Posted on June 29, 2010 at 10:42 pm by James Bickford
Despite the draw of theÂ Kagan hearings, commentators continued to digest the Courtâ€™s most recent decisions.Â Ilya Somin of the Volokh Conspiracy suggests that McDonald v. Chicago will lead to â€œlittle if any change in the actual extent of gun regulationâ€ by the states.Â Adam Cohen reaches a similar conclusion in Time.Â Ashby Jones of the Wall Street Journal Law Blog predicts that â€œ[t]he decision will likely trigger a flood of suits in states and cities with restrictive laws, so it could take years before the practical impact of the ruling is clear.â€Â Frederick Kunkle reports on McDonaldâ€™s reception in Virginia for the Washington Post.Â At the Sentencing Law & Policy Blog, Douglas Berman suggests that extra attention should be paid to the development of Second Amendment jurisprudence in the six states that â€œlack any state constitutional provisions concerning arms or gun rights: California, Iowa, Maryland, Minnesota, New Jersey and New York.â€
Also at Volokh, Eugene Volokh speculates about McDonaldâ€™s effect in states that ban gun possession by young adults: his â€œsense is that these laws might well be struck downâ€ because lesser constitutional rights have been held to apply after age eighteen, or even before.Â David Kopel posts a podcast agreeing with McDonald. Â In a separate post, Somin addresses Justice Breyerâ€™s dissent in McDonald; she concedes that â€œgun rights probably do cause at least some deaths that might otherwise have been prevented,â€ but he counters that â€œ[i]n that respectâ€¦ they are no different from numerous other constitutional rights.â€Â Eugene Volokh suggests that McDonald may have yet another side effect: the Courtâ€™s decision in Apodaca v. Oregon, holding that the Fourteenth Amendment does not incorporate the Sixth Amendmentâ€™s requirement of a unanimous criminal verdict against the states, may now be vulnerable.
Meanwhile, the City of Chicago is already responding.Â In the Chicago Sun-Times, Fran Spielman reports that the city is considering a modified ban that would limit households to one handgun per person, and ban gun dealers within the city limits.Â Don Babwin of the Associated Press also has coverage of this new proposal.
As for Christian Legal Society v. Martinez, in the New York Daily News, Eugene Volokh applauds the Courtâ€™s decision.Â He reasons that â€œwhere government funding isn’t involved, both religious groups and secular ideological groups have a constitutional right to exclude prospective members who don’t share their views. But where the government chooses to provide subsidies, it may impose nondiscrimination conditions on those subsidies.â€Â And Patheos.com has an interview with Michael McConnell, the former Tenth Circuit judge who argued the case for the Christian Legal Society.Â McConnell says that because â€œthe court declined to rule on most of our arguments . . . there will be a lot more litigation in the future.â€
In Slate, Dahlia Lithwick connects the Courtâ€™s recent decisions to the discourse about the role of empathy in judging.Â For Lithwick, â€œreading Justice Samuel Alito’s very heartfelt dissent in yesterday’s Christian Legal Society case suggests that [supposedly] improper empathy is cropping up all over.â€Â As part of the same discussion, Paul Clement debates whether the Courtâ€™s decision in Free Enterprise Fund v. Public Company Accounting Oversight Board â€œis an important separation-of-powers decision that portends a major doctrinal shift in the court’s approach to separation-of-powers issues or a nothing-burger that does not provide any meaningful relief even to the parties that challenged the law.â€Â On the op-ed page of the Wall Street Journal, Mallory Factor argues that the Free Enterprise decision did not go far enough, while Ed Oâ€™Keefe â€“ blogging for the Washington Post â€“ asks whether the decision leaves the constitutionality of other federal positions in question.
Over at the Legal Pulse, Michael Kiklis (an Akin Gump partner) comments on Bilski v. Kappos, noting that although â€œthe Supreme Court did not endorse prior tests used by the Federal Circuit, it did not foreclose the Federal Circuit from adopting â€˜other limitingâ€™ criteria for patentable subject matter determinations.â€Â In Wired, Brandon Keim writes that the case â€œmay inspire new patent tests aimed at the legally troublesome biotechnology field.â€
At the Election Law Blog, Rick Hasen notes the summary affirmance of the D.C. Circuitâ€™s opinion in Republican National Committee v. FEC.Â Lyle Denniston reported on that six-to-three decision for this blog; Hasen argues that â€œthis is only temporary good news for those who think the soft money ban is an important anticorruption component of federal campaign finance law.â€Â David Savage reports on the decision for the Los Angeles Times; Adam Liptak notes it for the New York Times.
Elsewhere in the New York Times, Adam Liptak has a look back at the Term. Â He concludes that â€œ[j]udicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.â€Â Joan Biskupic has an account of yesterdayâ€™s proceedings in USA Today.Â On the Wall Street Journalâ€™s Washington Wire Blog, Jess Bravin notes the brevity of yesterdayâ€™s parting ceremonies.
Finally, in the Atlantic, Henry Fetter considers the role played by Justice Stevens in the 1951 congressional hearings on baseballâ€™s antitrust exemption, which â€œproved to be a turning point in the history of American sports.â€