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More guns?  Less Apprendi?  As I noted a couple weeks back in my preview of the upcoming US Supreme Court term, the preview wasn't complete because the Court always adds cases to its docket during the term, and among the ten cert grants it issued last week were some that could result in major changes in the legal landscape.

At the top of the food chain is McDonald v. Chicago, which raises an issue left undecided by District of Columbia v. Heller.  Heller (most recently discussed here) determined that the 2nd Amendment provided for an individual, rather than collective, right to bear arms, but since it involved DC, which is governed under Federal law, there was no call to determine whether the right applied to the states through the 14th Amendment.  Three circuit cases had since dealt with that issue:  the 2nd and 7th (in McDonald) had ruled that it was up to the Supreme Court to overrule prior cases from the late 19th century holding that the 2nd was applicable only to the Feds, while the 9th Circuit ruled to the contrary.  There are some arguments to be made on both sides, and we'll get into that when the case gets argued.  Although the case has a lot of potential to impact gun regulations, that's what a lot of people thought about Heller (as discussed here), and we're all still waiting for that to happen.  Chicago's gun ordinance, like DC's, amounted to a virtual ban, and it's quite possible that the net result of the Court's 2nd Amendment jurisprudence will be to strike down those laws while leaving other gun regulations intact.

Federal firearms law makes using a firearm during an offense a crime, and then elevates the penalty depending upon how, or what, gun was used.  In US v. O'Brien, for example, the defendants were convicted of using a Cobray pistol, an automatic weapon, during an armored truck heist.  There was some question as to whether the defendants knew whether the gun had been modified to make it automatic, but the judge concluded by a preponderance of evidence that they did, and gave them the 30-year minimum sentence.  How does that square with the Supreme Court's determination in Apprendi v. New Jersey that the maximum sentence which can be imposed for a crime is that based on facts found by a jury?  Back in 2002, in Harris v. US, the Court had upheld that exact scenario, using logic that even some of the justices acknowledged was fairly twisted.  (My words, not theirs, as if you had to guess.)  The 1st Circuit, though, decided that Blakely v. Washington had overruled Harris.

Although it's difficult to understand why the government would have appealed if they thought that outcome was likely, it's more difficult to figure out how Harris can survive the Court's more recent 6th Amendment jurisprudence on that issue.  Some have suggested that the government thought the Court might overrule Apprendi, with Sotomayor being the vote that tipped the balance.  How that math works out I don't know; only two justices who voted against Apprendi are still on the court.  It seems to be predicated on the notion that Sotomayor will be more conservative on criminal issues, because of her experience as a prosecutor.  Based on her questioning yesterday in a case involving Miranda -- which I'll get to next week -- there might be some basis to that.

You've heard a lot about how the Court frequently slaps down the 9th Circuit, and that continued last year:  The Court granted cert in 16 9th Circuit cases, and reversed all but one.  That's actually not that unusual; of the 79 cases the Court decided last year, it reversed in 63 of them, a 75.9% rate.  I've talked to some lawyers around here who do Federal work, and they're concerned that the 6th Circuit might be moving on up as a punching bag for the Court.  There's some basis to that:  the Court reversed all five 6th Circuit cases it heard last year, and last week it granted cert in two more, both habeas cases out of Michigan.  One involves challenges to the racial composition of juries, and the other to whether Miranda is violated if the officer advises the defendant of his rights, the defendant acknowledges he understands them, but doesn't answer as to whether he's invoked or waived them.  More problematic from the defense standpoint is the standard for habeas, which is that the state court's decision must be in clear contradiction to a binding US Supreme Court case.

Of course, while the Court giveth, the Court taketh away -- or decideth not to giveth at all.  A week after granting cert in 10 cases, in denied cert in the 2000 petitions that had accumulated over the summer recess.  Several of them had First Amendment overtones, among them a Tennessee school board's ruling that displaying a Confederate flag violates its dress code, the Illinois state motor vehicle department's refusal to  offer a "Choose Life" license plate, and the firing of a deputy sheriff on the day he announced his candidacy for his boss' job.

As I'd mentioned earlier in the week, that'll be it for The Briefcase this week.  I'll be back on Monday with a slew of cases for the Update, and then it's normal posting for the next fortnight.  After that, it's off to Vegas for a few days, and if the cards treat me right, it might be Retirement Time.

Hey, it could happen.


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