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September 30, 2009

SCOTUS cert grants: Guns, sex offenders, and sentencing factors ... oh my!

Reviewing (thanks to SCOTUSblog) the details of the ten cert grants announced by the Supreme Court this morning (basics here and here), I cannot help but feel a bit like a legal Dorothy heading through a jurisprudence thicket on the ways to learn what the Wizards of SCOTUS will have to say on some of the hottest legal topics for sentencing fans.  Specifically, these there grants as described at SCOTUSblog are huge news for anyone involved in modern sentencing law and policy issues:

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Docket: 08-1521
Title: McDonald, et al.  v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Issue:Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

Of course, the Second Amendment incorporation issue is the biggest story with the biggest potential jurisprudential impact.  But I think the outcome of that case is almost a given, as I would be shocked to see the Justices decide Heller only applies to the federal government.  The other cases seem more in play, and how the Justices approach and decide these cases could make them both sleepers for sentencing fans to watch closely.

I will have a lot more to say about both Carr and McDonald in subsequent posts, and I am already looking forward to the discussions and debate both cases are likely to generate in the months ahead.

September 30, 2009 at 11:21 AM | Permalink


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It will be ironic when Sotomayor joins the majority to incorporate the Second Amendment. Those who opposed her nomination can eat their words.

Posted by: Res ipsa | Sep 30, 2009 1:16:34 PM

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Posted by: Jean | Jan 11, 2010 12:21:17 PM

Ironic sounding anyway.

Posted by: machine guns for sale | Dec 8, 2010 1:47:55 AM

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