on Nov 20, 2009 at 10:42 am
At the WSJ Law Blog this morning, Ashby Jones previews McDonald v. City of Chicago, in which the Court will examine the constitutionality of a Chicago gun-control ordinance and, more generally, the Second Amendmentâ€™s applicability to the states.Â The petitioners, in a brief filed this week, rely on the Fourteenth Amendmentâ€™s Privileges or Immunities clause to argue that the right to bear arms is a â€œprivilegeâ€ that the states cannot abridge; however, Jones notes that the petitionersâ€™ originalist reading could â€œopen the door advocating for the existence of other rights that have yet to be acknowledged by the Court.â€
The Philadelphia Inquirerâ€™s Samuel Buell discusses Supreme Court precedent for the possible use of an â€œoutrageous government conductâ€ defense by accused 9/11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators.Â The defense, which dates back to a 1952 opinion by Justice Felix Frankfurter, has been used in the past to dismiss prosecutions, and Buell speculates that if Mohammed asserts a similar defense, a federal court Â could only avoid dismissing the prosecution against him â€œby eliminating the outrageous-misconduct defense – that is, ruling that it no longer exists.â€Â Thus, suggests Buell, Mohammedâ€™s case seems destined for the Court â€“ perhaps even before he can be tried.
Tony Mauro, writing for the National Law Journal (via Law.com), looks back at last monthâ€™s argument in South Carolina v. North Carolina, highlighting a comment made by Chief Justice Roberts on the distinction â€“ or lack thereof â€“ between law clerks and the â€œspecial mastersâ€ appointed to make recommendations in original jurisdiction cases.
The controversy over Justice Kennedyâ€™s speech at a Manhattan prep school continues.Â At the WSJ Law Blog, Ashby Jones reports that Justice Kennedyâ€™s office made a similar request to pre-approve any quotes from the justiceâ€™s October speech at George Washington University.Â At The Volokh Conspiracy, Eugene Volokh discusses Jess Bravinâ€™s interview with the justice and argues that the allegations of hypocrisy that have been leveled against Justice Kennedy are misguided.