The Great Debate

Three major legal questions are now swirling around the Boston bombing suspect, Dzhokhar Tsarnaev.  Since his dramatic capture Friday night, the public debate has already begun muddling these issues.

An overarching question is whether the United States can legally treat Tsarnaev as an enemy combatant, and if not, whether his rights as a civilian defendant can be altered because he is accused of terrorism. President Barack Obama has taken a measured, but concerning, approach on this.

The first question depends on the law – so there is a right or wrong answer. If the Justice Department tried to classify Tsarnaev as an enemy combatant without the proper legal authority, for example, the courts would reject that attempt and completely reclassify him.

Senators  John McCain (R-Ariz.) and Lindsay Graham (R-S.C.), as well as other elected officials, are now calling on the Obama administration to follow the enemy combatant route. Before the Justice Department considers whether that’s a good idea, however, it must determine if it is a legal possibility.

The short answer is no – unless evidence emerges that tangibly links the suspect to enemy forces, like al Qaeda, that are listed in the September 11, 2001 authorization of force. This is the main source of the administration’s war powers, and courts have only applied the enemy combatant authority to potential defendants who are in or “substantially” backing al Qaeda, the Taliban or other related forces.

It’s rare to reach a point in our national sense of humor that a sitting Supreme Court justice emerges as the butt of popular jokes for comments he made during an oral argument. That’s what happened last week, however, after Justice Antonin Scalia asked lawyers defending Congress’s extension of Section 5 of the 1965 Voting Rights Act whether maintaining the pre-clearance formula for nine “covered” states, which are subject to federal oversight, was really just a “racial entitlement” program and not a constitutional necessity.

The media filled with guffaws about the justice’s audacity. Cartoonists ridiculed his racial insensitivity. MSNBC talk show host Rachel Maddow, dismissing Scalia’s words as mere willful provocation, called him a “troll.”

We’d be wise to watch the name-calling. Insulting as Scalia’s words sound, there’s more to the justice’s comments than political incorrectness. For those who care about more than full and fair voting rights for minorities, responding to the perceived slight with more name-calling misses the point. Scalia was talking about far more than the Voting Rights Act. He was talking about whether the Constitution affords minorities any real protection for a range of discrimination anymore.

We hope 2013 brings a civil, intelligent, and constructive national debate about gun policy. Past debates often failed to get traction because Americans have a fundamental disagreement about the meaning of the Second Amendment. Emotions and anger take over – and rational discourse disappears.

But we all now owe the 26 little children and teachers murdered in the Sandy Hook Elementary School in Newtown, Connecticut, a sincere effort to bring light rather than heat to this debate. It does not advance progress for one side to insist that all guns should be confiscated while the other side argues “good guys” should shoot the “bad guys.”

What exactly is the right the Second Amendment protects? In the Supreme Court’s 2008 Heller decision, Justice Antonin Scalia was clear writing for the majority: The Second Amendment does not protect “a right to keep and carry any weapon whatsoever in any way whatsoever and for whatever purpose.”