- The Washington Times - Monday, October 5, 2009

In their new term, the Supreme Court justices will decide such weighty issues as Chicago’s gun ban, the sentences imposed on juvenile offenders, and an issue near and dear to Washington in the fall: Who can sell an official Redskins jersey.

After a summer break that saw the historic confirmation of Justice Sonia Sotomayor as the court’s first Hispanic jurist, the Supreme Court begins its new term Monday, likely without major ideological changes. Justice Sotomayor replaces retired Justice David H. Souter, who was considered a reliable vote for the court’s liberal wing, much as Justice Sotomayor is expected to be.

“I honestly don’t think Justice Sotomayor’s arrival at the court is likely to produce any significant difference,” said David Gray, a law professor at the University of Maryland. “I don’t think this term will define Justice Sotomayor’s term as a justice or her role on the court.”


Among the cases Justice Sotomayor and her colleagues will work on is a challenge to Chicago’s handgun ban, brought in the wake of the court’s historic June 2008 ruling that struck down the decades-old gun ban in D.C. In that case, known as District of Columbia v. Heller, the court held in a 5-4 decision that the ban violated the 2nd Amendment because it prevented D.C. residents from possessing firearms for self-defense.

The decision was the first ruling in the court’s history to declare that the right to keep and bear arms is an individual right comparable to the 1st Amendment’s rights of free speech and religion.

There are similar issues in the Chicago case, known as McDonald v. City of Chicago, but at issue is whether the decision in the Heller case - which only directly affected the federal government because of D.C.’s status as a federal enclave - should also be applied to the states and to the city and other local governments they establish.

Lawyers seeking to strike down Chicago’s ban have filed a brief in the case, arguing that “the Fourteenth Amendment guarantees that fundamental individual rights may not be violated by any form of government throughout the United States.”

“Accordingly, Chicago’s handgun ban must meet the same fate as that which befell the District of Columbia’s former law,” says the brief submitted by lawyers David G. Sigale and lead counsel Alan Gura, who also argued against D.C.’s gun ban in the Heller case.

Lawyers for Chicago argue that the 2nd Amendment only binds the federal government, saying that “incorporation,” the 14th Amendment doctrine that applies most of the Bill of Rights to the states, does not cover the right to keep and bear arms.

“I think the court is going to indeed show the Second Amendment does apply to state and local laws,” said Robert Langran, a Villanova University political science professor who specializes in constitutional law. “The only thing that could sway it the other way is [that] this is a court that believes in federalism and therefore states’ rights. But I have a hunch they may toss it: I think it’s too much of a prohibition.”

Another case the court will hear this term is likely to bring up the contentious matter of using other countries’ laws to judge issues before U.S. courts.

The case is known as Graham v. Florida, and at issue is whether sentencing juveniles to life in prison without the possibility of parole for non-homicide cases violates the 8th Amendment’s provision against cruel and unusual punishment.

The case centers on Terrence Graham, who was convicted at 16 of being an accomplice to an armed burglary and attempted armed robbery of a restaurant. After violating probation terms while still a juvenile, according to a brief filed on his behalf, Graham was sentenced to life in prison without the possibility of parole.

There are 106 juvenile offenders in the U.S. serving life sentences without the possibility of parole for crimes other than murder, according to the brief. Seventy-seven of those juveniles were sentenced in Florida.

Arguments that such punishments are unconstitutional follows a 5-4 ruling in a case known as Roeper v. Simmons that said the death penalty could not be imposed on juveniles.

Mr. Gray, the Maryland law professor, said the majority decision in the Roeper case, which was written by Justice Anthony M. Kennedy, examined how other countries address juveniles and the death penalty. Justice Kennedy noted that only seven countries other than the U.S. allowed juveniles to be sentenced to death: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Congo and China.

Justice Antonin Scalia wrote what Mr. Gray termed a “stinging” dissent, in which he criticized Justice Kennedy’s use of other countries’ laws.

Subsequently, the use of international laws in addressing questions related to the U.S. Constitution became a subject of considerable debate in legal circles and arose during the confirmation hearings of Chief Justice John G. Roberts Jr., Justice Samuel A. Alito Jr. and Justice Sotomayor.

Mr. Gray predicts that however the Graham case is determined, Justice Kennedy will write an opinion citing international law and Justice Scalia will write one attacking the use of international law.

In a matter involving a lighter topic, the court will hear the case of a cap manufacturer that claims the National Football League has violated antitrust laws by selling to one company, Reebok, the exclusive rights to sell officially licensed apparel from all 32 teams.

The issues in the case - known as American Needle Inc. v. NFL - seem to come up about every 10 years involving one or another professional sports league, Mr. Gray said. American Needle wants to be able to negotiate deals with individual teams.

“It’s always funny because in these cases you get to see a little bit underneath the robes, so to speak …. Because they have a light air to them, they are a little bit more fun than the average cases,” Mr. Gray said. “If you really wanted me to go way out on a limb, I would say the majority opinion will be written by Chief Justice Roberts, and it will be hilarious. Which way it will go, I don’t know.”

• Ben Conery can be reached at bconery@washingtontimes.com.

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