Friday Round-up

By Anna Christensen
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 Amendment’s applicability to the states.  The petitioners, in a brief filed this week, rely on the Fourteenth Amendment’s Privileges or Immunities clause to argue that the right to bear arms is a “privilege” that the states cannot abridge; however, Jones notes that the petitioners’ originalist reading could “open the door advocating for the existence of other rights that have yet to be acknowledged by the Court.”

The Philadelphia Inquirer’s Samuel Buell discusses Supreme Court precedent for the possible use of an “outrageous government conduct” defense by accused 9/11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators.  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  could only avoid dismissing the prosecution against him “by eliminating the outrageous-misconduct defense – that is, ruling that it no longer exists.”  Thus, suggests Buell, Mohammed’s case seems destined for the Court – perhaps even before he can be tried.

Tony Mauro, writing for the National Law Journal (via Law.com), looks back at last month’s argument in South Carolina v. North Carolina, highlighting a comment made by Chief Justice Roberts on the distinction – or lack thereof – between law clerks and the “special masters” appointed to make recommendations in original jurisdiction cases.

The controversy over Justice Kennedy’s speech at a Manhattan prep school continues.  At the WSJ Law Blog, Ashby Jones reports that Justice Kennedy’s office made a similar request to pre-approve any quotes from the justice’s October speech at George Washington University.  At The Volokh Conspiracy, Eugene Volokh discusses Jess Bravin’s interview with the justice and argues that the allegations of hypocrisy that have been leveled against Justice Kennedy are misguided.