Two areas of the law where the Supreme Court made major pronouncements, and then all but dropped the subject, continued on Monday to remain off the Court’s decision docket.  One was the intensifying controversy over Second Amendment rights; the other was the lingering controversy over the fate of prisoners held at Guantanamo Bay, Cuba.  Without comment, the Court denied review of new cases, keeping intact a lengthening list of refusals.

Since the Court’s 2008 decision declaring a personal right to have a gun under the Second Amendment, and its 2010 decision expanding that right nationwide, the Justices have steadfastly refused to say anything more about how far that right extends.  And since its 2008 decision giving Guantanamo Bay detainees a right to go to court to protest their prolonged imprisonment, it has routinely denied pleas to spell out how that ruling should be applied.

The pattern continued on Monday, as the Justices without explanation — and with no dissenting votes recorded — chose not to take on the Second Amendment case of Drake v. Jerejian, or the Guantanamo case of Al Warafi v. Obama.

Only two explanations seem plausible: either the Court is content to let lower courts work out the details of gun rights and detention authority, or the Justices are hesitating to take on a new case because they are not sure how the votes will be cast on final decisions.

Probably the biggest question overhanging the Second Amendment is whether the right to have a gun for personal self-defense exists outside the home.  Some courts have said yes, some have said no, and some have not been sure either way.  That was the issue raised in the Drake case, seeking to test a New Jersey law that requires an individual who wants to carry a handgun in public to get a permit to do so; to obtain such a permit, one has to convince officials that the person has a “justifiable need” for that privilege.

There is a clear split among federal appeals courts on the outside-the-home issue.  In the Drake case, the U.S. Court of Appeals for the Third Circuit found no Second Amendment violation with the handgun permit law.

Probably the biggest question overhanging Guantanamo Bay prisoners — that is, those being held there who are not being prosecuted for any crimes — is whether and how long they can be kept there if they did not actively engage in armed conflict against the U.S. or its allies before they were captured.  Justice Stephen G. Breyer signaled in a recent opinion that this is an open question.

And that appeared to be the situation in the new Al Warafi case.  He and his lawyers have insisted that he went to Afghanistan to act as a medical worker, in clinics and hospitals, and his stint with Taliban forces was only as a medical aide.  His detention was upheld by lower courts, however, because he was found to have been a part of the Taliban terrorist network — regardless whether he had engaged in armed hostilities himself.

Those denials came among a series of orders the Court issued before beginning a two-week recess.  Here, in summary, were some of the other actions:

** The Court agreed to rule — at its Term starting on October — on two new cases, T-Mobile South v. City of Roswell, on what duties a local government has to explain why it has denied a request to build a new wireless service facility, and M&G Polymers USA v. Tackett, with the Court granting review on only the first issue raised: what steps should a court take in deciding what a labor contract intended about the continuation of health care benefits for retired workers after the contract ended?

** In a summary decision, in Tolan v. Cotton, the Court ordered a federal appeals court to reexamine a case in which an officer shot and wounded a suspect who protested when officers were physically pushing his mother around after she protested that her son had committed no crime.  The incident arose out of an officer’s mistaken conclusion that the son had stolen a car — which, in fact, was the family’s own car.  The unsigned (“per curiam”) opinion reminded lower courts how they are to handle a summary judgment issue when there is a dispute over the facts.

** The Court invited the U.S. Solicitor General to offer the government’s views on whether states have the power to limit the role that national banks may carry out in their state when they foreclose on property to satisfy a debt.  That is the issue in Federal National Mortgage Association v. Sundquist.

** After examining for the twenty-first time — as it has at every Conference since September — a case on the role of federal appeals courts in state habeas cases, the Court once again took no action on Ryan v. Hurles, which has now set a clear record for the number of times a case has been pondered without action.  There has been no explanation what the Court is doing with that case.

Posted in Featured, Merits Cases

Recommended Citation: Lyle Denniston, Staying away from guns and Gitmo, SCOTUSblog (May. 5, 2014, 12:00 PM),