Foreign Law and Supreme Court

[In My Memory]

Here is something I dont understand: the Supreme Court's rationale behind two recent rulings, Roper v. Simmons (execution of minors unconstitutional) and Small v. United States (people convicted in any court are prevented from obtaining guns for one year).

 

In Roper, Supreme Court liberal justice Ginsburg was criticized for ruling in part on the basis of relying on international opinion:

The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court's determination that the penalty is disproportionate punishment for offendersa under 18. The United States is the only country in the world that continues to give official sanction to juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of the same rights within our own heritage of freedom.

 

Now, recently, the Small v. US is almost paradoxial. The case asks whether the statute forbidding a person to obtain guns after being "convicted in any court" includes convictions in foreign courts, after a Japanese man convicted for 5 years was charged for illegally obtaining a gun in the US. If you are like me, your intuitions probably tell you that whatever the decision is, it will be relevant in some way to the second amendment, that the liberals would vote to maintain the restiction to obtain guns, and the conservatives would vote against the restriction.

 

But, no, our intutions fail twofold:

1. You would think this would be a Second Amendment case, but for some reason the Second Amendment doesnt come up at all.

2. The "conservatives" on the court chose to observe the application the word "any court" to include foreign convictions and reject the defendants right to obtain a gun, and likewise the "liberals" believed foreign convictions do not apply to US law and grant the right for the defendent to obtain a gun.

 

Scalia and Thomas give the dissenting opinions:

... it is eminently practical to put foreign convictions to the same use as domestic ones; foreign convictions indicate dangerousness just as reliably as domestic convictions.

 

In light some of the Scathing critiques of Ginsburg for her comments on the Roper v Simmons ruling, I am no longer sure exactly how or when it is appropriate for the Supreme Court to defer to foreign laws.

 

And if a clear and meaningful rationale isnt defined, I would like to see a few pundits cross-apply their comments equally upon Scalia and Thomas, or perhaps withdraw their comments about Ginsburg altogether. Until then, I invite everyone to sit back, eat popcorn, and watch as TV pundits inenvitably fight to rationalize and trivialize the two cases for demonstrating a conflict in predicted behaviors of partisan judges.

[Mokele]

I am no longer sure exactly how or when it is appropriate for the Supreme Court to defer to foreign laws.

 

In the case of the first ruling, from what you quoted, it didn't sound like she was ruling based on foreign laws at all, but rather saying "hey, I decided this, and the fact that every country in the world agrees with me bolsters my arguement and means I'm more likely to be right." (let's not touch the logic of that, though).

 

I mean, the first phrase of the first sentence you quoted pretty much states that foreign law didn't determine the decision, but merely cemented the idea that it was the right decision.

 

Mokele

[darth tater]

I noted those cases also and was a little surprised, as was many others, that the conservatives were in favor if restricting one's right to purchase a gun on that basis, while the liberals supported the right to gun ownership.

 

It seems like a case of role reversals.

 

However, the basis of those two decisions were slightly different.

 

In the first case, the decision to consider what the law is in another country would seem to fly in the face of the Constitutional promise that it (the Constitution) would be the supreme law of the land, while in the other case, it was more a matter of applying the restriction to gun ownership on someone because of a conviction in a foreign court.

 

The rational for the restriction (on gun ownership) in the first place is that if one has been convicted of a felony, he has demonstrated that he is not a responsible citizen and as such can have some of his rights restricted. It would probably be the same as if one were certified as mentally unstable in Europe, then came to the US and tried to purchase a gun.

 

In my opinion, the two cases, while similar, do differ in this significent way.