Court takes no action on gun case
FINAL Update 1:19 p.m.
The Supreme Court on Tuesday announced no action on a new case testing the meaning of the Second Amendment — an issue the Court has not considered in 68 years. The Orders List contained no mention of either the District of Columbia’s appeal (07-290) or a cross-petition by challengers to the city’s flat ban on private possession of handguns (07-335). The next date for possible action on these cases is likely to come after the Court’s pre-Thanksgiving Conference — either on the day of the Conference, Nov. 20, or the following Monday, Nov. 26.
The Court, of course, does not explain inaction. But among the possible reasons for delaying the case are these: one or more Justices simply asked for more time to consider the two cases; the Court may be rewriting the question or questions it will be willing to review — especially in view of the disagreement between the two sides on what should be at issue; the Court may have voted initially to deny review of one or both cases and one or more Justices are writing a dissent from the denial.
The appeal in 07-290 (District of Columbia v. Heller) raises the key issue about the Second Amendment’s meaning — that is, whether it guarantees an individual right to have a handgun for private use, at least in one’s home — and the appeal in 07-335 (Parker v. District of Columbia) poses a question about who may bring lawsuits to challenge laws before they are actively enforced. Together, the cases thus present a somewhat complex mix for the Court, and it perhaps was not much of a surprise that no order issued on Tuesday. At no point is there likely to be an answer as to what happened to bring about the delay. Both cases are expected to be re-listed for the Nov. 20 Conference.
The Court agreed to hear one new case, on the rate of recovery of the costs of paralegal services when a winning party in a case seeks attorney fees. The issue is whether paralegal services are to be paid at the market rate for such services, or only at the level of their actual cost. The Circuit Courts are divided on the issue. It arises now in the case of Richlin Security Service v. Chertoff (06-1717). Click the following links to access the opinion below of the Federal Circuit, petition for certiorari, brief in opposition, petitioner’s reply, and amicus brief of the National Association of Legal Assistants (filed in support of petitioner).
In another order, the Court asked the U.S. Solicitor General to provide the federal government’s views on whether an immediate appeal may be filed if a federal judge refuses a federal government request to dismiss a case in U.S. courts against a foreign government. The case, Exxon Mobil Corp. v. Doe I, et al. (07-81), involves a claim by eleven villagers in Indonesia that Exxon Mobil and its Indonesian subsidiary used soldiers of the Indonesian military to guard an Exxon natural gas plant in Aceh province, resulting in acts of murder, torture, and other atrocities by the soldiers. Justice Samuel A. Alito, Jr., took no part in the order seeking the government’s reaction to the appeal; he apparently owns a block of Exxon Mobil stock. Click the following links to access the opinion below of the D.C. Circuit, petition for certiorari, brief in opposition, and petitioner’s reply.
The Court denied review of two significant cases:
** It refused to hear an appeal by the National Collegiate Athletic Association seeking clarification of when a private organization may be sued for civil rights violations on the theory that it was jointly involved in the actions of a state agency. The issue arises in a lawsuit against the NCAA by a former men’s basketball coach at State University of New York at Buffalo, claiming that the NCAA injured his professional reputation in a probe of his program that led to findings of major sports rules violations. The case can now proceed to a trial. (NCAA v. Cohane, 07-107).
** For the third time this Term, the Court refused to hear an appeal or provide emergency relief for a Guantanamo Bay detainee, Algerian Ahmed Belbacha, seeking to block his transfer to his home country, where he fears torture and abuse. The Court previously had denied a plea for an original writ of habeas corpus; in Tuesday’s order, it refused to allow him to appeal directly to the Supreme Court, bypassing the D.C. Circuit, from a federal judge’s dismissal of his challenge for lack of jurisdiction. The Court also has denied a plea for emergency relief against Belbacha’s transfer. The case denied on Tuesday was Belbacha v. Bush (07-173).
November what? In your rush to post, you left off the date.
Comment by Kevin — November 13, 2007 @ 10:08 am
Is it true that the ACLU is taking the side of us citizens and private gun owners?
that would be amazing and unbelivible too
Comment by Eric schultz — November 13, 2007 @ 12:20 pm
The lesser courts are split, and the various interpretations of the 2nd are sometimes ludicrous. It is time the SCOTUS, taking into account the obvious intent of the founding fathers, told people what the 2nd really means to the individual legal resident (not just citizens).
Remember, had the Second had been written to say: “A well-fed militia being necessary for the security of a free state, the right of the people to store and eat food shall not be infringed,” in no way could that be interpreted to mean that only the National Guard has the right to eat.
Comment by John Spencer — November 13, 2007 @ 3:41 pm
Merely allowing the lower fed court decision to stand would be a meaningless outcome. There are no gun stores in Wash DC and no current system to buy handguns in other states and legally transport them to the Wash DC resident’s home. In addition, the current storage laws are not in play. Having any fiream but having it inoperable as required now (permitted arms must be locked up and/or dissambled)is useless. The home invader won’t wait for you to get ready to repel boarders
Comment by William Gray — November 13, 2007 @ 5:25 pm
Then considering no certiorari orders for Heller
today how many people think it was denied?
I have been waiting for a preeminent 2nd Amendment case for MOST OF MY LIFE!
1939 - 2007 without a case is a bit
of lackadaisical durational laziness
on Supreme Jurisprudence!
Comment by Marcus Poulin — November 13, 2007 @ 6:37 pm
If we look only at history, the Second Amendment is an amendment solely of the militia clauses (Art. I, Sec. 8), and was designed solely to prevent the Federal government from using its militia powers to arm its own forces with weapons of mass destruction while it limited the state militias to slings and arrows. The idea of using “interstate commerce” in those days to regulate firearms was off the wall — they didn’t even have interchangeable parts back then. All weapons (even cannons) were locally made.
But, there is a Federal right to arms written deeply into the structure of the Constitution, itself, in the Treason Clause and concurrent treason statutes of the States, so a blanket ban by D.C. is unconstitutional for overbreadth — it bans not only nuisance “pocket pistols” but genuine militia arms as well (e.g., my .45 auto-loader or .223). Heller has a better case if he chooses the right gun (and brings in the Ninth Amendment as well). It also helps if he pleads his life, his fortune, and his sacred honor.
I guess that makes me for Heller, though by a strange association. In the same vein, I would assert that “war” in the legal sense is a condition which can affect sovereigns only (private warfare is illegal). “Warring” on “terrorism,” like all previous such “wars” (on ignorance, poverty, inflation, &c.), employs “war” as a metaphor and has no constitutional recognition.
Osama bin Ladin is no more than a pirate.
See The Ambrose Light (SDNY, 1887).
Comment by Robert Brian Crim — November 13, 2007 @ 6:52 pm
November 20th is the day the next group
of orders will be released Kevin.
Comment by Marcus Poulin — November 13, 2007 @ 9:28 pm
hoorah,john spencer has hit the nail on the head.
each and every amendment is for the individual,
and so is the 2nd. otherwise their all useless.
Comment by william collins — November 14, 2007 @ 9:35 am
The ACLU is not taking our side Eric.
At least not at this point and probably never.
Remember ,its a Commie organization.
Comment by Doug Fennema — November 14, 2007 @ 10:54 am
Robert you’re totally wrong.
No serious Con law scholar would
give you much intellectual veracity.
Comment by Marcus Poulin — November 14, 2007 @ 10:58 am
Marcus, can please explain your disagreement with Robert’s analysis?
Comment by Lauren Smith — November 14, 2007 @ 11:19 am
What I can’t fathom is how the National Guard is even mentioned in a second amendment conversation. If you were to read the state consititutions of both MA and NH (states with polar opposite views of private gun ownership) you would find that the militia definition specifically EXCLUDES members of the National Guard from being in the militia. Their definition of militia is crystal clear that all other citizens over 18 are in the militia. That then would be the “people” and not the National Guard have thier rights protected by the constitution. This should be a non-issue and D.C. should not have been able to violate the rights of its citizens for over 30 years any more than Ray Negian and Eddie Compass should have been allowed to infringe the 2nd A rights of the citizens of New Orleans after Katrina. The real question should be not wether of not SCOTUS will take Heller, but how the hell did this get this far?
Comment by Mike Hoiriis — November 14, 2007 @ 9:45 pm
Appolgies, I can spell far better than I type!
Comment by Mike Hoiriis — November 14, 2007 @ 9:47 pm
So I did it again, sorry folks…time for bed!
Comment by Mike Hoiriis — November 14, 2007 @ 9:47 pm
The ACLU is a commie organization? I always thought of it as a lobby for terrorists. Osama bin Laden’s lobbyist in Washington.
Comment by Mark Wallace — November 15, 2007 @ 7:13 pm
The ACLU isn’t anywhere near this issue. It was the American Civil Rights Union that filed an amicus brief on the cert petition.
Comment by John Call — November 16, 2007 @ 1:29 pm
As a resident of the state where the amendment
originated, I would like to see the court rule before the mayor of Pa. and his Philadelphia
socilists take our second amendment rights away.
Comment by Dennis Mastriani — November 18, 2007 @ 12:34 am