Back in 2009, we were new to blogging over here at the Law Blogger when a very differently configured SCOTUS last applied state law to the Second Amendment. In District of Columbia v Heller, decided in 2008, SCOTUS recognized for the first time an individual's right to bear arms in self defense.

Nearly 10-years ago to the day, we predicted that the 2nd Amendment cases yet to be decided that term would inure to the benefit of gun owners; we were correct. Our earlier post sets the stage for the case argued today before the SCOTUS; a case straight out of New York City.

This recent case, known as New York State Rifle and Pistol Owners v New York City, involves a relatively strict local ordinance banning transportation of personally owned firearms within the city. Eventually, NYC's licensed gun owners grew weary of violating this ordinance every time they wanted to take their weapons outside their homes outside the City. Asserting that the ordinance unconstitutionally interfered with their right to "keep and bear arms", they sued the Big Apple.

Both the federal court in Manhattan and the Second Circuit upheld Gotham's local ordinance. When the gun owners' petition for certeriorari was granted, our nation took note. Today, both sides argued before our High Court.

One of the first hurdles for the gun owner's this morning was the inconvenient fact that NYC amended its ordinance, gutting the onerous sections central to the litigation. In appellate terms, this rendered the issue moot; or at least arguably moot. Curiously, when NYC advised the SCOTUS of the amendment this summer, asking for a dismissal, the High Court declined to do so, scheduling the oral arguments for today.

Significantly, the mootness component of the New York case may give the SCOTUS the perfect cover to avoid a contentious 5-4 plurality on the hot-button issue of gun control. If the Court finds that the amendment rendered the gun ordinance constitutional, then there will be no merits decision or analysis of the Second Amendment.

According to the professional court watchers, the justices spent precious little oral argument time addressing whether NYC's former ordinance actually violated the Second Amendment. One clue from the Court's liberal wing arose when Justice Sonia Sotomayor characterized Heller's standard of determining whether the gun restriction was consistent with the "text, spirit and tradition" of the Second Amendment, was a "made-up" standard. On the other end of the SCOTUS spectrum, Justices Neil Gorsuch and Samuel Alito were focused on keeping the case from getting dismissed, and getting to the merits of the gun restriction.

As the case goes to conference over the next few months, the internal debate will, no doubt, involve gun control in the light of America's protracted epidemic of gun violence, shooting rampages, and weapons-based mass murder. This blog touched this nerve about a year ago in this post on "assault rifles"; the post resulted in dozens of lively comments on both sides of the issue.

We here at the Law Blogger will monitor the case and keep our readers posted. If the Court decides to address the merits of the case, an anxiously-awaited decision will be released in late May or June.  Otherwise, expect a one paragraph mootness dismissal with Justices Gorsuch and Alito writing separately.

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Post #627

By:  Timothy P. Flynn

Paul Fletcher, the publisher of Michigan Lawyers Weekly, suggested that Justice Antonin Scalia should rent episodes of the HBO mega-hits, "Game of Thrones" and "Boardwalk Empire".  The purpose of this: to educate Justice Scalia about HBO [referenced in a recent case]; he seemed to misunderstand the pay-to-view business model of the network; he has probably never had cause to purchase the service.

Last year, Chief Justice John Roberts famously inquired about the difference between an e-mail and a pager. Imagine that disconnect.  Remember pagers...?  And imagine life without e-mail or cell phone; there's an upside to that world view.

Then there's Justice Anthony Kennedy who assessed that mission-critical high-end software coding could be accomplished by "any group of computer people sitting around a coffee shop", over a weekend, munching on code; magically producing software by Monday morning, in a commerce-ready format no less.  Also very disconnected.

According to Fletcher, Justice Sonia Sotomayor, despite her minor "netflick - netflix" gaffe during some recent oral arguments, gets the highest marks for being techno savvy.  Her colleagues, on the other hand, were described as "incompetent Luddites" by an unidentified legal blogger that spoke with the Reuters news service.  We here at the Law Blogger agree with Fletcher that such an assessment is overly harsh; probably wasn't anyone from over at SCOTUSBlog.

A simple solution is to have the SCOTUS law clerk corps train the Justices about the basics of wired e-law with a few clutch, but rudimentary devices.  Such things are traditionally delegated in the marble fortress housing the SCOTUS chambers.

At some point, however, reality does finally come crashing in.  Historically, SCOTUS lags behind, relative to the other branches of our government, from a technological perspective where, repeatedly, it receives poor marks.  

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Last Monday, the SCOTUS issued a 5-4 decision in what could turn into a seminal 4th Amendment case; United States vs Jones.  The High Court strongly embraced privacy here in the electronic age.

In 2004, Antoine Jones owned and operated a hopping night club in downtown Washington D.C.  His joint was so jumpin, it caught the attention of a joint drug task force consisting of the FBI and the Washington PD.

The task force staked out the club by filming all the action at the front door.  Also, Jones' cell phones were tapped and data dumped.  With this evidence in hand, the task force applied for and was granted a warrant to place a GPS tracking device on Jones' wife's Jeep Cherokee within 10-days and within the District of Colombia.

Problem: the GPS device was placed on Jones' vehicle on the 11th day, and in Maryland.  The vehicle was tracked for 28-days and a case for cocaine distribution was submitted for prosecution based, in part, on the evidence collected through the GPS tracker.

Prior to his first trial, Jones moved to suppress the GPS data; his motion was only granted in part.  The trial resulted in a hung jury.  Jones was tried again, and ultimately he was convicted and sentenced to life imprisonment.

The federal appellate court, the D.C. Circuit Court of Appeals, reversed Jones' conviction and SCOTUS granted the U.S. Solicitor's petition for certerorari.  On appeal, the government conceded to the botched execution of the warrant, arguing no warrant was needed in the first place.

Last November, when the case was orally argued before the United States Supreme Court, the Justices were clearly troubled by the government's argument.  An appellate lawyer can glean a lot about the likely outcome of a case from the questions justices and judges pose, or don't pose, during oral argument.

In Jones, Justice Steven Breyer likened the government's position to George Orwell's 1984, commenting to the Solicitor General, "If you win this case, there is nothing to prevent police or government from monitoring 24-hours a day, every citizen of the United States."

Chief Justice John Roberts wanted to know whether the Solicitor General's argument meant that the government could place tracking devices on the vehicles of the 9 Justices.

The opinions themselves, contain Justices' musings [dicta] on what the founders would have ruled back in 1791, regarding these confounded GPS devices.

Justice Sonia Sotomayor wrote a concurrence taking a broad view of our privacy protections guaranteed by the Fourth Amendment, against the many highly sophisticated new electronic tracking devices deployed by the government.  Justice Anthony Scalia, writing for the majority, tailored a more narrow view of privacy; couching his conclusion on the basic definition of a "search", and clearly demarcating our "expectation of privacy" to include satellite tracking device-free vehicles.  

Flatly rejecting the government's argument that the temporary installation of the GPS tracking device was not a search, the Scalia majority affirmed the DC Circuit's reversal of Jones' conviction, warning authorities they needed a probable cause warrant in order to attach tracking devices.

Other than Sotomayor's concurrence, which does not bind future courts, SCOTUS  did not provide a sweeping enhancement of privacy rights in the electronic age.

Dodging a serious sentencing bullet, life, Mr. Jones is now free to go; his conviction for distributing cocaine stays reversed.

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This case was straight out of Detroit.  Anthony Covington was lying next to his car at a gas station, shot in the stomach, bleeding out, but still alive and speaking with the Detroit Police.

Just before he died, he identified Rick Bryant as his shooter.  Bryant's subsequent conviction, based largely on the dying man's identification, went all the way to the SCOTUS and was decided last month.

Conviction affirmed; and in the process, one of the many exceptions to the hearsay rule is broadly expanded at the expense of accused persons everywhere.

The 6-2 decision in Michigan v Bryant erodes the confrontation clause of the Sixth Amendment requiring that all witnesses against an accused be brought to court.  Surprisingly, Justice Sotomayor wrote for the majority; Justice Giinsburg recused herself; and just as surprisingly, Justice Scalia wrote in dissent.

This case is significant to the extent that it allows police officers to testify at a trial about what an out-of-court (i.e. hearsay) witness said when that witness is no longer available for purposes of cross-examination and in-court confrontation.  Whether a dying man's declaration comes into evidence at a criminal trial depends on the "testimonial" nature of his utterance.

Prior SCOTUS decisions have addressed this problem.  Until now, two domestic violence cases established each end of the continuum.

In the well-known case of Davis v Washington, the declarant's statment -made during a 911 call- was admitted because the emergency was ongoing when the statement was made.  The presence of the emergency made the statement non-testimonial and thus, admissible in court even though the declarant was not present at the trial.

On the other hand, when a statement is made after the emergency is extinguished, as in Hammond v Indiana, then such a statement is clearly testimonial; that witness must be brought into court, or the statement is excluded from trial.  The witness in Hammond made her statement from the safety of her home during a subsequent police visit. 

The Bryant Court constructs a complicated two-perspective test to determine the "testimonial" nature of a dying man's declaration.  A reviewing court must now consider both the declarant's primary purpose in uttering the statement, along with the recipient's purpose in receiving the statement.  Say what??

Writing for the dissent, Justice Scalia, not usually a champion for the defense but an ardent supporter of the confrontation clause, thinks the question "is an absurdly easy one".  The murder victim from Detroit, in his last breath, was telling the Detroit Police who shot him so they could apprehend the shooter; not to stop any "emergency".  Therefore, the statement was testimonial in nature and should not be admissible in court according to Scalia's analysis.

Seems like each year SCOTUS issues at least one decision from Detroit and the surrounding area that has a local murder at issue.  Last year it was Warden Berguhis v Thompkins; this year it's Rick Bryant's case.

Kinda sad that we're known for the laws that get spawned from these murders.

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Justice Sonia Sotomayor

Ok, we've seen this one coming down the tracks.  The ABA Journal is reporting that Justice Sonia Sotomayor told the managing partner of Sydney Austin's Washington, D.C. office, Carter Phillips, to "slow down from the rhetoric", as Phillips began his argument before the High Court on behalf of the State of California in the Schwarznegger -v- Plata  prison overcrowding case.

Justice Sotomayor also had a series of hard questions for California's appellate attorney such as how his client could possibly explain recent prison deaths and why these prisons are choking with dazed, deranged inmates sitting in their own feces.  She wanted to know what California's plan will be.

 As you can imagine, the present Justice-mix soon erupted and the debate was carried on, heatedly, among the jurists themselves.  The high-powered lawyers were rendered oddly silent, as the intra-jurist discussion was occasionally refereed by Chief Justice John Roberts.

According to eye-witness accounts from among the professional-stocked galleries, Justice Samuel Alito was visibly agitated pondering the prospect of newly released inmates cruising the streets of California and, eventually, the nation.

Court watchers once again believe that the Court will line-up along their classic "ideological" lines, neutralizing each other, 4 votes to 4; and setting up Justice Anthony Kennedy to write the tie-breaking concurring opinion.

Even if the Court's opinion amounts to a mere plurality (less binding on subsequent couts), a landmark prisoner's rights opinion is heralded.  We will, of course, update you on the SCOTUS opinion.  You'll know when this decision hits (March/April?) as it will be all over your evening news.

Meanwhile, the SCOTUSblog has posted two fascinating segments from yesterday's oral arguments. 

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