Should prosecutors be liable for prosecutorial misconduct?

That is the gist of a case the Supreme Court decided to hear today. I think the answer is, it depends. If it is egregious misconduct, like using jailhouse snitches and not disclosing any rewards given, then I think the answer is yes. Same with withholding Brady evidence that is material to the case (think, smoking gun).

Court will hear wrongful conviction case – Yahoo! News
The U.S. Supreme Court agreed Monday to decide whether a man who served 24 years in prison before his murder conviction was overturned can sue two former prosecutors for allegedly violating his civil rights.

Thomas Goldstein, now 59, was convicted of a 1979 murder on the strength of a jailhouse informant’s testimony that Goldstein had confessed to the crime. The informant testified he received no benefit in return, but evidence that came to light later suggested he had struck a deal to get a lighter sentence.

Two federal judges and a federal appeals panel eventually ruled that Goldstein was wrongly convicted, and he was freed in 2004.

Individual prosecutors typically may not be sued for their decisions, but Goldstein sued former District Attorney John K. Van de Kamp and his former chief deputy, Curt Livesay, claiming that as managers they had a policy of relying on jailhouse informants even though it sometimes led to false evidence.

If Goldstein ultimately is successfully in suing, the case could lead to higher-ups in other prosecutors’ offices being held liable for the conduct of their prosecutors in the courtroom, Van de Kamp said.

That isn’t such a bad thing if it helps clean up prosecutorial misconduct that happens today but has no real outlet for accountability.

Quote: “Every book in literature, science and art, borrows …”

“[I]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”

— Justice William Story in Emerson v. Davies, 3 Story 768, 8 F.Cas. 615, C.C.Mass. 1845 (1845).

It is a great quote, although it has a lot of commas. Strunk and White were probably horrified if they ever read this quote.

“A well regulated Militia, being necessary to the security of a free State…”

I’ve been fairly geeked about the challenge to the Washington D.C. gun control ordinance currently in front of the Supreme Court. This might be the first time the Court directly addresses whether the Second Amendment provides for an individual or collective right to bear arms. I believe it is a collective right.

Historic case may decide U.S. gun rights – Christian Science Monitor (via Y! News)

Some legal scholars believe the amendment protects a right to keep and bear only those firearms that are necessary for ongoing service in a state militia. Other equally distinguished scholars hold the view that the amendment guarantees individual Americans the right to possess and use firearms, even when the guns are not related to service in a militia.The US Supreme Court is set to hear oral arguments Tuesday in a potential landmark case that could settle the question once and for all.

The high court last addressed the issue almost 70 years ago in a case called US v. Miller. But that decision left the debate unresolved.

The Second Amendment says: “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.”

First, the text of the amendment can be read literally to support an individual right to keep and bear arms but it also can be read to provide no such right. Because there isn’t a clear answer in the text I think we need to look elsewhere, such as history, for an answer.

The early United States had a serious distrust of a standing army and only had one official battery, stationed at West Point, after the Revolutionary War ended. Instead of having a large, professional, standing army, the United States relied on the state militias. In 1791, the year the Bill of Rights passed, the United States reorganized and expanded the standing army. The Second Amendment was included in the Bill of Rights to provide assurances to the states that the standing army would not replace the militias (remember, the founders distrusted standing armies). The militias have subsequently become the National Guard.

Second, the Bill of Rights was not initially considered applicable against the states as the Supreme Court held in Barron v. Baltimore. This means that a state government had a right to limit arms within its own territories. It wasn’t until the 14th and 15th Amendments were passed after the Civil War that courts started applying parts of the first ten amendments (Bill of Rights) to the states (and even that took a long while). For the Second Amendment to apply to the states, the Supreme Court will need to find that the Second Amendment was incorporated by the 14th and 15th Amendments.

I’ve seen some supporters of the argument for an individual right to bear arms use a few choice quotes from some of the founding fathers, such as Patrick Henry but I don’t think they are the only source of the founders’ intent and are not dispositive. When I see the quotes, context has not been provided and several allude to the responsibility of all men to join their local militias (conscription?).

As such, I don’t think the Second Amendment provides an individual right to keep and bear arms. Furthermore, it is up to states to decide through their police powers when and what type of guns and weapons can be possessed and used within its borders. Do I think people should be allowed to own guns, yes. But there isn’t a Constitutional right.

That said, I don’t think the Federal government has the power to restrict your possession of guns. However, it can and does use its commerce power to limit the transport of guns across interstate lines and when the sale of a gun will affect interstate commerce.

A wonderful quote about our Constitution

“(The Constitution) is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

Justice Oliver Wendell Holmes, dissenting in Lochner v. New York, 198 U.S. 45, 76 (1905)