A Minor DACA Surprise, More On Guns (Including A Catty Dissent) And The Latest Opinions

Well, we thought that on Tuesday (February 20) we would see the order from the Court on the government's petition for certiorari before judgment in the DACA case out of the Ninth Circuit.  (You can see my posts about cert before judgment in the DACA case here and a brief follow-up here).  It came as a minor surprise that we did not, mostly because the Court granted the government's request for expedited briefing.  Most commentators think it will be discussed again at the Friday (February 23) conference, which I do think is the most likely scenario, although there is the possibility that a decision has already been made and they are waiting on dissents before releasing it.

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My last post was about the Second Amendment and what the current law is on the subject of guns and guns ownership.  In the February 20 order list, two gun law related cert petitions were denied.  One of these, Sylvester, et al. v. Becerra, Attorney General of California, No. 17-342, which involved California's 10-day waiting period for gun purchases, sparked a 14-page dissent from the denial of cert written by Justice Thomas.  There are a number of terms I could use for the tone and content of the dissent, but I'll pick "catty" ("confrontational" would do as well).  Thomas would have heard the case, arguing that the appeals court ruling "is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right" but also taking a swipe at (at least) six of his colleagues (remember, it takes four to grant cert) by writing "If this case involved one of the Court’s more favored  rights, I sincerely doubt we would have denied certiorari. I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwithstanding a State’s purported interest in creating a “cooling off ” period." Meow.  This spawned a thread on Twitter started by Prof. Carissa Byrne Hessick asking readers to come up with a list of rights that the Supreme Court treated as "cavalierly" as Thomas claimed they treated the Second Amendment.  It is well worth the read (clicking on the link above should get you there even if you are not a Twitter user), but the First, Fourth, Sixth, and Eighth Amendments all showed up along with voting rights.  Let's just say Justice Thomas' dissent did not fare well, at least in some circles.

Of course, two other Justices might have agreed with the dissent but were not willing to join it or file their own.  But this brings up a point that Bloomberg reporter Greg Stohr made in covering this story. "The Supreme Court has repeatedly refused to expand or reinforce constitutional gun rights in recent years. In November, the court left intact Maryland’s prohibition on semiautomatic assault weapons and Florida’s ban on openly carrying handguns in public", noting that the Court has not taken a Second Amendment case since 2010 (McDonald).  Is the Court taking the dicta in Heller seriously?  Stay tuned.

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February 21 was opinion day and the Court handed down four of them.  (They handed down two on February 20, but those were (1) a judgment in an original jurisdiction case, in which they accept the Special Master's report and enter a judgment and decree) but which is counted as an opinion and (2) a summary reversal (a reversal and remand without briefing or oral argument).  None of them are any of the "big cases" I have been highlighting during the fall of 2017.  Of the four cases handed down today, the one that I will focus on briefly is Class v. United States, which just happens to be another gun case (although the Second Amendment was not involved).  

The issue was this: if you plead guilty can you challenge the constitutionality of the statute you pleaded guilty to violating on appeal?  Easy, you say: of course not.  You enter a plea of guilty, that ends the matter.  Well, it is not so easy.  Plea agreements are not boilerplate (that is, they don't all read the same) and what you agree to can vary. Also, the trial judge has to walk the defendant through the plea before entering it and closing the case.  In this case, Class was charged with a weapons violation, having "readily accessible" firearms on the grounds of the U.S. Capital.  Neither his written plea agreement nor his colloquy (question and answer with the judge) was clear about what he was waiving when he entered the plea.  He had always asserted that the statute he was charged under was unconstitutional under the Second Amendment.  He pleaded guilty to avoid an additional charge.  He appealed.  The District of Columbia Circuit held that he was stuck: he pleads guilty, the end.

But the Supreme Court, 6-3, in an opinion by Justice Breyer, held that the entry of a plea of guilty, in and of itself, cannot bar an appeal of the constitutionality of the underlying statute. The Court held that Class did not either directly or implicitly waived his constitutional claims by pleading guilty, and relied on Supreme Court precedent that stated that when the underlying claim is that the government has no constitutional power to convict or prosecute, a guilty plea cannot waive the right to challenge the statute. 

Pro tip: read the terms of your guilty plea.

Next: Monday's orders.