How Appealing

Friday, March 9, 2007

McClatchy Newspapers are reporting: Now available online are articles headlined "Investigation into firings of U.S. attorneys hits the White House" and "Firing of U.S. attorneys may be 'enormously problematic' for Republicans."
Posted at 10:40 PM by Howard Bashman


"Court Rejects Strict Gun Law as Unconstitutional": Adam Liptak will have this article Saturday in The New York Times.
Posted at 10:35 PM by Howard Bashman


Available online at law.com: Tony Mauro reports that "D.C. Circuit Strikes Down Gun-Control Law, Priming Issue for High Court."

Marcia Coyle reports that "Power of the Internet Used in a Guantanamo Bay Case; Video of prisoner's case played on YouTube."

Jason McLure and T.R. Goldman report that "DOJ Goes Into Damage Control Over Firing of U.S. Attorneys."

In news from California, "DaimlerChrysler Hit With $50M Punitive Verdict; Lieff Cabraser tried to avoid appeal by making sure jury instructions took a recent Supreme Court opinion into consideration."

And the brand new installment of my "On Appeal" essay is headlined "9th Circuit Forgoes Opportunity to Wreak Havoc on Federal Habeas Law."
Posted at 10:30 PM by Howard Bashman



"Dred-full Decision": This evening at WSJ.com's "Washington Wire" blog, Jess Bravin has a post that begins, "It's not often these days that courts approvingly cite Dred Scott v. Sandford, the Supreme Court's 1857 decision holding that blacks could not be U.S. citizens. But Dred Scott made a surprising cameo today in another divisive constitutional issue, providing ammunition for a federal circuit court conclusion that the Second Amendment overrides the District of Columbia's ban on handguns."
Posted at 08:10 PM by Howard Bashman


On this evening's broadcast of NPR's "All Things Considered": The broadcast contained audio segments entitled "D.C. Court Overturns Strict Gun Ownership Rules" and "FBI Investigations Faulted in Scathing Report" (RealPlayer required).
Posted at 07:20 PM by Howard Bashman


"Government Files D.C. Circuit Brief in Murphy": "TaxProf Blog" has this post today and has posted the government's brief online at this link.

As noted in this earlier post, the case is now pending before the D.C. Circuit on panel rehearing. In its now-vacated original ruling, the three-judge appellate panel ruled that "insofar as §104(a)(2) permits the taxation of compensation for a personal injury, which compensation is unrelated to lost wages or earnings, that provision is unconstitutional."
Posted at 07:15 PM by Howard Bashman



"Two Justices Back Splitting 9th Circuit; Kennedy, Thomas Tell House Panel Court Is Too Big": Brent Kendall has this article today in The Daily Journal of California.

You can access archived video of the testimony via this post from yesterday.
Posted at 07:05 PM by Howard Bashman



"Court overturns DC handgun ban": James Vicini and Jeremy Pelofsky of Reuters provide this report.
Posted at 07:00 PM by Howard Bashman


"Appeals Court Guts D.C. Gun Ban": Bill Miller and Robert Barnes of The Washington Post provide this news update.

Adam Liptak of The New York Times provides a news update headlined "Appeals Court Says Gun Ban Violates 2nd Amendment."

At "SCOTUSblog," Lyle Denniston has a post titled "The Second Amendment: Is the Court interested?"

Eugene Volokh's series of posts about the ruling at "The Volokh Conspiracy" can be accessed via this link (scroll down to access the more recent posts).

And the appellate briefs and trial court pleadings can be accessed via the web site of the law firm that won today's appeal.
Posted at 05:15 PM by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Kennedy Presides Over Hamlet Trial"; "Tape of Padilla Interrogation Is Missing"; and "Rape Case Spotlights Pentagon Policy."
Posted at 03:44 PM by Howard Bashman


"Justice wants appeal bill paid": The Fort Worth Star-Telegram today contains an article that begins, "Texas Supreme Court Justice Nathan Hecht wants the state to pay $340,000 he spent in legal fees defending his right to speak out for his friend, U.S. Supreme Court nominee Harriet Miers."

And The Associated Press reports that "Justice Wants Texas to Pay Legal Bills."
Posted at 03:40 PM by Howard Bashman



"The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia's handgun law is judicial activism at its worst." So says Paul Helmke, President of the Brady Center to Prevent Gun Violence, in a news release that you can access here.
Posted at 03:28 PM by Howard Bashman


"Federal Appeals Court Strikes Down D.C. Handgun Ban": Bloomberg News provides a report that begins, "A U.S. appeals court struck down a three-decade-old District of Columbia law that bans residents from keeping a handgun in their homes, saying the Constitution's Second Amendment protects an individual right to bear arms."

And The Associated Press reports that "Appeals Court Overturns D.C. Gun Ban."

My earlier coverage of today's D.C. Circuit ruling appears at this link.
Posted at 01:40 PM by Howard Bashman



Ouch!!! -- "Because the Hawkinses' trial lawyers either do not read judicial opinions or do not understand them, or cannot distinguish a majority from a dissenting opinion, or are 'in denial,' or are 'Booker protesters,' they insist that a judge cannot be allowed to base a sentence on any facts other than those determined by the jury." So writes Seventh Circuit Judge Richard A. Posner today in an opinion issued on behalf of a unanimous three-judge panel.
Posted at 01:02 PM by Howard Bashman


Over the dissent of seven judges, U.S. Court of Appeals for the Ninth Circuit denies rehearing en banc of divided three-judge panel's decision denying evangelical Christian church's request for access to a public library meeting room to conduct, among other activities, religious worship services: The dissent from denial of rehearing en banc begins on page 4 of this PDF file that the court posted online today.

My coverage of the original divided three-judge panel's ruling appears at this link.
Posted at 12:50 PM by Howard Bashman



"Clerks Avoid Getting Their DIGs In; They just say no to cert petitions, as the court's docket shrinks": This article appears in the March 2007 issue of the ABA Journal.
Posted at 10:57 AM by Howard Bashman


"A Review of the Federal Bureau of Investigation's Use of National Security Letters": The report that the Inspector General of the U.S. Department of Justice issued today, mentioned in earlier posts here and here, is now available online at this link.
Posted at 10:54 AM by Howard Bashman


BREAKING NEWS -- Divided three-judge D.C. Circuit panel holds that the District of Columbia's gun control laws violate individuals' Second Amendment rights: You can access today's lengthy D.C. Circuit ruling at this link.

According to the majority opinion, "[T]he phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual." The majority opinion sums up its holding on this point as follows:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
The majority opinion also rejects the argument that the Second Amendment does not apply to the District of Columbia because it is not a State. And the majority opinion concludes, "Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional."

Senior Circuit Judge Laurence H. Silberman wrote the majority opinion, in which Circuit Judge Thomas B. Griffith joined. Circuit Judge Karen LeCraft Henderson dissented.

Judge Henderson's dissenting opinion makes clear that she would conclude that the Second Amendment does not bestow an individual right based on what she considers to be binding U.S. Supreme Court precedent requiring that result. But her other main point is that the majority's assertion to the contrary constitutes nothing more than dicta because the Second Amendment's protections, whatever they entail, do not extend to the District of Columbia, because it is not a State.

This is a fascinating and groundbreaking ruling that would appear to be a likely candidate for U.S. Supreme Court review if not overturned first by the en banc D.C. Circuit.

Update: "InstaPundit" notes the ruling in this post linking to additional background on the Second Amendment. At "The Volokh Conspiracy," Eugene Volokh has posts titled "Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election"; "D.C. Circuit Accepts Individual Rights View of the Second Amendment"; and "Dictum," while Orin Kerr has a post titled "DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment." And at "The BLT: The Blog of Legal Times," Tony Mauro has a post titled "D.C. Circuit Strikes Down D.C. Gun Control Laws."

My coverage of the D.C. Circuit's oral argument appeared here on the afternoon of December 7, 2006.
Posted at 10:08 AM by Howard Bashman



"First Hearings Set for 14 Key Terrorism Suspects": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 08:55 AM by Howard Bashman


Bob Egelko is reporting: Today in The San Francisco Chronicle, he has articles headlined "Mediator fails to free imprisoned blogger" and "Court rips Congress but keeps killer in jail."
Posted at 08:54 AM by Howard Bashman


"Students, author, school board president discuss 'vagina' controversy on 'Today' show": This article appears today in The Journal News of Westchester, New York. My earlier coverage appears here.
Posted at 08:50 AM by Howard Bashman


"The military's Gitmo script: A tour of the facility features strict boundaries and well-rehearsed lines." Karen J. Greenberg has this op-ed today in The Los Angeles Times.
Posted at 08:44 AM by Howard Bashman


"U.S. Report to Fault F.B.I. on Subpoenas": The New York Times today contains an article that begins, "The Justice Department’s inspector general has prepared a scathing report criticizing how the F.B.I. uses a form of administrative subpoena to obtain thousands of telephone, business and financial records without prior judicial approval."
Posted at 08:40 AM by Howard Bashman


"Judging the look of Lady Justice; Criticism greets the statue at its unveiling at the courthouse; To be just, some liked it": The St. Petersburg Times contains this article today. You can view a photograph of the statue by clicking here.
Posted at 08:30 AM by Howard Bashman


"Lambda Conference Examines 'Don't Ask, Don't Tell'": This article appears in the current issue of The Harvard Law Record.
Posted at 08:20 AM by Howard Bashman


"Prospects Bright For Federal Court Nominee; Unlike Last Year, Bryant Appears To Face Little Controversy": The Hartford Courant today contains an article that begins, "The Senate Judiciary Committee Thursday quickly, quietly and unanimously approved the once-controversial nomination of Vanessa L. Bryant as a federal district court judge. No new hearing was held, even though serious concerns about Bryant were raised at a hearing five months ago."
Posted at 08:17 AM by Howard Bashman


"Edward Hennessey, at 88; former SJC chief justice known for elegant opinions": The Boston Globe contains this obituary today. The newspaper's web site also reprints an article from 1989 headlined "Final ruling nears for SJC's Hennessey; Career seen as one of integrity."
Posted at 08:15 AM by Howard Bashman


"Gonzales Yields On Hiring Interim U.S. Attorneys": This front page article appears today in The Washington Post.

The Los Angeles Times today contains articles headlined "U.S. attorneys' hiring might return to Senate oversight; The Bush administration has agreed not to oppose restoring the confirmation process, Democrats report" and "Border politics may have cost U.S. attorney her job; Critics say Carol Lam was fired in San Diego because she ignored immigration issues."

The Chicago Tribune contains an editorial entitled "Firing offenses?"

And today in The New York Times, columnist Paul Krugman has an op-ed entitled "Department of Injustice" (TimesSelect temporary pass-through link).
Posted at 08:03 AM by Howard Bashman



"Hearings set for 'high-value' Guantanamo inmates": Reuters provides this report.
Posted at 07:55 AM by Howard Bashman


"Hatch lawyer wants reversal": The Providence (R.I.) Journal today contains an article that begins, "Survivor's most infamous star and champion -- who has often basked in the limelight and who comfortably took the witness stand in his own defense -- was missing yesterday as his Texas attorney argued at the U.S. Circuit of Appeals for his tax evasion conviction to be overturned. Richard Hatch had to remain at his federal prison in West Virginia rather than journey here to watch lawyer Michael Minns assert that Hatch was prevented from telling the whole story about why he didn't pay taxes on the $1 million he won on Survivor."

And The Boston Herald reports today that "'Survivor' con Hatches a bizarre tax appeal."
Posted at 07:44 AM by Howard Bashman



"Alito regales area's lawyers; The newest Supreme Court justice is the keynote speaker at the Federal Bar gala": This article appears today in The St. Petersburg Times.
Posted at 06:40 AM by Howard Bashman


"Bill would expand death penalty use": The San Antonio Express-News today contains an article that begins, "Rep. Debbie Riddle, R-Tomball, declared last week there's just a 'one in a million' chance that her bill expanding the death penalty to include repeat child sex offenders is unconstitutional."
Posted at 06:37 AM by Howard Bashman


"Is Lawfare Being Abused by American Lawyers?" Jeff Breinholt has this essay online today at FindLaw.
Posted at 06:33 AM by Howard Bashman






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