Supreme Court Likely To Strike Down Some Gun Laws, But How Many?

Even liberal Justices seemed to agree in today's Supreme Court oral arguments that the Second Amendment must prevent cities and states from passing certain gun regulations. The Supreme Court in 2008 ruled that the Second Amendment protects an individual's right to bear firearms, but that ruling applied to only the federal government, and today's case, McDonald v. Chicago, raised the question of whether states as well are prevented from restricting access to guns.

The 2008 case of DC v. Heller held, in a controversial 5-4 decision, that the Second Amendment to the Constitution protects not only the right of the citizens in a militia to own guns, but also the fundamental right of individual citizens to own guns. If such a right is fundamental, liberal Justices asked today, is there any way the Court can consistently say that states are allowed to infringe upon that right?

Alan Gura, the lawyer for Otis McDonald, began today's session by arguing that the Supreme Court should toss out an interpretation of the Fourteenth Amendment dating back to 1873, and should instead adopt a new justification for recognizing civil rights. But Justice Antonin Scalia admitted that even though he disagrees with the current interpretation, "even I have acquiesced in it." Scalia went further, dismissing Gura's theory as the "darling of the professoriate," since a number of high-profile law professors filed briefs urging support for Gura's side. Still, Scalia did seem to strongly favor the application of the Second Amendment to the states, arguing that the Court has found that the Constitution prevents states from outlawing "homosexual conduct and … abortion on demand," so the same logic must apply to gun rights.

Justice Ruth Bader Ginsburg asked pointed questions of Gura, saying that at the time of the ratification of the Fourteenth Amendment, there were still many Americans who were denied fundamental rights, and not just in the southern states. Gura, confused, responded, "I'm sorry?" Ginsburg then explained that she was referring to married women, who at the time did not have the right to enter into contracts. If the Fourteenth Amendment was meant to ensure no American was denied these fundamental rights, she asked, why were women excluded?

There was some agreement among the Justices, though. Justices John Roberts, John Paul Stevens, Anthony Kennedy, and Stephen Breyer all seemed to be looking for a way for the Court to rule narrowly and say that the Second Amendment applies to states, but not get into the details of what that meant. Though Justice Scalia seemed to argue in favor of strong gun rights, his opinion in DC v. Heller followed this model, finding that the Second Amendment protected an individual right but declining to say how extensive that right is. That kind of minimalist decision, one favored by Chief Justice Roberts in other cases, may carry the day when the case is decided this summer.

Former Enron Executive Argues Against Biased Juries, "Honest Services" Law

Today in the Supreme Court lawyers for former Enron executive Jeff Skilling argued that the federal law criminalizing depriving someone "of the intangible right of honest services," one of the laws under which Skilling was convicted in 2006, was unconstitutionally vague and should be thrown out.

Skilling's lawyer told the Justices that the "honest services" law applies so broadly that it must fall under the Constitution's prohibition against vague laws. The lawyer, Sri Srinivasan, gave the example of an employee who uses office computers for personal use, contrary to an office policy against personal use. Srinivasan asked whether that is a violation of federal law, prompting Chief Justice John Roberts to respond that the law may be broad, but it is not vague.

The Justices overall seemed much more interested in Skilling's challenge to the method by which his jury was picked, possibly because the Court heard arguments about "honest services" in two cases this past December. When the jury was picked for Skilling's trial, each potential juror was asked to complete a 14-page questionnaire, and some jurors were then questioned directly by the judge for an average of 4.5 minutes. Srinivasan argued that that a brief interview was not long enough to properly determine if jurors would be able to give Skilling a fair chance. In addition, Srinivasan pointed to several jurors who indicated they had some pre-existing opinions of Skilling on the form, but were not asked to explain why they felt they could still give Skilling a fair trial.

Several of the Justices, most notably Justices Stephen Breyer and Sonia Sotomayor, seemed to agree that there was something wrong with the trial judge's lack of follow-up, but all the Justices were hesitant to overrule an experienced trial judge who seemed to otherwise know what he was doing. Justice Sotomayor is the only sitting Justice who has served as a trial judge. Additionally, Justice Breyer did not seem to know what kind of future guidance the Court could give trial judges as to what kind of juror questioning is needed.

The Supreme Court will decide the case before its summer recess.

High Court Considers 'Lincoln Tunnel Baby' And Sex Offender Registries

If a baby rides in a car through the Lincoln Tunnel and commits a sex offense 50 years later, never leaving New Jersey in the meantime, does the Federal Sex Offender Registration and Notification Act (SORNA) apply before the offense is committed? That was one of the questions considered in the U.S. Supreme Court today in the case of Carr v. US.

SORNA was passed in 2006, over a year after Thomas Carr moved to Indiana and failed to register there as a sex offender. Carr was arrested in 2007 and charged with failing to register, a crime that carries a sentence of up to 10 years in prison. Carr argued that, since his move took place before the law was passed, he was exempt from the registration requirement.

Government lawyers in court today argued, to the contrary, that the law’s requirement of travel was a “jurisdictional hook,” added by Congress because the federal government has no power to regulate activities that occur solely inside a single state. Thus, the law’s purpose of requiring sex offenders to register is only served when the law is given the broadest possible reading, meaning travel can have occurred even before the statute was passed.

Justices expressed some concern with the language used in the law. The law says that someone who “travels” in interstate commerce falls under the law, and the use of the present tense implies that it does not apply to prior acts. If the government wants that language read broadly, Justice Antonin Scalia asked, why should the law not apply to people who travel before they even commit the sex offense, raising the “Lincoln Tunnel Baby” hypothetical.

Several Justices expressed concerns with both parties’ interpretations of the law, so it was not clear how they would rule. The Court will announce its opinion before the summer.

Miranda Rights Fade Over Time, Rules High Court

In a unanimous ruling today, the Supreme Court held that criminal suspects who invoke their right to have an attorney present during questioning can be re-approached by police after a 14-day wait.

The case came up after Michael Shatzer made incriminating statements in 2006 about sexually abusing his son. Two and a half years earlier, Shatzer had been approached by police and questioned, but he had invoked his right to an attorney, and the police had ended questioning. After making the incriminating statements in 2006, Shatzer tried to avoid having those statements used against him at trial by arguing that his 2003 request for an attorney should have still been in effect, and police should not have approached him again.

Writing for the Court, Justice Antonin Scalia said the purpose of the rule requiring police to halt questioning is to prevent police from badgering a suspect into confessing. If a suspect is released from police custody and given time during which he could contact an attorney, the coercive effect of police questioning evaporates. In Shatzer’s case, the fact that Shatzer was in prison at the time—so his “release” was back into the prison population—was irrelevant.

Justice John Paul Stevens wrote separately, agreeing that a two-and-a-half-year break in custody is long enough to prevent coercive effects, but disagreed with the majority’s establishment of a 14-day rule. Stevens argued for a case-by-case evaluation of the circumstances of each interrogation. The burden of having to determine these circumstances, Justice Scalia wrote, is overwhelming, and thus he says a 14-day period is a good enough rule.

Supreme Court Weighs Humanitarian Aid To Terrorist Groups

Today the Supreme Court took up a very difficult question: if a person explains to a terrorist group how to pursue peaceful resolution of their goals, is that constitutionally-protected speech?

Federal law, as amended by the USAPATRIOT Act, makes it a crime to provide “training” and “expert advice or assistance” to designated terrorist groups. The Humanitarian Law Project (HLP) in years past provided advice to groups including the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), both groups designated terrorist groups by the State Department. HLP trained the groups on using international law, including petitions to the United Nations, to achieve their goals peacefully. HLP says the groups formed to protect the rights of minority populations that they argue have been marginalized, and HLP sought to help the groups move away from terrorist tactics and achieve their goals through peaceful means.

The Obama administration, however, argues that providing aid—including legal advice—to the groups would run afoul of federal law. Solicitor General Elena Kagan, who represents the federal government before the Supreme Court, argued today that aiding these groups helps them achieve legitimacy, and the government not only seeks to stop their terrorist activities, but also wants to dissolve the groups themselves. Moreover, the government argues helping the groups with any one aspect of their operation frees up personnel or gives them more time to pursue terrorism. Thus, any aid to these organizations is in effect helping them carry out terrorism, and since terrorism is an action and not speech, the First Amendment to the Constitution does not protect the aid groups.

Justices subjected both lawyers to tough questioning. Conservative Justices John Roberts, Anthony Kennedy—usually the swing vote in close cases—and Sam Alito all seemed skeptical of the contention that the aid HLP wanted to provide would not help the groups carry out terrorist attacks. They also seemed hesitant to accept the government’s argument that the line between “advice” and “expert advice” was clear; advice is legal, while expert advice is not. One point of agreement seemed to be that there was a problem with any law that might make it illegal to provide legal advice.

The lawsuit was brought as an “as applied” challenge, meaning HLP was asking only for a declaration that its activities were protected, not that the whole law be struck down, but there seemed to be much confusion about how the Court could make such a declaration without imperiling prosecution of anyone under the law. That confusion may provide an out for the Court: it could send the case back to the lower courts for consideration of whether the law is unconstitutional entirely.

The case, Holder v. Humanitarian Law Project, will be decided before this summer.