Alan Gura, at mic, with Richard Heller, second from left, and Clark Neily, far right, speaks to reporters in front of the Supreme Court, after the Court struck down the DC handgun ban. June 26, 2008. (Diego M. Radzinschi / LEG)
Six years after Alan Gura convinced the U.S. Supreme Court to strike down the District of Columbia’s ban on guns in the home, he again prevailed in having another city gun regulation declared unconstitutional.
U.S. District Judge Frederick Scullin Jr., a New York judge sitting by designation in Washington, ruled on July 24 that the city’s ban on publicly carrying guns for self-defense was unconstitutional. He cited the high court’s rulings in the earlier D.C. gun case from 2008, District of Columbia v. Heller; and another case, from 2010, in which the court extended gun rights to the states, McDonald v. Chicago.
“In light of Heller, McDonald and their progeny, there is no longer any basis on which this court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny,” Scullin wrote.
Gura, of Gura & Possessky in Alexandria, Va., cheered the ruling. Scullin’s decision meant that “the nation’s last explicit ban of the right to bear arms has bitten the dust,” he said in a written statement.
Scullin’s decision is on hold for now, however, as city officials decide whether to appeal or make legislative changes. The judge on July 29 approved a 90-day stay. With the stay in place, the Metropolitan Police Department sent out an alert to officers that the challenged gun laws remained in effect.
The police department reminded officers “to handle all matters regarding firearms with caution, while relying on their professionalism and training to support sound judgment while both serving public safety and respecting the rights of individuals.” — Zoe Tillman
TAKING THE GAME TO A NEW COURT
Acclaimed Washington trial lawyer Michele Roberts is taking her skills to a new court — the basketball court. Roberts is leaving Skadden, Arps, Slate, Meagher & Flom, where she’s been a partner since 2011, to become executive director of the National Basketball Players Association. According to news reports, Roberts is the first woman to head any U.S. men’s professional sports union. She doesn’t have a sports law background. Roberts started her career with the Public Defender Service in D.C., where she spent eight years and led the trial division. She continued to focus on criminal defense in private practice; she worked at Shea & Gardner before it merged with Goodwin & Procter and then jumped to Akin Gump Strauss Hauer & Feld. At Skadden, her practice has focused on complex civil and white-collar cases. She’s taking the lead in the union group as it gears up for collective-bargaining negotiations in 2017, USA Today reported. Roberts could not be reached for comment. — Zoe Tillman
ADMISSIONS FIGHT ISN’T OVER
The legal battle between Abigail Fisher and the University of Texas at Austin over its affirmative-action admissions program probably won’t be resolved anytime soon. Fisher, who is white, claims the program caused her to be denied admission because of her race. In 2013, the U.S. Supreme Court said diversity is still a valid goal, but returned her case to the U.S. Court Appeals for the Fifth Circuit to reconsider her claim under a standard less favorable to affirmative action.
On July 15, the same three-judge panel reaffirmed that the program was constitutional. In response, on July 29 Fisher’s legal team led by Bert Rein of Wiley Rein asked for en banc review from the Fifth Circuit. “It would be difficult to find a case more worthy of rehearing en banc,” Rein wrote. Rein accused the panel of “judicial adventurism” for failing to obey the Supreme Court’s 2013 mandate.
Depending on what the full circuit does, Fisher’s case could make a second trip to the Supreme Court. — Tony Mauro
OLD ARTICLE IN NEW LIGHT
Victor Bolden was just out of law school in 1990 when he published an article that uses imaginary and colorful dialogue between a deity and dead justices to explore how judges should think about race discrimination cases.
Fictional? Yes. But on Capitol Hill, in the context of judicial nominations, nothing is beyond the reach of scrutiny. Bolden, nominated to a seat on Connecticut’s federal trial bench, on July 29 fielded questions about the article, published in the Harvard Blackletter Law Journal.
In the article, the deity cross-examines deceased U.S. Supreme Court justices about their decisions — and condemns them to “spend eternity in hell.” “The conversations don’t turn out too well for the justices,” Sen. Chuck Grassley, R-Iowa, said during Bolden’s confirmation hearing. Oliver Wendell Holmes feels the eternal fire because of the Giles v. Harris decision in 1903 about minority voting rights. Lewis Powell lands in hell for his McClesky v. Kemp decision in 1987 upholding the death penalty. Bolden told Grassley he’d base his decision as a federal judge “solely on applicable law and the facts in evidence before me, not based on my musings in fictional form written when I was a law student.” — Todd Ruger
SENATE PUSHES NSA REFORM
Leading technology and civil liberties organizations are putting their support behind an updated Senate bill to curb the National Security Agency’s wide-ranging surveillance and make its activities more transparent. Microsoft Corp., the Computer and Communications Industry Association (CCIA) and the American Civil Liberties Union are among the organizations that have endorsed a new USA Freedom Act, which Senate Judiciary Committee chairman Patrick Leahy, D-Vt., released on July 29.
The legislation, which has the backing of several Democratic senators and Republican sens. Ted Cruz of Texas, Dean Heller of Nevada and Mike Lee of Utah, makes changes intended to strengthen the USA Freedom Act legislation that Leahy and Rep. Jim Sensenbrenner, R-Wis., introduced last year. That version passed the House in May.
“The Senate bill is a vast improvement over the final House bill, which was unfortunately watered down,” CCIA chief executive officer Edward Black said in a written statement. His group represents Google Inc., Yahoo! Inc. and other major tech companies. Microsoft general counsel Brad Smith said the legislation would bring “meaningful reform to government surveillance.” — Andrew Ramonas
MALE JUSTICES’ ‘BLIND SPOT’
U.S. Supreme Court Justice Ruth Bader Ginsburg made news last week when she told Yahoo News’ Katie Couric that her male colleagues have a “blind spot” when it comes to gender issues. The court’s June 30 Hobby Lobby decision, allowing some employers to deny contraceptive coverage for female employees, was Exhibit A for the 81-year-old justice.
The jab is unlikely to have much impact, said Carrie Severino, a former clerk to Justice Clarence Thomas. “I don’t think a media campaign to paint them as misogynists is going to affect them one way or another,” she said. Elizabeth Wydra of the liberal Constitutional Accountability Center countered that comments like Ginsburg’s could encourage “greater attention to the issues even among the conservative majority.”
Ginsburg herself was optimistic. “I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow,” she told Couric. — Tony Mauro
PAMELA HARRIS CONFIRMED
The Senate last week confirmed Pamela Harris to the U.S. Circuit Court for the Fourth Circuit in a 50-43 vote that reignited debate over the judicial confirmation process. Sen. Ben Cardin, D-Md., praised Harris on the Senate floor before the vote. He said that Harris, a former O’Melveny & Myers appellate partner, has experience as executive director of the Supreme Court Institute at Georgetown University Law Center. “When it comes to Supreme Court litigation, I must tell you, I don’t think Ms. Harris has an equal as far as her qualifications here,” Cardin said.
Republicans opposed Harris, who once described herself as “a profoundly liberal person” who sees the Constitution as “a profoundly progressive document.” Sen. Chuck Grassley, R-Iowa, also accused Democrats of skipping ahead of another circuit court nominee to put Harris on the full court, where a three-judge panel sided with the Obama administration in a dispute over health care subsidies. “So my colleagues should understand that a vote for this nominee is also a solid vote for Obamacare as the cases make their way through that court,” Grassley said. — Todd Ruger
NEW ATTACK ON ACA REBUFFED
A week after a divided panel of the U.S. Court of Appeals for the D.C. Circuit upheld a conservative challenge to the Affordable Care Act, a different panel of the same court on July 29 unanimously rejected another avenue of attack. In Sissel v. U.S. Department of Health and Human Services, the three-judge panel held that the health insurance law did not violate the Constitution’s origination clause, which holds that all bills raising revenue must originate in the House of Representatives.
Matt Sissel, represented by the Pacific Legal Foun­dation, argued that the health insurance legislation — which the Senate inserted in a gutted House bill in 2009 — was a revenue-raising tax bill. He argued that passage of the legislation violated the origination clause because the tax — in the form of the individual requirement to purchase insurance — started in the Senate, not in the House. — Marcia Coyle