Do you own a handgun? If so, did you yourself purchase it? Did you do so before you turned 21? And, regardless, do you believe a person in the 18 to 20 year-old range has a constitutional right to acquire small weapons that fire bullets?

Congress, in the waning days of President Lyndon Johnson, seems to have thought not. It then passed a law, the Omnibus Crime Control and Safe Streets Act of 1968, that made "unlawful" any sale of a "firearm" that "is other than a shotgun or rifle . . . to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age".

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court held that the second amendment to the United States Constitution confers an individual right to "keep and bear Arms". Does the second amendment trump the federal statute?

No, the Fifth Circuit ruled this week. Using "intermediate" review of the law, the panel concluded that worries about the maturity and judgment of younger persons supported Congress's decision to ban sales of handguns to them. Nat'l Rifle Ass'n of Am. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 11-10959 (5th Cir. Oct. 25, 2012).

The Federal Aviation Act pre-empts state laws that "relate[] to a price, route, or service of an air carrier." The statute thus bars state law price-fixing claims against your American Airlineses, your U.S. Airwayses, your Virgin Americas, and — yes — even your Air Gumbos and your go!s.

But what about our foreign flying friends at the likes of Air France, British Airways, JAL, and Aeroflot? Do they count as "air carrier[s]" for which the FAA pre-empts those pesky indirect purchaser statutes in the Golden State, the Volunteer State, and others?

You would think "sure. They carry people through the air. Why not?"

But you said that before you knew that the FAA often treats "an air carrier" as a creature apart from "a foreign carrier". More often than not, in fact. Does that matter?

The Second Circuit today said no. The pre-emption provision's failure to distinguish between "an air carrier" and "a foreign carrier" made the statute unclear, and Their Honors consulted extra-textual signs of congressional intent and resolved the ambiguity in favor of pre-emption. They thus freed air cargo outfits, which did in fact fix prices, from a lawsuit seeking damages on behalf of people who indirectly overpaid for shipping services. In re Air Cargo Shipping Services Antitrust Litig., No. 11-5464 (2d Cir. Oct. 11, 2012).

The Second Circuit today upheld a district court's order barring class members in a federal class action from suing class counsel in a new state court action for botching the class case by settling for too little. The panel ruled that the "relitigation exception" to the federal Anti-Injunction Act (which, by the way, played a role in the Affordable Care Act cases that the Supreme Court decided in June) gave the district court the power to enjoin the state court fraud and malpractice action. The state court plaintiffs (and erstwhile class members) sought, in effect, to undo the federal judge's findings that class counsel had done a really good job, the panel said. Wyly v. Weiss, No. 10-4785-cv (2d Cir. Oct. 10, 2012).

Yes, that Weiss.

The Third Circuit handles a lot of antitrust cases. It usually gets them right. It did that again last Friday, in ZF Meritor, LLC v. Eaton Corp., No. 11-3301 (3d Cir. Sept. 28, 2012).

The case involved heavy-duty truck transmissions, the kinds that go in semi-trailer rigs and dump and cement trucks. The biggest maker of the devices, Eaton Corporation, bristled when a competitor, Meritor and later ZF Meritor, motored its way onto Eaton's turf. The bristling manifested itself mainly in new long-term contracts with the four firms that bought the transmissions and put them into the trucks that they in turn sold to end-users and others.

A jury found that the contracts amounted to an unlawful restraint of trade under sections 1, 2, and 3 of the Sherman Act. The panel, by a 2-1 vote, upheld the resulting judgment, deeming the contracts close enough to "exclusive dealing" arrangements that courts have classified as actionable under Sherman Act rule of reason analysis. But the court reversed the district court's decision not to allow ZF Meritor to update its damages expert's model to replace the one the court excluded as unreliable.

The dissenting judge disagreed on the ground that the contracts between Eaton and the direct purchasers seemed to him more like a lawful way to compete on price than a restraint on doing business with ZF Meritor.

Blawgletter wrote No More Mr. Nice Patent-Infringer Guy about five years ago. It told about how the Supreme Court and Federal Circuit had lately cleared the way for people to pre-empt a lawsuit for patent infringement by suing for a declaratory judgment first. And just last week we pointed out that someone who avails herself of the pre-emptive strike option doesn't shift the burden of proof.

But please don't think playing the d.j. card involves no risk. The court might conclude that you and your client jumped the gun and dismiss your case. And in the meantime the patent holder very well could sue your client for infringement. That a real dispute now exists won't much matter. It had to have erupted as of the time you sued. Matthews Int'l Corp. v. Biosafe Eng'g, LLC, No. 12-1044, slip op. at 14 (Fed. Cir. Sept. 25, 2012).

The case turned, by the way, on the fact that a device for dissolving human remains could but might not infringe the patents at issue. The panel said:

[T]here is no indication that Matthews' customers have settled upon a fixed protocol for using the Bio CremationTM equipment. Because Matthews' technology is "fluid and indeterminate" rather than "substantially fixed," its dispute with Biosafe lacks the requisite reality to support the exercise of declaratory judgment jurisdiction.

Id. at 12 (citation omitted).

Ghastly stuff. And did they really have to say "fluid and indeterminate" when talking about a gizmo that turns bodies into "a quantity of green-brown tinted liquid . . . and soft, porous white bone remains". Eeeww.

Say your dear client fears that a patent holder can hardly wait to sue YDC for infringement. YDC — a lovely outfit with lots of nice people — asks you what to do. You knit your brows, think deep thoughts, draw on the deep well of experience, conduct thought experiments, and come up with a plan. SUE FIRST for a declaratory judgment of non-infringement, you tell YDC. And so you do.

Did you just mess up? By, for instance, making victory on the merits harder because you caused YDC to take on the main burden of a plaintiff — the burden of proof, which would normally fall on the patent holder that claims infringement?

No. You did not, in this case, do that, although YDC does in fact bear the burden of proof. But suing for a DJ didn't shift the burden. It never does. YDC has the burden in this case because of the reason it claims non-infringement. YDC claims it has a license from the patent holder to practice the invention. If the patent holder had sued for infringement, YDC would have the burden of showing that the license bars the claim. And so YDC keeps that burden when it SUES FIRST for a declaratory judgment.

Simple as pi. Medtronic Inc. v. Boston Scientific Corp., No. 11-1313 (Fed. Cir. Sept. 18, 2012).

You don't see this sort of thing every day.

The CEO of Bridge Capital, John K. Baldwin, lives and works in the Northern Mariana Islands — "one of the two insular area Commonwealths of the United States of America, the other being Puerto Rico", per Wikipedia, Blawgletter's main source for facts whose accuracy doesn't matter.

The feds thought Baldwin had short-paid his income tax by around $5 million. But he remitted the amount and then sued to Get It Back.

The U.S. district judge in Saipan, the main island in the Marianas, required the U.S. to send a person with full authority to settle to an initial settlement conference, citing the court's local rule on the subject. Pointing to the initialness of the conference and the hardship of sending the Assistant Attorney General for the Tax Division of the U.S. Department of Justice to it, the government resisted, even to the extent of asking the Ninth Circuit to grant mandamus relief blocking the local rule.

The Ninth Circuit granted the request. Even if the AAG flew to Saipan, the panel noted, she would still need the okay of the Congressional Joint Committee on Taxation. Although it upheld the power of district courts to direct that people with full authority to settle attend mediations and other settlement efforts, the court ruled that the district court abused its discretion in this case. United States v. United States District Court for the N. Mariana Islands, No. 11-72940 (9th Cir. Sept. 12, 2012).

Fun facts:

The district court ordered the parties to go to Coeur d'Alene, Idaho, for the conference, so that they could confer with Senior District Judge Alex Munson, who spent two decades as a district judge in the Marianas court before retiring to the Gem State.

A visiting judge, an Iowan who seems to have inherited the case from the regular Chief Judge of the Marianas, last year granted Baldwin's request for a jury trial. His opinion denying a motion for rehearing quoted James Otis, Jr., Gerald Barzan, Charles S. May, Thomas Jefferson, and Bulfinch's Mythology.

Captain Kirk goes dramatic.

If you travel for work, you have likely booked hotel/motel rooms online.

You should therefore know, or at least suspect, that outfits like Hyatt, Hilton, Marriott, Motel 6, Red Roof Inns, Four Seasons, Le Meridien, Best Western, Best Western+, Waldorf-Astoria, Hotel Fredonia, Comfort Inns, The Cloister, Holiday Inn, and other hoteliers/moteliers add local taxes to your nightly/weekly/monthly rate.

What about non-hotel and non-motel firms that buy and sell hotel/motel stays to the General Public — your hotels.coms, your expedias, your travelocitys, and your kayak.coms, to name a few? Do they pay the villages, towns, and cities the lodging taxes that states often allow local governments to assess and collect?

Yes and no. Per a Sixth Circuit ruling that came out today, they fork over taxes on the "wholesale" prices they pay the hoteliers/moteliers for the rooms but not on the mark-up they charge their customers. 

The case turned on the delta between wholesale and retail. As the panel noted, "Ohio allows municipalities and townships to levy excise taxes on 'transactions by which lodging by a hotel is or is to be furnished to transient guests.'" City of Columbus v. Hotels.com, L.P., No. 10-4531, slip op. at 3 (6th Cir. Sept. 10, 2012). But the court ruled that the Ohio law doesn't apply to Priceline.com and the like. It instead covers "vendors", "operators", and "hotels" — all of which are pretty much what you and I think of as the hoteliers/moteliers — the panel said.

What does the outcome mean for you? Blawgletter suspects it will give a small boost to the buying of rooms without contact with the hotelier/motelier. Because you'll pay a slightly smaller tax if you book your stay that way.

But what if the online folks hike their rates to absorb the tiny tax savings? Or if California, say, has a more town-tax-friendly statute? We'll just have to see.

A law prof at a small school in the Golden State opined that the jury in Apple v. Samsung went Way Too Far when on August 24 it awarded Apple almost $1.05 billion after finding that Samsung copied — very much on purpose — Apple's smartphone designs.

His analysis? That an "average smartphone may arguably infringe as many as 250,000 patents, not to mention myriad copyrights and other design-related intellectual property."

His point? That "if the owners of all the 250,000 inventions that might be present in Samsung smartphones were awarded damages at the same level as Apple, Samsung would have to charge a ludicrous $2 million per phone just to break even."

His proof that the smartphone you hold in your hand right now "may arguably infringe as many as 250,000 patents"?

Okay, he offers none. But you have to believe that if he switched "may arguably infringe" to "does infringe", the number would have dropped. A lot.

In fact, when someone in Blawgletter's firm says "arguably" anything, the rest of us know that the person saying it will almost certainly lose the argument. Arguable means improbable. Or worse.

Which may explain why Samsung owes Apple more than $1 billion.