Howard Bashman has two posts discussing my point that the 9th Circuit was acting improperly in striking down an exception to a criminal law. In the first, Howard argues that the California legislature would very likely have approved of the court's action, and that this minimizes the intrusion into the legislature's prerogatives. Moreover, he says, what about a murder law that has some exception that a court thinks is improper? Should the court really strike down the entire law against murder rather than eliminating the exception?

The second post quotes two emails that reference a famous New York case where a court considered a rape law that made an exception for spousal rape. The court there thought that the legislature would rather have the exception stricken than have the entire law invalidated. (I would suggest, however, that if the court had take the latter course, the legislature would have taken all of an hour or two to reenact the rape law without the exception.)

In any event, all this merely goes to show that sometimes legislatures would prefer that a court eliminate an exception rather than strike down the whole law. But we're not just talking about legislative preference here. There are two additional reasons not to strike down an exception: 1) It's not fair as to the people who relied on the exception; and 2) The court has no effective way of enforcing such a ruling, given the existence of prosecutorial discretion. Legislative preference has nothing to do with those arguments.

Let's talk about the reliance interest briefly. It would sound odd to suggest that men who "rely" on the exception for spousal rape deserve any respect for such reliance. And I don't intend to suggest that. At first thought, my instinct is to suggest that we look at the traditional distinction in criminal law between those acts that are bad in themselves (malum in se) and those that are bad only because prohibited (malum in prohibitum). (This assumes, of course, some sort of belief in natural law, as opposed to sheer positivism. But I think it's a safe assumption -- just about everyone believes in natural law in some form, no matter how indignantly they deny it.)

Murder and rape are bad in themselves. Merely owning a gun is not (it doesn't harm anyone in the slightest). People who commit certain types of murder or rape in reliance on some irrational legislative exception should know that what they are doing is wrong regardless, and they have no reliance interest that we need give much weight. This is manifestly not true as to the retired peace officer who buys a gun in reliance on the law saying to him, "You're exempt." He had no reason whatsoever to think that what he was doing was wrong in any sense, and it is grossly unfair to say to him, "You're a felon now, thanks to a just-issued 9th Circuit ruling."