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Supreme Court has busy last day

June 28, 2010

Supreme Court has busy last day

June 28, 2010

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By DOUG SHERWIN, The Daily Transcript

On the busy, last day of a nine-month term, the U.S. Supreme Court issued rulings on gun ownership, accounting oversight practices and patent law.

In the highest profile case, the justices extended the reach of the constitutional right to bear arms by saying it binds state and local governments as well as federal officials.
In a divided, 5-4 ruling that is likely to invalidate two Chicago-area handgun bans, the justices said an individual right to bear arms was among the fundamental guarantees protected against state interference through a constitutional amendment after the Civil War.

“A provision in the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the federal government and the states,” Justice Samuel Alito wrote for the court.
The decision broadens the sweep of the court’s 2008 ruling interpreting the Constitution’s Second Amendment as protecting the rights of individuals, rather than just those of state-run militias.

Thomas Jefferson School of Law professor Bryan Wildenthal, who wrote an article that was cited five times in Monday’s ruling, said the decision doesn’t affect a majority of states that don’t have strict gun control laws.
“I think the current status quo is largely unaffected by this ruling,” he said. “It clarifies the theoretical, constitutional basis for the right to bear arms, which citizens have taken for granted.”

He added, however, “It didn’t really resolve how strong of a right gun rights are. Both laws (struck down Monday) were Draconian and had banned all private possession of hand guns, even in the home.”

Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas joined Alito in the majority while Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor dissented.

The most interesting aspect of the decision, Wildenthal said, was Thomas’ reliance on the privileges and immunities clause of the Fourteenth Amendment, and the suggestion that the entire Bill of Rights applies to states through the privileges and immunities clause.

Wildenthal’s article was on that very topic.

“It’s a great thrill for any professor to get cited,” he said. “It’s a great honor.”


Also Monday, the high court left intact the centerpiece of the Sarbanes-Oxley Act while ruling that the executive branch should have more authority over members of the Public Company Accounting Oversight Board (PCAOB).

In another 5-4 decision, the justices said the 2002 law passed in response to accounting frauds at Enron and WorldCom didn’t give the president enough say over the board created by the act. The Securities and Exchange Commission must have unfettered power to fire the board’s chairman and members in order for it to adhere to separation of powers provisions in the Constitution, the high court ruled.

San Diego attorney Robert Brownlie, a partner with DLA Piper, said the decision means the board is now closer to the president and therefore subject to the political process.

“One wonders whether it’s good to have accounting decisions and policies determined by the political process,” he said. “I would hope public companies will not be subject to shifts in the political winds, because companies need predictability. Stability in accounting rules is necessary. It helps companies and helps investors.”

In a highly anticipated case among the patent community, the Supreme Court issued a very narrow ruling regarding business method patents.

The justices ruled against two men who sought to patent a system for hedging energy trades, but they left the door open to allowing limited legal protections for registering business methods.

The ruling in Bilski v. Kappos was the first time in 29 years that the court voted on what types of innovations qualify for legal protection. While the decision was unanimous, the justices divided 5-4 in their reasoning, with the majority declining to bar all patents on methods of conducting business.

“One issue they decided is that business methods can be patented,” said Jon Singer, a principal in the San Diego office of Fish & Richardson. “But what the court left for later is really the whole idea of what kinds of things are patentable.”

The appellate court previously had denied Bilski a patent on the basis of a “machine or transformation” test, but the Supreme Court disagreed with that reasoning and overruled the test.

The justices confirmed that inventors can’t patent abstract ideas, natural phenomenon or mathematical equations, but they refused to come up with a specific test.

“It was a cautious opinion,” Singer said. “They worried about the consequences of coming up with a new test.”

Writing for the Supreme Court, Justice Kennedy said the federal circuit’s standard was only a “useful and important clue” and isn’t the sole test that should be used in determining whether a process is eligible for a patent. He did say business methods “raise special problems in terms of vagueness and suspect validity.”

Bloomberg News contributed to this report

The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.