quarta-feira, 30 de setembro de 2009

A Corte Suprema americana e a questão do controle de armas

Prof Farlei Martins Ucam, doutorando em direito da puc-rio envia:

The New York Times
October 1, 2009
Supreme Court Takes Case on Reach of Gun Rights
WASHINGTON — The Supreme Court announced on Wednesday that it will decide
whether state and local gun control laws may be challenged under the Second

The court also agreed to hear nine other cases from among those that had
piled up over its summer break, including one concerning the
constitutionality of an antiterrorism law that is a favorite tool of federal

The Second Amendment case, McDonald v. Chicago, No. 08-1521, addresses a
question that was left open last year when the court decided that the Second
Amendment protects an individual right to own firearms rather than a
collective right tied to state militias.

Last year’s decision, District of Columbia v. Heller, concerned only federal
laws and struck down parts of the gun control law in the District of
Columbia, a federal enclave. The court ruled that the law violated the
Second Amendment by barring law-abiding people from keeping guns in their
homes for self-defense.

The new case was brought by residents of Chicago who say their city’s
handgun ban is identical to the one struck down in Heller.

Several Supreme Court decisions, all more than a century old, have said that
the Second Amendment does not apply to the states.

In June, the United States Court of Appeals for the Seventh Circuit, in
Chicago, affirmed the dismissal of the new case, saying it was up to the
Supreme Court to overrule its own precedents if it wished to do so. Chief
Judge Frank H. Easterbrook, writing for a unanimous three-judge panel of the
appeals court, added that it was not certain whether and how the Supreme
Court might apply the Second Amendment to the states.

The Supreme Court has ruled that most but not all of the protections of the
Bill of Rights apply to the states, thanks to the due process clause of the
14th Amendment, one of the post-Civil War amendments. (Exceptions include
the Fifth Amendment’s requirement of indictment by a grand jury and Eighth
Amendment’s ban on excessive bail.)

Most legal scholars expect the court to apply the Second Amendment to the
states. But many of them are urging the court to take an unusual route to
that result. Rather than continuing to rely on the 14th Amendment’s due
process clause, the court should, these scholars say, look to the amendment’s
“privileges or immunities” clause, which says that “no state shall make or
enforce any law which shall abridge the privileges or immunities of citizens
of the United States.”

There is some evidence that the amendment’s writers specifically wanted the
clause to apply to allow freed slaves to have guns to defend themselves.
Scholars on the right and left believe, moreover, that the clause could play
a role in protecting rights not specifically mentioned in the Constitution.

A decision that the Second Amendment applies to the states would not answer
most questions about what kinds of gun laws are vulnerable to challenges
under the Second Amendment. In the Heller decision, Justice Antonin Scalia
seemed to identify quite a few kinds of laws that are presumptively

“Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.”

The antiterrorism law at issue in a second case the court agreed to hear,
Holder v. Humanitarian Law Project, No. 08-1498, makes it a crime to provide
various kinds of “material support” to organizations the government says
have engaged in terrorist activities. The United States Court of Appeals for
the Ninth Circuit, in San Francisco, ruled that the law’s bans on providing
“training,” “service” and some kinds of “expert advice and assistance” were
unconstitutionally vague.

The case was brought by people and organizations who sought to provide
support for what they said were lawful and nonviolent activities of a
Kurdish political party and a Tamil group. The two organizations, the
Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam, have been
designated as foreign terrorist organizations by the State Department.

In its brief asking the Supreme Court to hear the case, the government said
the appeals court’s decision frustrated “a vital part of the nation’s effort
to fight international terrorism.” The brief added that the federal
government had charged approximately 120 defendants with violations of the
material-support law since 2001 and had obtained about 60 convictions under

The law’s challengers filed a separate appeal to the Supreme Court,
objecting to another aspect of the appeals court’s ruling, this one
upholding bans on providing support consisting of “personnel” or of expert
advice derived from scientific or technical knowledge. The Supreme Court
consolidated that appeal, Humanitarian Law Project v. Holder, No. 09-89,
with the government’s appeal.

“The material support law resurrects guilt by association and makes it a
crime for a human rights group in the U.S. to provide human rights
training,” David D. Cole, a lawyer for the challengers, said in a

Robert Chesney, a law professor at the University of Texas, said the case
was “extraordinarily important.” The material-support law not only provides
federal prosecutors with an important tool, he said, but it may also provide
the government with a basis for bringing cases in civilian courts against
prisoners detained at Guantánamo Bay.

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