MICHEL MARTIN, host:
I'm Michel Martin and this is Tell Me More from NPR News. Just ahead, a memorial to the thousands of gays persecuted by the Nazis is dedicated in Berlin. And the original "Dreamgirl," Sheryl Lee Ralph, talks about her efforts to get women to face the facts around HIV/AIDS.
But first, this week the Supreme Court is issuing decisions in two of the most emotional cases it took on this term. Yesterday, the court decided that states cannot put someone to death for raping a child when no death occurs. Today the court is expected to decide whether the District of Columbia can keep its strict ban on handguns in place. The decision could result in the first reinterpretation of the right to keep and bear arms in nearly 70 years.
Joining us now to talk about both cases are Mary Cheh; she is a law professor at George Washington University and a councilwoman in the District; and Jonathan Franklin, who heads the Supreme Court and Appellate practice in the Washington, D.C. office of Fulbright and Jaworski. Welcome to you both. Thank you for coming.
Professor MARY CHEH (Law, George Washington University; Member, DC Council): Thank you for having me.
Mr. JONATHAN FRANKLIN (Attorney, Fulbright and Jaworski): Thank you for having me, as well.
MARTIN: Jonathan, I'm going to start with you. The facts of the case that came before the court were horrific, which the court took pains to acknowledge. A man raped his eight-year-old stepdaughter and hurt her so badly she had to have surgery. Why did the court decide the punishment was not, as Anthony Kennedy put it, a proportional punishment?
Mr. FRANKLIN: Well, there were several reasons that the court issued that ruling, but the court most importantly decided that the punishment of death should be reserved for cases - at least those crimes involving individuals that result in death. And in that sense the court drew a categorical line in this case.
MARTIN: In fact, they seem to go beyond the individual question to rule out the death penalty for any individual act that doesn't involve death. Why do you think they were so keen to do that?
Mr. FRANKLIN: Well, I think the court expressed - and here we're talking about a majority of the court, a very slim majority - expressed that really a deep skepticism about the death penalty in this opinion and decided that in order to expand the death penalty, it was not willing to do that in cases where death did not result because of some of the arbitrary problems that the death penalty has faced over the years.
In essence, I think you could consider this a case of the court saying, an eye for an eye. If the crime does not result in death, the punishment should not be death, at least in cases involving individual crimes.
MARTIN: Mary Cheh, councilwoman, the court cited the fact that only six states allow the execution of child rapists as a sign that there is a moral consensus, if you will, developing against the death penalty, but I wanted to ask you, as both a constitutional scholar and as a local official, how does that reasoning strike you?
Professor CHEH: Well, you have to step back and realize that the Eighth Amendment prohibition against cruel and unusual punishment is determined by what state it is - evolving standards of decency, and so there's often this debate about what are the evolving standards that society is accepting?
But in this case it was pretty tricky, and it raises a fairly interesting point. Yes, there were only six states, but those six states have adopted the death penalty for child rape since 1995. And one of the things you look at in evolving standards is whether there's a trend in one direction or the other, and the dissenters pointed out that if there had not been a ruling by the court earlier prohibiting death penalty for rape of adult women, which some states might have thought put it off the table entirely, maybe we would have had something more than that. And so where is the movement really?
And if you'll indulge me one minute, I want to make an observation. Justice Kennedy, writing for the majority, had the following thing to say, which I think is really the key to understanding his opinion. He said, when the law punishes by death it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.
The interesting thing about this case is it seems as though in a way, Justice Kennedy was stopping what might be an evolving trend because he feared that this would put us into the descent into brutality.
MARTIN: It sounds like you're saying he's intervening in the course of public opinion or - is that an appropriate thing for a justice to...
Professor CHEH: Well, that's highly debatable whether it is or it is not. If you go simply by the standard about evolving standards of decency, are we saying that it's a one-way ratchet? In other words, can we only evolve toward, you know, lessening the death penalty, or could you evolve to increasing the use of the death penalty? And so, you know, Justice Kennedy may be in a position in this case to have said well, you know, it is a one-way ratchet.
And one of the things he pointed out was that in 2005 there was something like 5,000 child rapes, and the specter of now opening the doors wide to the death penalty for rape cases was too much, I think, to bear, and I think Jonathan has it right. It reflects a deep skepticism about the death penalty.
MARTIN: Jonathan, I wanted to ask you one more thing about this before we move on to the D.C. handgun ban. I want to ask about the role of race. I mean, the American Civil Liberties Union, the NAACP Legal Defense and Education Fund said an historical consensus existed against the death penalty for rape in the U.S. except for some states, mainly in the south, that essentially targeted blacks for this penalty. Was that a factor in the court's decision?
Mr. FRANKLIN: That was not a factor in the court's decision, but the court, I think, was aware of those statistics. The court itself noted that between 1930 and 1964, 455 people were executed for either child or adult rape. What the NAACP Legal Defense Fund brief pointed out was that of those 455 people, 405 or 89 percent were African-American. In this case, the victim and the perpetrator were both African-American.
I do think that the court indirectly may have recognized the issue by noting the deep concerns it had for the arbitrary nature of the death penalty, which in the past, statistically has disproportionally affected African-Americans, particularly where the victim is white.
MARTIN: If you're just joining us, you're listening to Tell Me More from NPR News and I'm speaking about the court's most recent decisions and an upcoming decision with Jonathan Franklin, a partner at Fulbright and Jaworski, and Mary Cheh, who's also a D.C. councilmember, as well as a law professor.
Mary Cheh, I wanted to talk about the upcoming decision expected today on whether the District's strict controls on handgun ownership can stand. What's the issue at stake here?
Ms. CHEH: Well, the first issue is, what is the nature of the right that may be involved? Is it a collective right of people to bear arms in the sense of a militia, an organized force of some sort, or is it an individual right to bear arms? You're always on thin ice, I guess, projecting from oral argument, but it look as though there is a majority to say that there is some individual right.
That would raise the second question, which we will as a council meet about today when we get this opinion. Namely, if there is such a right, what is the standard by which it is protected? Is it only protected against unreasonable regulation, in which case the legislature, in this case the council, would have broad latitude to regulate anyway? Or is it some form of heightened protection? I suspect it's going to be reasonableness, and whatever space they give us to regulate, I would predict that we will occupy it.
MARTIN: Jonathan, I'm curious about why this case is only - the issue like this is only coming up now. Gun control is just one of these perpetual hot-button issues. I'm just - I wonder if you could shed some light on that?
Mr. FRANKLIN: Well, in the lower courts, historically, in the past decades, the courts had agreed that the right was related to a militia and was not an individual right of self-defense. There had been one or two cases that had gone the other way, but the D.C. case really was the first time that anyone had mounted a very sustained and serious challenge. And the D.C. law, I think, is generally regarded as either one of the most restrictive or perhaps the most restrictive in the country, so it has taken quite a while for this case to come up, but the Supreme Court really has not issued an opinion in this area in many, many, many years, so this will be a landmark decision, whatever it holds.
MARTIN: Mary, it's my understanding, based on living in this community and based on hearing public officials talk about it, as well as citizens talking about it, there's a very strong support for handgun controls here. On the other hand, a lot of people think it's just ridiculous. The - D.C. is surrounded by jurisdictions with far less restrictive rules, there's obviously a very lively black market in handguns in this community. So how does this - how does the District leadership address this, if the court does decide that there is this individual right?
Professor CHEH: Well first, in terms of being awash in guns, which you might characterize us as, you're right, we have a problem because we're a small jurisdiction and we're influenced by other jurisdictions around us. But I'm just reminded of the expression, you know, you do the best you can.
In addition, there's a strongly felt notion that if there are more guns, while you may have the anecdotal case where someone was able to use a gun, you know, to protect him or herself, there are so many more instances where by way of accidents or domestic violence or other kinds of incidents, the fact of guns produces more violence.
In addition, there's a tendency, however small, for those legal guns to seep into an illegal market. So again, you do the best you can, and there is a strong feeling that we will try to have as strict a gun regulation as we can possibly manage.
MARTIN: And Jonathan, I wanted to raise again the question of race that historically, strict gun control bans earlier in the century were used by white officials to keep guns out of the hands of former slaves and the free black population. This was an issue raised also in an amicus brief to the court, that gun bans have been used as a kind of a mark of second-class citizenship directed at certain populations. Is that an issue that the court would consider?
Mr. FRANKLIN: It - well, we'll have to see. I don't - I think that in fact, the issue was turned around on both sides because I think that those on the other side actually pointed to laws that were trying to keep - you know, to keep guns away from African-Americans. And then there were certain people who were worried about the gun violence in the African-American community.
I don't know that that's got to be an aspect of the court's opinion, but I think the key thing that will come out of this opinion is what degree of deference do those states and localities in the District of Columbia have to regulate in this area?
And since this is really going to be the first opinion, assuming they do find a non-militia-based right in the area, it will be very important to see how much latitude is given to the states and localities and the District of Columbia. And frankly, whether or not the Second Amendment applies to states and not just the federal government is also a key question, which I don't think the court will get into.
MARTIN: Very briefly, because as Professor Cheh said, it's very hard to retrieve these from oral argument, do you get a sense of which way the court was going, based on your argument?
Mr. FRANKLIN: Well, I would second the view that it's very hazardous to predict from oral argument, but it did appear, at least from the argument, that there seemed to be a majority in favor of a non-militia-based right. How far that right goes, I think, remains to be seen, and of course, I've been wrong before. I'm predicting from argument, and we will know quite soon...
MARTIN: Very soon, yeah.
Mr. FRANKLIN: What the answer will be.
MARTIN: Jonathan Franklin is a litigation partner and head of the Supreme Court and Appellate practice at Fulbright & Jaworski. He was here in our Washington office, and he joined us by phone from his office in Washington. We were also joined by Mary Cheh, she's a councilwoman in the District of Columbia and a law professor at George Washington University. She joined us in our Washington studio. We're going to check in with them for updates on the Supreme Court's upcoming decision concerning overturning the gun ban - the possible decision to overturn the gun ban in D.C. later today. Thank you both so much.
Professor CHEH: Thank you.
Mr. FRANKLIN: Thank you.