Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.  In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

The Court, while agreeing to return to its monitoring of legal issues stirred up by government anti-terrorism efforts, did not take any immediate action on the basic question of federal judges’ power to decide the fate of detainees held at the U.S. military prison camp at Guantanamo Bay, Cuba.  It had examined anew a case left over from the prior Term — Kiyemba v. Obama (08-1234) — but the case was not on the grant list released Wednesday morning.  The next opportunity for the Court to announce some response to that case will come on Monday, when the new Term formally opens. The specific issue in the case is whether a federal judge may order the release into the U.S. of a detainee no longer considered to be an “enemy.”

The terrorism law case the Court did agree to hear — actually, it involves two petitions, which were linked for argument — involves the “material support” law, which the Justice Department has used to prosecute about 120 individuals.  About half of those resulted in guilty verdicts.  The Ninth Circuit struck down parts of the law, leading to the government appeal (Holder v. Humanitarian Law Project, 08-1498), and upheld other parts, leading to the appeal by private challengers (Humanitarian Law Project v. Holder, 09-89).

The Court will schedule all of Wednesday’s grants for oral argument no earlier than the January sitting, which begins on Jan. 11.  The first three months’ calendars have been completed.

Of the ten new grants, fully half involved cases either appealed to the Court by the federal government, or on which the government had called for review when asked by the Court for its views.   One of the latter puts before the Court another job bias case involving employment tests used to hire or promote firefighters — a reminder of one of the Court’s most controversial decisions of last Term (Ricci v. New Haven).  The new case (Lewis v. Chicago, 08-974) asks the Court to clarify the deadline for complaining to federal officials about the use of an employment test that has a stronger negative impact on minority applicants. The specific question is whether the time to file a complaint with the Equal Employment Opportunity Commission starts to run when the test results are released, or when the results are used to make actual hiring decisions.  It involves eight black individuals in Chicago, representing a class of 26,000 black applicants for entry-level firefighter positions.

The U.S. Solicitor General had suggested review of that case and, without being asked for its views, had also recommended review of another case in which it was not a direct party.  Again, the grant involved two cases, consolidated for review: Magliaccioi v. Castaneda (08-1529) and Henneford v. Castaneda (08-1547).   The issue is whether doctors and nurses in federal medical facilities are immune to damage lawsuits over flaws in medical care that are claimed to violate patients’ constitutional rights — so-called “Bivens actions.”  (An earlier post discussing these cases can be read here.)

The government cases the Court will review, in addition to the “material support” cases, are: Astrue v. Ratliff (08-1322), testing whether an individual or small business winning an award of attorneys’ fees after defeating the federal government in a court case can have the fee award reduced or even taken away to cover a separate debt owed to the government, and U.S. v. O’Brien, et al. (08-1569), asking whether, when Congress has imposed a mandatory minimum sentence for using a specific kind of gun during a violent or drug crimes, the jury or the judge is to make the finding on the type of gun. If a jury does so, it must find proof beyond a reasonable doubt; if the judge makes the finding, it is on the lesser standard of a preponderance of the evidence.

The Court, faced with an increasing number of cases filed in U.S. courts under a 1789 law seeking damages for wrongs done in foreign countries, agreed to decide whether that law allows such a lawsuit only against foreign governments, or against foreign officials who took action in their official capacity.  This case will draw the Justices into an examination of atrocities in the Somali government in the 1980s and 1990s.  A former top official of the Somali regime, Mohamed Ali Samantar, is seeking to head off a lawsuit blaming him for torture and other atrocities in Somalia in that time.  He argued in a petition (Samantar v. Yousuf, 08-1555), that the Alien Tort Statute of 1789 does not apply to foreign officials, only to governments, and that, in any event, it should not apply to a foreigner who no longer holds a government office.  Samantar now lives in Virginia, and was sued there by survivors and victims of the atrocities in Somalia.  Samantar fled the country when the government collapsed in 1991; since that time, Somalia has had no functioning government or central authority.

The Court, already having agreed to hear two cases on criminal suspects “Miranda rights,” added a third case Wednesday: Berghuis v. Thompkins (08-1470).  That case, from Michigan, will test whether it violates Miranda v. Arizona for a police officer to seek to persuade an individual in custody to cooperate, after the individual has been told of his rights but neither invoked nor waived those rights.  (The other “Miranda” cases already under review are Maryland v. Shatzer, 08-680, scheduled for argument next Monday, on whether it is unconstitutional for police to reopen questioning of a suspect after a two-year lapse following the suspect’s request for access to a lawyer, and Florida v. Powell, 08-1175, scheduled for argument on Dec. 7, testing police duty to expand on “Miranda warnings” before questioning the suspect.

The Court, already committed to one ruling on laws involving sex offenders, on Wednesday added another: Carr v. U.S., 08-1301.  That case, from Indiana, asks the Court to interpret the Sex Offender Registration and Notification Act of 2006, requiring those convicted of sex crimes to register with state and federal databases.  The question before the Court is whether it was unconstitutional for the U.S. Attorney General to apply the law retroactively to an individual whose underlying crime occurred before the law was enacted by Congress — in other words, an “Ex Post Facto” clause issue.  (The other sex offender case the Court has on its decision docket, but not yet scheduled for argument, is United States v. Comstock, 08-1224, testing the constitutionality of continued imprisonment of a sex offender considered to be dangerous, after that individual has completed serving a prison sentence for the crimes.)

The remaining case granted on Wednesday — Berghuis v. Smith, 08-1402 — is a Michigan case that seeks to have the Court clarify the test on whether a jury selected to try a criminal case actually is drawn from a fair cross-section of the community — a constitutional requirement.  In this case, the Michigan Supreme Court found no violation of that requirement when a jury pool had a 6 percent black representation, compared to a 7.28 percent share of the population in the community where the case was tried.  There is a conflict among federal Circuit Courts on the proper test.

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