Last month, the Supreme Court was an equal-opportunity disappointer, handing down one decision that enraged conservatives and one that outraged liberals. Permit me to make myself even more unpopular than usual (no mean feat) by suggesting that both decisions were correct.
The first ruling came in Boumediene v. Bush, in which the Court upheld the right of detainees at Guantanamo to file habeas corpus petitions. Any competent lawyer could have predicted the result; the most worrisome feature of the ruling (to me) was that it was a 5-4 decision. The theatrics from predictable sources may have obscured what the ruling did and didn’t do. It didn’t order Guantanamo closed. It didn’t require that the detainees be freed. It didn’t even require that they be given full trials.
The right of habeas corpus guarantees prisoners only the most bare-bones fundamental fairness; it allows people who have been imprisoned to challenge government’s right to hold them. It allows them to demonstrate that they are being held in error—that they aren’t who the government says they are, or that they were not involved in the actions for which they are being held. Allowing someone to say, “hey—you’ve got the wrong guy” hardly endangers America.
Nor will the ruling unleash the routinely predicted “floods of litigation.” Every one of the 2.2 million prisoners currently held in the U.S. criminal justice system can file a habeas petition. Letting 335 Guantanamo detainees do so as well is hardly going to overwhelm the system.
In District of Columbia v. Heller, the Court struck down the nation’s most restrictive gun law, and finally settled the question whether the Second Amendment protects a personal or collective right—that is, whether the Amendment’s authors were referring only to militias, or whether they were also protecting an individual right to gun ownership. The screaming this time came from liberals, but it was no less over-the-top.
First of all, the Court did not invalidate all efforts to regulate firearms. The ruling simply said that a personal right exists, and government therefore has the burden of justifying regulations that propose to restrict or infringe that right, just as we insist that government must justify other efforts at regulation that may restrict personal liberty. The Court said the ordinance in question—which required, among other things, that a handgun kept in the home be disassembled—went too far.
Both sides have substantially inflated the likely effect of Heller. Purists who believe the Second Amendment protects their right to build small nuclear devices in their back yards are gleefully planning challenges to far more reasonable regulations that are quite likely to pass constitutional muster. For their part, doom-and-gloom gun control advocates have conveniently overlooked the fact that a majority of state constitutions explicitly protect a personal right to gun ownership. (While states cannot restrict rights guaranteed by the U.S. Constitution, they are free to offer their citizens more extensive protections.)
You can quibble with the details, but the Court got these right.