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Wednesday round-up

Today’s round-up was co-authored with Anna Christensen.

Oral Argument in McDonald v. City of Chicago

Today’s media and blog coverage focused overwhelmingly on yesterday’s oral argument in the Second Amendment case McDonald v. City of Chicago.  Reflecting on the proceedings, a number of news sources reported that the Justices’ questions suggested that the Court would extend Second Amendment protection to individuals subject to state and local gun-control ordinances.  Jess Bravin of the Wall Street Journal, Bill Mears of CNN, Warren Richey of the Christian Science Monitor, David Savage of the L.A. Times, Adam Liptak of the New York Times, Bob Barnes of the Washington Post, Nina Totenberg of NPR, Lyle Denniston of SCOTUSblog, Tony Mauro of the National Law Journal and the BLT, the Kansas City Star, USA Today, ACSblog, the CQ Researcher Blog, and JURIST all report that the Court seems ready to expand the Second Amendment’s reach significantly.

Several blogs provide detailed play-by-plays of yesterday’s proceedings.  Josh Blackman has a recap at his blog, while Gerard Magliocca at Concurring Opinions highlights a few key moments from what he characterizes as an otherwise “dull” argument.  Orin Kerr also recaps the action at The Volokh Conspiracy, and he highlights Justice Ginsburg’s questions regarding the implications of the petitioners’ argument in the context of an originalist approach.  Ilya Somin, also at The Volokh Conspiracy, questions Justice Ginsburg’s gender-based critique of an originalist approach to the Privileges or Immunities Clause, while fellow Volokh blogger David Kopel examines the “reasonable regulation” questions from Justices Ginsburg and Sotomayor.  Doug Berman at Sentencing Law and Policy discusses the prospect that the Second Amendment might only be partially incorporated against the states (a possibility raised during the argument by Justice Stevens).  The Washington Post’s Dana Milbank and Constitutional Law Prof Blog’s Steven Schwinn offer close reads of the proceedings as well.

In a recap of the argument at the WSJ Law Blog, Ashby Jones notes that restrictions on gun ownership will remain largely subject to the political process regardless of the Court’s ruling in McDonald.  Writing for the National Review Online’s Bench Memos blog, Clark Neily – who served as co-counsel to the plaintiffs in District of Columbia v. Heller – characterizes the Court’s apparent lack of interest in the Privileges or Immunities Clause as a “misfire” and “the continuation of a tragedy.”

In a piece cross-posted at Balkinization and the Huffington Post, Doug Kendall focuses on Justice Scalia’s disparagement of the Privileges or Immunities Clause arguments. Kendall suggests that such an approach is in keeping with the Justice’s longstanding reluctance to extend judicial protections for substantive fundamental rights.

In an opinion piece at the Wall Street Journal, Randy Barnett writes on the Justices’ apparent reluctance to revisit the 1873 Slaughter-House Cases, which significantly restricted the application of the Privileges or Immunities Clause.  And FoxNews’s John Lott, examining the “reasonableness” of the Chicago gun ban, suggests that a decision expanding Second Amendment protections would enhance, not threaten, personal safety.

In a post at Bench Memos, Roger Pilon of the Cato Institute discusses two pre-argument editorials – one by the New York Times, which described incorporation through the Privileges or Immunities Clause as “truer to the intent of the founders,” and one by the Wall Street Journal, which urged the Court to rely on the Due Process Clause.  He opines that “[i]t’s a rare day when the New York Times gets something right editorially while the Wall Street Journal gets it wrong – and on gun rights, no less.”

Finally, Adam Liptak of the New York Times spoke to some of the dozens of people who lined up outside the Court – some as early as Monday morning – for a chance to hear the oral argument in McDonald.  Third in line was Mike Sacks, a Georgetown law student who has sought to arrive first for all major arguments this Term; he was named “Law Student of the Day” yesterday by Above the Law.  Sacks has pictures and video of the line at his blog First One @ One First.  (For more multimedia coverage, has video of a Cato Institute panel of legal scholars previewing the case, and SCOTUSblog featured podcasts with five advocates involved in the case.)

Gay Marriage in Washington, DC

Yesterday, the Chief Justice – in his capacity as the Circuit Justice for the District of Columbia Circuit – declined to block a D.C. court order that will allow the District to issue marriage licenses to same-sex couples starting today.  Lyle Denniston of this blog and Bob Barnes of the Washington Post cover the dispute.  CBS News’s Jan Crawford, the BLT, Constitutional Law Prof Blog, and The Volokh Conspiracy also noted the Chief Justice’s decision.

Oral Argument in Hui v. Castaneda

The Second Amendment was not the only issue before the Justices yesterday morning; they also heard argument in Hui v. Castaneda, involving whether patients may bring Bivens actions against doctors and nurses in federal medical facilities when a remedy is also available to them under the Federal Tort Claims Act.  Luke Appling previewed the argument for SCOTUSblog here.  Nick Wilson of Courthouse News Service reports that “[t]he justices rarely interrupted the lawyers, interjecting mostly to clarify the facts of the case – like how Congress amended the law.”  And the Associated Press’s Suzanne Gamboa (via the Washington Post) summarized the sentiment of the argument: counsel for the deceased patient’s wife and daughter “seemed unable to convince the justices that the doctors are not protected from personal damage suits if they violated [the plaintiff’s] constitutional rights.”

Yesterday’s Opinions

The Justices also released opinions in three cases yesterday: Reed Elsevier v. Muchnick, Johnson v. United States, and Mac’s Shell Service, Inc. v. Shell Oil Products Company.

Of the three, Reed Elsevier received the lion’s share of media attention.  That ruling puts “[a]n $18 million settlement of a copyright infringement suit between Internet publishers and freelance writers … back on track,” explains Marcia Coyle of the National Law Journal.  The New York Times, the Wall Street Journal, and Courthouse News Service have further coverage.  [Disclosure:  Howe & Russell represented respondents Irvin Muchnick et al. in the case.]

Courthouse News Service covers the ruling in Johnson, a case about the meaning of “violent felony” under the Armed Career Criminal Act; the decision is also noted by Sentencing Law and Policy and JURIST.

The Court ruled in Mac’s Shell Service that Massachusetts gas station owners cannot sue Shell Oil for changing their franchise rental terms under the Petroleum Marketing Practice Act.  That decision is summarized by JURIST and Courthouse News Service.


  • Ross Guberman of Legal Writing Pro recalls Chief Justice Roberts’s skill as an appellate advocate and offers “Five Ways to Write Like John Roberts.”
  • Writing for the New Republic, Jeffrey Rosen asks: “just how radical is the Chief Justice?”  Rosen contends that with Citizens United, “John Roberts is now entering politically hazardous territory.”
  • At the Conglomerate, Christine Hurt has a two-part analysis of Monday’s oral argument in Skilling v. United States.
  • Nina Totenberg has a preview of today’s argument in Samantar v. Yousuf, a Foreign Sovereign Immunities Act case, at NPR.  [Disclosure:  Akin Gump and Howe & Russell represent the respondents in the case.]
  • At Concurring Opinions, Tuan Samahon reveals the author of a per curiam three-judge district court decision in a 1986 separation-of-powers case (hint: Justice Scalia).  Samahon writes that when the case reached the Supreme Court, “[t]he Court’s heavy reliance on the Scalia opinion below means that the substance of its analysis can be fairly added to the Scalia separation-of-powers canon.”
  • At Crime & Consequences, Lauren Altdoerffer takes issue with an L.A. Times editorial discussing last week’s decision in Maryland v. Shatzer.