of outrage, it strikes me that she doesn’t deserve the worst punishment possible. As mentioned earlier, the worst punishment should be reserved for the worst crime. Imagine now the case of a person who set the same fire in the same apartment building “with malice and deliberate premeditation” to kill those four people and harm the others, as opposed to a prank gone horribly awry. We would all make a moral distinction between the person who maliciously planned to kill people and the person who—stupidly and childishly, though not cruelly and bloodthirstily—played a prank that ended up killing people. The mens rea of these two persons would be radically different. The felony murder rule, however, with its brutal ambiguity, does not distinguish between these two cases. Both perpetrators would be convicted of four counts of first-degree murder and one count of arson. It doesn’t require a lawyer or professor of ethics to see that there is a clear moral difference, yet the only option in most states, when the felony murder rule is invoked, is a charge of first-degree murder.

Currently, almost every state has the felony murder rule still in place. Twelve of the thirty-eight states that have capital punishment allow for no charge other than first degree murder when the rule is invoked, and even in states such as Arizona, where a defendant can no longer be sentenced to death by strength of the rule, life sentences are the most common punishment doled out in felony murder cases.

I will now turn around an earlier question: Why wouldn’t anyone want the felony murder rule repealed? There are two groups of people who generally object to repealing the rule, DAs and the families of victims. The emotional anguish and urge for revenge on the latter’s part is understandable (though it’s that natural tendency to over-punish personal offenses that caused Hobbes, and the whole of the civilized world, to put faith in an objective, third-party judicial system). Many DAs, however, enjoy the existence of the felony murder rule, because it makes their jobs easier. In order to win a first-degree murder conviction (which, coincidentally, looks very good for their track records), they only have to prove intention to commit the felony and that a death occurred somehow connected—however loosely—with said felony, and the defendant is automatically found guilty of first-degree murder. I would like to think that the DAs who fight to keep the felony murder rule on the books are doing so out of a misguided sense of justice, though I have my doubts.

Our laws should adhere to a rational sense of moral rightness, whereby the degree of the crime and the mens rea of the perpetrator determine the degree of the punishment. The cases cited in this essay illustrate how the felony murder rule can lead to a conviction of first-degree murder when the defendant killed no one, and how it fails to make clear and obvious moral distinctions. The felony murder rule is therefore neither rational nor morally sound, and should for these reasons be repealed unequivocally. Our justice system should busy itself with discovering the guilt or innocence of a defendant and then—if she’s found guilty—punishing her for the crimes she’s committed, not the crimes of others; and her sentencing should be equal to her crime. If a DA wants to win a first-degree murder conviction, then she should be required to prove that the death was caused with “deliberate premeditation and malice,” which is the defining quality of first-degree murder. The felony murder rule is a throwback to an outdated and overly ambiguous law that has been repealed in its native country. If our justice system is meant to serve justice—as its name implies—it must rid itself of this fatally antiquated legacy.