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Monthly Archives: June 2008

Break for the holiday

With the Supreme Court’s 2007-08 term in the history books, it’s time for DC Dicta to take a little vacation on a beach far from Washington, DC.

We’ll be back Monday, July 7, ready to bring you the latest scoop on the goings-on in Congress and elsewhere. In the meantime, stay tuned to Lawyers USA‘s website for the legal news you crave, and check out some of our other favorite blogs (links to the right) as well.

Scalia: Can’t ban use of America’s ‘chosen’ firearm

“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.”

Justice Antonin Scalia broke down the Second Amendment, clause by clause, in coming to the conclusion that the individual right it conveyed trumps the interest in cities like the District of Columbia in banning handguns outright in D.C. v. Heller.

In the end, Scalia reasoned, “the inherent right of self-defense has been central to the Second Amendment right.”

“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose,” Scalia wrote. “The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster.”

“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution,” Scalia later noted. “The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

Justice John Paul Stevens filed a dissent joined by the rest of the Court’s so-called liberal bloc: Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. In his opinion, Stevens said it is uncontroverted that the right to bear arms is an individual right protected by the Constitution.

“But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right,” Stevens wrote. “Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes.”

Looking at the text of the Second Amendment and legal history, Stevens said the majority’s conclusion is unfounded.

“Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms,” Stevens wrote. “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

Breyer also filed a dissent, joined by Stevens, Ginsburg and Souter, echoing Stevens’ reason for dissenting and adding another.

“The second independent reason is that the protection the Amendment provides is not absolute,” Breyer wrote. “The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are-whether they do or do not include an independent interest, in self-defense-the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.”

Scalia: Can’t ban use of America’s ‘chosen’ firearm

“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.”

Justice Antonin Scalia broke down the Second Amendment, clause by clause, in coming to the conclusion that the individual right it conveyed trumps the interest in cities like the District of Columbia in banning handguns outright in D.C. v. Heller.

In the end, Scalia reasoned, “the inherent right of self-defense has been central to the Second Amendment right.”

“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose,” Scalia wrote. “The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster.”

“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution,” Scalia later noted. “The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

Justice John Paul Stevens filed a dissent joined by the rest of the Court’s so-called liberal bloc: Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. In his opinion, Stevens said it is uncontroverted that the right to bear arms is an individual right protected by the Constitution.

“But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right,” Stevens wrote. “Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes.”

Looking at the text of the Second Amendment and legal history, Stevens said the majority’s conclusion is unfounded.

“Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms,” Stevens wrote. “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

Breyer also filed a dissent, joined by Stevens, Ginsburg and Souter, echoing Stevens’ reason for dissenting and adding another.

“The second independent reason is that the protection the Amendment provides is not absolute,” Breyer wrote. “The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are-whether they do or do not include an independent interest, in self-defense-the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.”

Court strikes down DC’s gun ban

In the ruling the nation seemed to be waiting for with bated breath, the U.S. Supreme Court struck down Washington D.C.’s ban on handguns. The 5-4 opinion in D.C. v. Heller, written by Justice Antonin Scalia, found that the right to own a gun is protected by the Second Amendment.

We’ll bring you more after we’ve had a chance to read and digest the decision.

The Court also handed down Davis v. Federal Election Commission, invalidating the “Millianaire’s Amendment” campaign finance rule, and Morgan Stanley Capital Group v. Public Utility District 1, a case involving the Mobile-Sierra doctrine.

Court strikes down DC’s gun ban

In the ruling the nation seemed to be waiting for with bated breath, the U.S. Supreme Court struck down Washington D.C.’s ban on handguns. The 5-4 opinion in D.C. v. Heller, written by Justice Antonin Scalia, found that the right to own a gun is protected by the Second Amendment.

We’ll bring you more after we’ve had a chance to read and digest the decision.

The Court also handed down Davis v. Federal Election Commission, invalidating the “Millianaire’s Amendment” campaign finance rule, and Morgan Stanley Capital Group v. Public Utility District 1, a case involving the Mobile-Sierra doctrine.

Giles no surprise

I may seem surprising that the Supreme Court would rule that a murder defendant can keep the testimony of the victim out of trial unless the defendant killed the victim for the purpose of preventing the victim from testifying.

But a look back at Lawyers USA‘s coverage of oral arguments in Giles v. California shows that the Court’s justices hinted pretty clearly at the way they were leaning.

Keep in mind in reading this excerpt that Justice Antonin Scalia ultimately penned the decision, and Justice Anthony Kennedy joined Justice Stephen Breyer’s dissent in the case. Rapidly leaving the boat, indeed:

At oral arguments [in May], Los Angeles attorney Marilyn Gail Burkhardt, arguing on Giles’ behalf, seemed to have an ally in Justice Antonin Scalia – who jumped in on questions posed by other justices to help Burkhardt out in several instances.

Justice Anthony Kennedy questioned whether the statements were being offered as testimonial evidence or to prove Giles’ state of mind – a crucial issue under the Crawford analysis.

“[It seems] to me that this is responsive to his defense” of self defense, Kennedy said. “And you say: ‘Well, it’s his state of mind, and her testimony was general.’ I think it does go to his state of mind.”

Before Burkhardt could respond, Scalia did.

“I’m not following you,” he said. “Is there an exception to the hearsay rule so long as the hearsay is brought in [during] rebuttal?”

“Not to my knowledge,” Burkhardt answered.

Justice Stephen Breyer turned to 17th and 18th century common law to determine what the purpose of the Confrontation Clause was, noting that testimony by wives, children, atheists and convicted felons was not admitted.

“So now are we supposed to incorporate all of these things into the Confrontation Clause?” Breyer asked.
“Do any of them have anything to do with the Confrontation Clause?” Scalia interjected.

“No,” Burkhardt said.

“It doesn’t have to do with the Confrontation Clause that you couldn’t cross-examine a person who didn’t understand the meaning of the oath?” Breyer persisted.

“The Confrontation Clause sets forth a basic policy, which is that we are to have live testimony in court,” Burkhardt said. “We have to have witnesses available in court.”

Later, Kennedy tried to steer the conversation back to Breyer’s point.

“I think what Justice Breyer’s line of questioning points out is that there were other provisions of the evidence rule followed in England which would not allow the testimony to come in, in the first place,” Kennedy said. “But because of the restrictions he points to, there was never the occasion for the common law to explore the boundaries of the forfeiture exception in the confrontation context.”

Before Burkhardt could answer, Scalia interjected again.

“And besides which, the question that Justice Breyer was asking was already answered in Crawford, wasn’t it?” he asked.

“Yes, it was,” Burkhardt said.

“A case from which he dissented,” Scalia said, referring to Breyer.

“That is right,” Burkhardt added.

Later Breyer corrected Scalia.

“I joined Crawford, and Justice Scalia would like to kick me off the boat, which I’m rapidly leaving in any event,” Breyer said, drawing laughter from the audience.

Court rules on Exxon punitives, death penalty, Confrontation Clause and more

Today, the U.S. Supreme Court handed down some of the term’s most anticipated decisions.

In Exxon v. Baker, the Court vacated a punitive damages award against the oil company based on the actions of its agents in the massive oil spill off Alaska’s coast. Eight justices (Justice Samuel Alito took no part in the case) split evenly on the issue of whether punitive damages are allowed under maritime law, but all the justices found the $2.5 billion punitive award to be excessive, holding that it should not exceed the compensatory award of $507.5 million. (Lawyers USA subscribers can read past coverage of the case here.)

In a 5-4 opinion, with Justice Anthony Kennedy once again in the role o swing voter, the Court in Kennedy v. Louisiana struck down a state statute that made child rape an offense that could be punishable by death. The Court held that only offenses resulting in death can warrant the death penalty under the Eighth Amendment. The case in effect strikes down not only the Louisiana statute, but similar laws in states including Florida, Montana, Oklahoma and Texas.

In Giles v. California, the Court held that a murder defendant does not forfeit his rights under the Confrontation Clause when a witness is unavailable because he killed her. Only the testimony of witnesses killed for the purpose of preventing them from testifying results in a forfeiture.

And finally in Plains Commerce v. Long Family Land and Cattle, the Court held that Indian tribal courts do not have jurisdiction over disputes between companies owned by members of the tribe and companies that are not, even if the non-member company operates on a reservation.

The last three remaining decisions of the term, including the Second Amendment case D.C. v. Heller, will be delivered by the Court tomorrow.

More on these cases today on Lawyers USA’s website. Also keep an eye out for analyses on many of these cases on the website in the days ahead, and in the next issue of the paper.

Dellinger: Lack of 5-4 splits due to a term without hot topics

As we wait for the last of the Supreme Court decisions of the term to come down tomorrow (and perhaps Thursday too), Court-watchers have already been chatting about the absence of the sharply-divided, passionately-dissented, 5-4 opinions that defined the term that ended a year ago.

What is the reason for the bigger Court majorities this term? Is a shift in the Court’s collective ideology the cause? Has Chief Justice John G. Roberts, Jr. become more successful in his desire to bring greater consensus among the jurists?

No, said expert Supreme Court litigator Walter Dellinger this morning, speaking at a media briefing hosted by the National Chamber Litigation Center, the public policy law arm of the chamber of Commerce. There were fewer 5-4 splits this term, Dellinger said, because there were fewer hot-button issues before the Court like desegregation, abortion, and religion.

“I’m doubtful as to whether it’s a trend” toward consensus said Dellinger, who argued several cases before the Court this term, including the still pending cases of D.C. v. Heller and Exxon v. Baker. “I think there are fewer 5-4 cases on the docket.”

Dellinger said that when the Court tackled the hotly-debated last term, they normal minimalist approach to the Court’s decision making often gave way to wide, farther reaching opinions that spurred the sharp slits and passionate dissenting and concurring opinsions.

“I think the justices did more than they had to in the [school desegregation case],” he said, adding that he same approach was taken in the partial-birth abortion case. “None of those cases are up this term.”

The Supreme Court keeps up the suspense

Today the Court handed down three decisions – none of which deal with the death penalty, the Second Amendment, the Confrontation Clause or the Exxon Valdez oil spill. We’ll have to wait until Wednesday or Thursday for those.

The Court did rule that, absent an appeal or cross appeal by the government, a federal appellate court cannot increase the sentence of a criminal defendant sua sponte in Greenlaw v. U.S.

The Court also ruled in Rothgery v. Gillespie County that the right to counsel under the Sixth Amendment is implicated when a defendant was denied counsel at the time of his initial hearing for being a felon in possession of a firearm even when the hearing was conducted without the involvement of a prosecutor.

In the last of today’s three decisions, the Court ruled that third-party companies hired to collect on behalf of pay-phone operators have standing to sue telecommunication companies over the amount of the fees in Sprint Communications v. APCC Services.

Monday status conference: The Supremes, one week only

DC Dicta can say with certainty that the Supreme Court decisions dealing with Washington, D.C.’s gun ban, the death penalty for child rape, and an accused murderer’s confrontation clause rights will be handed down this week – because this is the last week for opinions this term. Whether they will be handed down today – well, that’s another matter. But we will brief you on today’s Supreme Court decisions later this morning.

Meanwhile,

The Washington Post reports that the White House officials ignored the legal advice they received warning that courts may not see the Guantanamo Bay situation the way they do. (WaPo)

The White House is again invoking executive privilege – this time in its refusal to provide documents related to its greenhouse gas emissions policy, and lawmakers are considering how to respond. (WaPo)

Meanwhile, the executive privilege argument involving the sought testimony of two white house officials will soon be tested in court. (AP)

The use of trademarks sold as “keywords” by Google and other search engines to trigger “sponsored links” on the side of a search page continues to be a hot button issue for any business with a website – including law firms. (Lawyers USA)

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