In Justice v. Town of Cicero, 577 F.3d 768 (7th Cir., Aug. 14, 2009), Judge Wood upheld the handgun registration ordinance of Cicero, Illinois. The opinion accurately explained that under the then-current law of the Circuit, the Second Amendment was not incorporated in the Fourteenth. Surprisingly, Judge Wood then asserted that even if the Second Amendment were incorporated, the registration requirement is constitutional.
Judge Wood quoted Heller‘s paragraph stating that the Second Amendment right is not unlimited. As examples, the Heller Court listed prohibitions on carrying concealed weapons, bans on gun possession by convicted felons or the mentally, bans on guns in “sensitive places,” and “ laws imposing conditions and qualifications on the commercial sale of arms.” A footnote explained: “26. We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”
The Cicero gun registration ordinance fits in none of the Heller opinion’s specific list of permissible gun controls. Pursuant to footnote 26, the proper course for the Wood panel would be to carefully examine whether the registration law were constitutionally permissible. We know from all the Supreme Court’s constitutional jurisprudence that some restrictions on rights are unconstitutional, even when the restriction is less than a prohibition. For example, a law requiring a person who wishes to receive communist political propaganda by mail to register with the Post Office is a violation of the First Amendment. Lamont v. Postmaster General (1965). Likewise, a law requiring married women to notify their husbands about abortions is unconstitutional, even though the notification mandate does not ban abortion. Planned Parenthood v. Casey (1992). Regarding abortion (which, unlike the right to arms, is not enumerated in the Constitution), there would obviously be a serious constitutional question if a local government compiled a list of every woman who had an abortion in the jurisdiction.
Judge Wood, however, chose not to examine the registration requirement carefully. Instead, after quoting the above paragaph from Heller, she blithely declared: “Thus, even if we are wrong about incorporation, the Cicero ordinance, which leaves law-abiding citizens free to possess guns, appears to be consistent with the ruling in Heller.” Her apparent rule seems to be that every restriction short of prohibition is acceptable; the Wood rule is contrary to the Court’s entire jurisprudence on enumerated and unenumerated rights.
Although Heller did not articulate a formal standard of review, Heller at least stands for the proposition that the Second Amendment right is protected by more than the mere rational basis test. Accordingly, Judge Wood should have conducted some inquiry as to what interest the Cicero government had in the registration ordinance; simply compiling a list of people who exercise their constitutional rights could hardly be a legitimate government interest, let alone an important one. Second, if she found a constitutionally-sufficient government interest, then she should have examined whether the registration requirement were sufficiently connected to that interest.
Of course conducting the above inquiry is made more difficult by the absence of Supreme Court guidance about whether to use strict scrutiny, deferential strict scrutiny, intermediate scrutiny, “exceedingly persuasive justification” intermediate scrutiny, or some other test. Thus, Judge Wood would have been fully justified in deciding the case purely on incorporation, and leaving registration for another day, should the Supreme Court choose to incorporate the Second Amendment.
Instead, Judge Wood chose to preemptively rule on the constitutionality of gun registration. Her ruling was bereft of the analysis that is necessary for judicial analysis of restrictions on any enumerated right. It is safe to say that Judge Wood has ample legal skills to conduct carefully-reasoned legal analysis when she chooses to do so. Accordingly, it is plausible to infer from her unreasoned opinion a disregard for Second Amendment rights.
cboldt says:
– I’m surprised the nutjob in NJ didn’t put Bauer and Tinder on his hit list.
April 9, 2010, 6:56 pm– The nutjob that was an FBI honeypot? That nutjob?
Mikee says:
So a Contitutionally-unenumerated right to privacy results in emanations and penumbras from the Constitution that allows third trimester partial birth abortions, and restricts laws against sodomy and makes birth control a subject for strict scrutiny of legislation limiting its availability. I understand that consensual sex with a willing partner can result in undesired consequences, and self-protection against those consequences results in condoms, alternate sexual practices, and medical intervention to stop pregnancy.
But a Constitutionally-enumerated right to keep and bear arms, recently ruled by the Supreme Court to be in the Constitution specifically because self defense uses of weapons are a fundamental human right, can willy-nilly be infringed without reason or even argument by a judge. I would argue that self defense against nonconsensual violence coming from another person deserves legislative and judicial scrutiny at least as strict as that for condom usage.
April 9, 2010, 6:57 pmSteve says:
Judge Wood’s analysis was EXACTLY as searching as the analysis Scalia conducted of the “presumptively lawful regulatory measures” listed in the Heller dicta. Yet Judge Wood’s lack of reasoned discussion apparently means that she has a disregard for the Constitution, while Justice Scalia remains a great hero of the Second Amendment. Gee, I wonder what could account for the difference.
April 9, 2010, 7:03 pmBart says:
I agree that “Judge Wood should have conducted some inquiry as to what interest the Cicero government had in the registration ordinance” but disagree, based on the description of the law set forth in the opinion, that Cicero’s law “simply compil[ed] a list of people who exercise their constitutional rights….”
The law, as described, appears to require the “registration of firearms.” There is a decent argument (whether or not sufficiently strong to withstand scrutiny being a different matter) for requiring firearms to be registered. If firearms are registered, the government may use the registry to help it determine who used a firearm involved in a crime or who acted in a way so as to allow that firearm to come into the possession of someone who used it in a crime. It also may help the government determine, if a firearm is in the possession or someone who may not legally bear arms (e.g., per Heller, “convicted felons or the mentally ill”), whether some other person bears some legal responsibility for that person obtaining the gun.
Even if Judge Wood should either have not gotten into the issue or should have engaged in some analysis (I think you are right on both counts), it is important that you describe the law accurately. If you (apparently inaccurately) describe the law simply as one that creates a “list” of persons who own guns, her opinion seems more like a disregard of Second Amendment rights.
By the way, you did what you accuse her of doing. You just flatly say, without analysis, that “simply compiling a list of people who exercise their constitutional rights could hardly be a legitimate government interest, let alone an important one.”
You may be right (I can’t think of a reasons for compiling such a list) – but you just sorta say so. Using the terms “could hardly be” and “let alone” isn’t really an argument.
April 9, 2010, 7:05 pmOpenVolokh says:
David Kopel,
What does it mean to plausible infer? Does this mean that you would assign a subjective probability greater than 90% that Judge Wood hates the Second Amendment? Or is hate too strong a word? Is your claim that you plausible infer that she strongly dislikes the Second Amendment? Just dislikes it? Has slight negative feelings towards it? Or maybe you just mean she isn’t sufficiently enthusiastic about it compared to yourself.
It is of course quite common for judges to write in judicial opinions that I am ruling against you because of reason X, but even if X wasn’t true, I would rule against you for reason Y.
It sounds to me like you simple disagree with her analysis regarding an area where you admit that there was no precedent. As you note, even the standard of scrutiny in this area is uncertain. I thus do not understand how you can say that Judge Wood was “wrong” in her conclusion.
Oh wait, that isn’t your conclusion. Your conclusion is that she “preemptively decided” the issue without conducting a full analysis. But, has it occurred to you that the reason that Judge Wood did not give a fuller analysis could be precisely because she knew that such analysis would be mere dicta? How much time do you think judges should spend on dicta?
As noted, the pattern “I am ruling against you because X is true, but even if X was not true, I would rule against you because of Y” is a very very common pattern in judicial decisions. Even though the point about Y is almost always dicta. Maybe your issue is really with dicta and the general current practice of sometimes providing it in judicial decisions. But it doesn’t really appear that you have a legitimate issue with Judge Wood, unless you think following long established judicial practice that you idiosyncratically disagree with is disqualifying.
Of course, we know why you posted this. You think that Judge Wood might be nominated to the Supreme Court. Based on this sort of “preemptive attack” by you (assuming you are representative of conservative sentiment), I predict there is likely to be an ugly confirmation battle in our future.
I personally agree that President Obama shouldn’t nominate Judge Wood for the Supreme Court. I much prefer Professor Liu. Basically, my metric is that the more that Ed Whelan rants about and against a nominee over at Bench Memos, the better that nominee is.
We are about to see Orin’s law in action. I think it will be especially fun to watch Republicans to try to get enough support to engage in a filibuster based on a bizarre and disingenuous interpretation of the phrase “extraordinary circumstances,” where extraordinary circumstances include any nominee that wouldn’t be the first choice of a Republican President. Not that Democrats are any better. That is why it is known as Orin’s law.
Here is my prediction concerning the future Republican position: Yeah, we think the filibuster of judicial nominees is unconstitutional. But we are going to violate the Constitution now because we are worried that if we don’t violate the Constitution now when we are in the minority, Democrats will violate the Constitution later when they are in the minority. And why should the Democrats have all the fun!
Oh how very exciting. Let the next round of hypocritical mudslinging begin. It is sort of like kabuki theater. You know exactly what is going to happen. Everyone will play their preordained role. And we will like it and politely clap at the end.
Or maybe I am being too cynical.
April 9, 2010, 7:07 pmBenP says:
Did Kopel just disappear the first three comments in the thread merely because they pointed out that Bauer and Tinder, both republican nominees also agreed with Wood on this?
[DK: No. I got rid of one comment because it tried to tie some nut in New Jersey to the topic. FWIW, I couldn't care less who nominated a judge. Sotomayor was nominated for the district court by GHWB (as part of deal with Pat Moynihan). Bauer wrote the Quilici opinion, and was also on the McDonald v. Chicago. If he were nominated for the S. Ct., I would strongly oppose him.]
April 9, 2010, 7:12 pmBrett Bellmore says:
The moment Wood is confirmed to the Supreme court, she will be entitled to have her unconsidered judgment conflict with Scalia’s unconsidered judgment when he writes the opinion of the Court. Until then, his is supposed to triumph, be it not the slightest bit better grounded.
And I’d never call Scalia a great hero of the 2nd amendment. His Heller opinion was pathetic hackery, the only thing I can say in it’s favor is that it wasn’t as bad as what the minority wanted to perpetrate.
April 9, 2010, 7:13 pmAnonsters says:
Yep.
April 9, 2010, 7:13 pmKazinski says:
Of course there is a big difference between a presumption (i.e. speculation) of issues that are not yet ripe for adjudication, and explicitly upholding a restriction that is being adjudicated.
I am not overjoyed by Scalia’s Heller dicta, but nobody would be confused by reading the opinion that the Supreme court was actually ruling and setting Supreme Court precedents on those issues. What Scalia was doing was ruling narrowly and not overturning all gun regulation in a decision that was not addressing those issues. If SCOTUS determines that the 2nd amendment is incorporated and that the standard for regulation is strict scrutiny then many of those “presumptively lawful regulatory measures” could be struck down. And nothing Scalia said forecloses that result.
April 9, 2010, 7:16 pmBenP says:
Who are you and what have you done with the real Bart?
April 9, 2010, 7:16 pmneimoller says:
Dear Dave Kopel, I am deeply disappointed by your lack of a post about Elena Kagan. Do I wait in vain?
April 9, 2010, 7:20 pmtroll_dc2 says:
Why did DK delete comments that pointed out that Judge Wood could not have written a majority opinion if Judges Bauer and Tinder, both appointees of Republican presidents at both the district and circuit levels, had not agreed with her?
April 9, 2010, 7:21 pmruuffles says:
Wonder if he’ll disappear this comment because of the link to the actual opinion.
http://www.potowmack.org/07-3990.pdf
April 9, 2010, 7:23 pmChris Travers says:
So from this summary, am I to conclude that Justice has not prevailed?
April 9, 2010, 7:25 pmLawGuy5000 says:
I would like to expand upon what some other commentators mentioned. Not only are Bauer and Tinder Republican appointees, Judge Tinder is the second most conservative member of the court behind Judge Sykes (also a W. appointee), and definitely more conservative than Judge Easterbrook. Judge Bauer is a former U.S. Attorney in the Northern District of Illinois. Can we safely infer the same about them from Judge Wood’s concurrence-less, dissent-less opinion? If it was off the mark, shouldn’t we expect a concurrence from them?
This is not to say Judge Wood is pro-gun. I am sure she would not have been on the side of the majority in Heller (though probably less hostile to it than Judge Posner would have been). And I will freely admit that I am a huge supporter of Judge Wood–she has the intellect to match Posner and Easterbrook and would be a real force on the Supreme Court.
She is a center-left judge who follows the law, knows the record cold, and has the utmost respect from her colleagues, especially Judge Easterbrook. The attempt to paint her out as some kind of liberal-radical judge is dishonest.
April 9, 2010, 7:26 pmArthur Kirkland says:
Democrats enabled two reliably, nearly dogmatic conservative nominees — Alito and Roberts — to reach a Supreme Court already tilted substantially in Republicans’ favor.
If that isn’t better than what we can reasonably expect of the current Senate Republicans, I am about to be pleasantly surprised.
April 9, 2010, 7:28 pmAnonsters says:
LOL. This is a great case to hang your 2nd Amendment hat on. A crank plaintiff.
April 9, 2010, 7:30 pmShelbyC says:
Well, at least one of the posts refered to a “nutjob”. I’m not sure who was being called a nutjob, but that may have made the post uncivil enough for deletion.
April 9, 2010, 7:32 pmArthur Kirkland says:
I am not sure those doing so are dishonest. Most
April 9, 2010, 7:32 pmgun nutsreflexive gun extremists, in my experience, are true believers.ruuffles says:
So more Bork and less Scalia? Did this case generate any dissents from en banc?
April 9, 2010, 7:34 pmneimoller says:
And Alito replaced O’Connor,thereby decisively shifting the court’s balance.
April 9, 2010, 7:36 pmOpenVolokh says:
Arthur Kirkland,
Shhhh….
You are right of course. But I am trying to be rhetorically balanced here. People don’t like to hear that one side is worse than the other, even if it is true. They like to hear that both sides are bad. It fits more into our cynical postmodern American worldview.
If I say only one side does it or that one side does it more than the other, then I am going to have to engage in a nonsensical side argument about the extent that Democrats do it too. And I am not interested in defending Democrats. Especially since there are plenty of Democrats who don’t deserve to be defended. But more importantly, because that derails the whole discussion
The point is that this is all kabuki theater. I think that all people, whether they are Democrats or Republicans or Independents can see that.
David Kopel is part of the opening act. I think it is ironic that he is making a preemptive attack on a judge where his complaint is that she made a preemptive ruling. (When in fact all she did was issue preemptive dicta.)
April 9, 2010, 7:39 pmRyan Waxx says:
Which makes her downright conservative compared to four of the nine SC Judges in Heller, who were quite comfortable with total prohibition as a reasonable restriction, contrary to the plain text of the document they falsely swore to uphold.
Most conservative Supreme Court EVER!
April 9, 2010, 7:39 pmcboldt says:
– while Justice Scalia remains a great hero of the Second Amendment. –
April 9, 2010, 7:40 pmNot so much. Only relatively speaking.
BenP says:
I presumed it was Turner the guy who was put on trial for calling out for people to kill Posner and Easterbrook for their ruling in NRA v Chicago.
Although, interestingly, according to the link above Bauer testified as well, so he may well have been among those threatened.
April 9, 2010, 7:41 pmcboldt says:
– I’m not sure who was being called a nutjob –
April 9, 2010, 7:42 pmHal Turner. An FBI-driven honeypot by and for right wingnut cranks.
ShelbyC says:
Gotch. Hard to argue that that’s uncivil, I guess.
But the OP criticizes Wood, not for the outcome, but for the lack of reasoning. Is the suggestion that the other guys should have supplied the reasoning in a concurrence?
April 9, 2010, 7:48 pmOpenVolokh says:
LawGuy5000,
Judge Diane Wood is good. But she is 59. Professor Goodwin Liu, in contrast, is only 39.
And while Ed Whelan really hates Judge Wood, I think he hates Professor Liu even more.
Therefore, Professor Goodwin Liu is the better pick.
Beat that analysis!
April 9, 2010, 7:50 pmGV says:
Actually, a whole lot of “nobodies” have reached just that conclusion. A number of courts have determined that the Heller dicta forecloses challenges to felon in possession laws.
April 9, 2010, 7:55 pmruuffles says:
Bauer was the third judge with Easterbook and Posner on the unanimous panel.
April 9, 2010, 7:57 pmcboldt says:
– A number of courts have determined that the Heller dicta forecloses challenges to felon in possession laws. –
April 9, 2010, 7:58 pmThe Miller error has been reinforced as well, by subsequent Circuit Court decision (Hamblen).
ShelbyC says:
If he picks Liu, we can refer to his opinions as “Goodwin’s Law”.
April 9, 2010, 8:01 pmOpenVolokh says:
That is an even more brilliant analysis! I think we know who the nominee will be now. =)
April 9, 2010, 8:12 pmAnonsters says:
OpenVolokh = Goodwin Liu.
April 9, 2010, 8:14 pmjuris imprudent says:
Stephen sez while Justice Scalia remains a great hero of the Second Amendment.
According to who? Or do you just like to erect strawmen as a hobby?
AK sez Democrats enabled two reliably, nearly dogmatic conservative nominees — Alito and Roberts — to reach a Supreme Court already tilted substantially in Republicans’ favor.
Yes, it is always ONLY a matter of Team Red vs. Team Blue. Thank you for your penetrating insight.
April 9, 2010, 8:15 pmSteve says:
The moment Wood is confirmed to the Supreme court, she will be entitled to have her unconsidered judgment conflict with Scalia’s unconsidered judgment when he writes the opinion of the Court. Until then, his is supposed to triumph, be it not the slightest bit better grounded.
I’m sure she’s not qualified to shine his shoes, but Judge Wood and Justice Scalia aren’t even in disagreement here. Both of them did the exact same thing: they wrote dicta suggesting, without any analysis whatsoever, that various gun restrictions are probably okay.
If SCOTUS determines that the 2nd amendment is incorporated and that the standard for regulation is strict scrutiny then many of those “presumptively lawful regulatory measures” could be struck down. And nothing Scalia said forecloses that result.
Sure, it doesn’t “foreclose” the result, but in the real world it more or less predetermines the issue. It will require a bold judge indeed to overturn one of the restrictions Scalia identified, after he suggested they were okay without a smidge of analysis. And again staying in the real world, most lower court judges are going to take dicta like Scalia’s as a signal that “of course these restrictions are valid.”
As a fan of the Second Amendment, I was disappointed in Justice Scalia’s absurdly political dicta – not because I’m convinced felon in possession laws are unconstitutional, but because the right to self-defense is a human right in my view and I don’t like to see it blithely brushed aside. But I don’t see rants from people like Dave Kopel about Scalia’s dicta, even as they race within 5 minutes of the first mention of a potential Democratic nominee’s name to find some basis to claim that they are an implacable foe of the Second Amendment. It’s pure hackery.
April 9, 2010, 8:19 pmShelbyC says:
It’s kinda funny how, when testifying before Congress, they claim they can’t comment on questions that might come before the court so as to be impartial if those matters do come up. And yet, they have no problem issuing dicta like Scalia did.
April 9, 2010, 8:19 pmOrder of the Coif says:
Didn’t Professor Brannon Denning call the lower federal court’s mishandling of Miller intellectual dishonesty?
The Judges come from the same elitist pool today, I don’t see them treating Heller any differently unless the Supreme Court does less pussy-footing and uses stronger, unambiguous language in McDonald.
April 9, 2010, 8:20 pmEMB says:
What if the law not only required firearm owners to register their guns, but also to fire them so that the markings on the bullets could be placed into a computer database? It seems like this (though much more intrusive to gun owners) would be of considerable use to law enforcement in identifying the owner of a firearm used in a crime.
Would that likely be constitutional?
April 9, 2010, 8:25 pmSteve says:
According to who? Or do you just like to erect strawmen as a hobby?
It was rather obvious hyperbole, I thought. But perhaps you could show me where Dave Kopel has said boo about Scalia’s Heller dicta, which are objectionable for the exact same reason as Judge Wood’s dicta. Principled conservatives like Harvie Wilkinson have had no problem pointing out the obvious problem with what Scalia wrote.
April 9, 2010, 8:26 pmShelbyC says:
Maybe the fact that Wood actually had the question before her?
April 9, 2010, 8:28 pmOpenVolokh says:
Hmm… well, maybe this would be a good point. If judges hadn’t been putting dicta into their decisions all along. For the curious, can you find any dicta in Marbury v. Madison?
But, even if this were a good point, it would be a criticism of judicial practice in general, and not Judge Wood in particular.
Wait. Never mind. This is TOTALLY disqualifying. Down with Judge Wood!
Does anyone want to join me in burning Judge Wood in effigy?
1.) Professor Goodwin Liu has never written a judicial decision with dicta in it!
2.) Rulings by future Justice Liu can be referred to as Goodwin’s Law.
3.) Ed Whelan hates Professor Goodwin Liu more than he hates Judge Diane Wood.
4.) Professor Liu is only 39 compared to 59.
Professor Liu wins! The reasons just keep piling up.
April 9, 2010, 8:50 pmDilan Esper says:
It’s worth noting that the remedy ordered by Justice Scalia and the 5-justice majority in Heller was– wait for it–
to allow Mr. Heller to register his gun.
April 9, 2010, 8:52 pmShelbyC says:
Wait, I’m not sure Wood’s finding is dicta. She’s upholding the law on two grounds, incorporation and the fact that the conduct isn’t protected by the second amendment. Just because she had already made a finding on one ground doesn’t render the other one dicta, does it?
April 9, 2010, 9:01 pmShelbyC says:
Well, if Heller was being prosecuted for violating the DC law, and the court made the same legal finding, wouldn’t the appropriate remedy be to dismiss the procecution?
April 9, 2010, 9:10 pmjuris imprudent says:
Steve sez It was rather obvious hyperbole, I thought. But perhaps you could show me where Dave Kopel has said boo about Scalia’s Heller dicta
Ah, I see. So if DK doesn’t lay into Scalia (which he may well have – did you dig through the archives to check?) then that makes Scalia a “hero of the Second Amendment”? I should leave you and Arthur K. to sally forth against each others windmills.
I have plenty to object about any number of Scalia’s opinions – I certainly consider him no friend of actual liberty. He and Stevens only disagree on the ends to which state power should be put, not on the fundamental nature of that power.
April 9, 2010, 9:20 pmDilan Esper says:
Well, if Heller was being prosecuted for violating the DC law, and the court made the same legal finding, wouldn’t the appropriate remedy be to dismiss the procecution?
Sure, but the reason I think it’s notable is because not only does nothing in Heller suggest that gun registration is unconstitutional (even though it isn’t listed among the traditional restrictions that are presumptively constitutional), but the Court at least implicitly approved of gun registration by ordering the District to allow him to register rather than simply ordering that he could possess the weapon in his home without registering.
April 9, 2010, 9:26 pmOpenVolokh says:
ShelbyC,
It is definitely dicta. Anything that a judge says that is not necessary to decide the case is dicta. Also that it is dicta would tend to explain while the analysis is so cursory.
If the Second Amendment isn’t incorporated against the states, then that would dispose of the Second Amendment claim. Whether or not the registration requirement would be constitutional in a then-hypothetical world where the Second Amendment was incorporated would be totally unnecessary for the decision and hence pure dicta.
I think what your saying is that if either X or Y is true, then the claim loses. Why is one dicta and the other not? The answer is because in this case X logically precedes Y.
That is X is independent, while Y is dependent.
X = Is the 2nd Amendment incorporated against the states?
Y = Does the state practice in question violate the 2nd Amendment? (Note the implicit assumption that the 2nd Amendment is relevant; i.e. that it is incorporated and enforceable against the state.)
As you can see, Y depends on X, but X does not depend on Y. If the answer to X is no, then Y not only doesn’t matter, it is purely hypothetical. In contrast, X is a foundational question that can never be rendered hypothetical. Either the Second Amendment is incorporated against the states or it isn’t. The answer to Y could never render this a merely hypothetical question, since before we can even answer Y, we have to answer X first.
That Judge Wood answered this question anyway might be criticized on the grounds that it is mere dicta. But judges include dicta in their decisions all the time and this practice is hardly particular to her. In general, dicta does not have binding authority, as there is no longer a case or controversy when the question has already been disposed of on more foundational grounds. Of course, other courts are free to look at dicta much as they look at a law review as a source of possibly persuasive argument, but they are not bound by it.
Of course, in an era where lawyers sometimes try to pull fast ones with quotes that they want to sound like binding authority but are in fact mere dicta, sometimes a statement that is mere dicta is not pointed out to a court (you can also blame lazy lawyers who do not review the cases cited by the other side with enough diligence) and it is followed by that court as if it were binding authority. Now, of course, it is sometimes hard to tell if a court is making this error or not. Are they following the dicta because they find it persuasive, or because they mistakenly believe they are bound? It is not always clear based on how the lower court decision is written whether this error is being made or not.
April 9, 2010, 9:48 pmR Ellis says:
The Second Amendment connects the right to bear arms with the necessity of having a well regulated militia. In that context, wouldn’t the registration of firearms by the local authorities be expected, perhaps even mandated, so that their possessors could be contacted in case of emergency?
April 9, 2010, 9:51 pmLarryA says:
Canada has registered handguns for the last seventy years or so. When the parliament expanded the law to require registration of long guns the media asked for some stories about crimes solved with the handgun registration system. There weren’t any.
The few U.S. states that require registration have had the same results.
A felon would have to admit to possessing a firearm to register one. That would violate his right not to incriminate himself. Therefore a felon cannot be prosecuted for possession of an unregistered firearm. Haynes v. United States, 1968. Presumably a similar case based on mental illness would be a slam-dunk.
Actually, it would hamstring law enforcement. The present ballistic database is composed mainly of firearms that have been used in crime, a tiny minority of all firearms. Today, when police find a bullet they run it through the system. The computer search may result in a dozen or so possible matches. These have to be evaluated by eye. Adding all the guns owned by 80,000,000 gunowners, which are almost never used in crime, would swamp the system, resulting in hundreds or thousands of possible matches, making it impossible to run traces in any timely matter.
April 9, 2010, 9:54 pmDavid M. Nieporent says:
And Ernesto Miranda was a repeat rapist. What does the identity of the plaintiff have to do with the quality of the judicial reasoning?
April 9, 2010, 9:58 pmDilan Esper says:
Canada has registered handguns for the last seventy years or so. When the parliament expanded the law to require registration of long guns the media asked for some stories about crimes solved with the handgun registration system. There weren’t any. The few U.S. states that require registration have had the same results.
I actually did a search of California caselaw on Westlaw and found that there were a whole bunch of appellate opinions where the registration of the gun was reflected in the statement of facts as having been admitted into evidence. And that was just in California. I posted the results in a gun rights thread when I did the research.
Among the various claims made about firearms by both sides, the claim that gun registrations cannot be used to solve crimes is one of the most obviously wrong ones.
April 9, 2010, 10:04 pmAlan says:
Well, do we know whether Heller asked for any relief more ambitious than what the Court granted?
April 9, 2010, 10:04 pmShelbyC says:
Disagree. Judges can make decisions based on more than one ground, they don’t have to make findings in the most logical order, and they don’t have to make the fewest number of findings, even though you can argue that they should. And of course, the fact that the analysis is so cursory is the OP’s criticism. The OP wouldn’t make much sense if the finding was dictum.
April 9, 2010, 10:04 pmcboldt says:
– In general, dicta does not have binding authority, as there is no longer a case or controversy when the question has already been disposed of on more foundational grounds. –
April 9, 2010, 10:05 pmIn this case, dicta today could be holding tomorrow. The judge likely is anticipating a SCOTUS ruling that finds the 2nd amendment to be incorporated against the states.
ShelbyC says:
Dilan, what’s your thinking on whether or not Wood’s holding is dicta?
April 9, 2010, 10:06 pmOpenVolokh says:
ShelbyC,
Why are you asking Dilan if you already know the answer.
You seem to be confusing multifactor tests where analysis of each element is relevant with more rigid situations where X logically precedes Y and the answer to X renders Y totally irrelevant.
In this case, Y was completely unnecessary for the decision.
You are free to have a different opinion, of course. But this isn’t really a matter of opinion. It is like you saying you disagree that 1 + 1 = 2.
April 9, 2010, 10:16 pmOpenVolokh says:
Are you asking in theory or in practice? Is this a descriptive question or a normative one?
April 9, 2010, 10:28 pmOpenVolokh says:
ShelbyC,
By the way, you are asserting that judges can put all sort of things in their decisions, and we are not allowed to use “logic” to determine whether something is dicta or not. If it isn’t based on logic, how would you suggest that dicta be identified? In your world, is anything dicta? How do you know?
April 9, 2010, 10:33 pmporterhouse says:
The 2nd Amendment jurisprudence will end up disappointing many conservatives. We will end up with a right to defend ourselves and families in our homes with guns…this will end up being the correct outcome but will require convoluted reasoning by the Republican partisan hacks on the court. The Democratic partisan hacks failed by not extending the right to privacy to include a right to self defense in one’s home…liberals are always wanting to create new rights except when they involve guns. I can’t wait to see how Scalia distorts the meaning of the word “bear”, I would not be surprised if Scalia states that it refers to the animal…which is consistent with how he distorted the definitions of the words “state” and “militia” in Heller.
April 9, 2010, 11:20 pmE. David Quammen says:
“It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A CONSTITUTION is, in FACT, and MUST be regarded by the judges, as a FUNDAMENTAL law.”
- Alexander Hamilton, Federalist #78
“The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed…”
- Chief Justice John Marshall, U.S. Supreme Court, Cohens v. Virginia (1821).
“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to ALL positive forms of government . . . The citizens must rush tumultuously to arms…”
- Alexander Hamilton, Federalist #28.
I will assume that everyone knows the meaning of the words; “paramount”, “FACT”, “MUST”, and “FUNDAMENTAL”….
April 9, 2010, 11:31 pmnot my leg says:
Professor Kopel should perhaps choose words more carefully. In no way did Judge Woods “rule” on the constitutionality of gun registration (at least not in the way you mean). Given that her court was bound by second circuit case law holding that the Second Amendment is not incorporated, her panel could not possibly have reached the issue of whether the regulation would pass under Heller. The court ruled that the Second Amendment did not apply to the regulation because the Second Amendment was not incorporated. The court then stated in dicta that the regulation would also pass under Heller.
By stating that it was the court’s ruling, you increase its importance, which then makes it sound worse when you shoot it down. When characterized as a comment about an issue unnecessary to resolve the case, it seems more reasonable that the judge did not waste a significant amount of the judiciary’s resources pursuing it. It is also possible that, although all three judges could agree on the proposition, they could not agree on the specifics of the analysis, and decided that it would be better to have a brief dictum, rather than separate concurring opinions.
April 9, 2010, 11:45 pmChris Travers says:
Justice is apparently blind and stupid…. ;-)
April 9, 2010, 11:59 pmShelbyC says:
I have an opinion, I’m not saying I know the answer. I’ve seen Dilan post quite a bit and he usually knows what he’s talking about, so I’d give his opinion quite a bit of deference, more so that my own. And while you seem like a nice guy, I haven’t seen you post enough to give you that level of deference.
I still think Wood’s finding is now the law of the circuit, but I could be convinced otherwise.
April 10, 2010, 12:51 amShelbyC says:
I disagree, I think it’s more like me saying that I disagree that 1 + 1 = 3. :-). I’m not sure I can find any authority to support my view, though, can you?
April 10, 2010, 12:55 amShelbyC says:
I have to disagree. Just because a court is precluded by stare decisis from reaching a question doesn’t mean it can’t, or that if it does its ruling has no effect. I’m currently looking for some authority either way, if anybody has any I’d be interested.
April 10, 2010, 1:01 amOpenVolokh says:
Fair enough. You are smart not to give deference to my views. But to be honest, I am too lazy to fetch any authority. But when you find authority, please feel free to post your results.
April 10, 2010, 1:04 amShelbyC says:
Well, if it turns out I’m wrong you’ll get more deference next time. :-) But it’s hard for me to see how a finding on a question of law that’s before the court is dictum.
April 10, 2010, 1:12 amDilan Esper says:
Dilan, what’s your thinking on whether or not Wood’s holding is dicta?
There’s no clear line between “alternate holdings” (which are binding precedent) and “dicta” (which are not). It goes to whether it is her intent to make both of them independent reasons for the decision (such that if one is overturned she would rest on the other one) or whether she is just opining on an issue that isn’t necessary to her judgment.
Tough call.
April 10, 2010, 1:13 amOpenVolokh says:
Dilan,
So, in your view, all that matters is the judge’s intent? If a judge says I intend that my analysis concerning circus clowns, which has no logical connection to the case whatsoever, be considered to be necessary for the judgment, does what would normally be considered dicta concerning circus clowns thereby transform into binding precedent that lower courts must uphold? That doesn’t seem like that can be right, at least not for federal court.
In federal court, issues can only be decided in order to decide cases or controversies. So, it seems to me that if it is not necessary to resolve the case, it would be nothing more than a non-binding advisory opinion in terms of the Constitution.
Now, of course, this becomes problematic in the context where A and B are independent of each other, and either one could resolve the case. In this case, and in this case only, it would make sense for the judge to designate whether one or neither of the reasons should be dicta, since the judge would always have had discretion to mention only reason A or reason B if they had wanted to to achieve the same result. But it further seems to me that if A and B must be decided in a logical order (B assumes a certain answer to A) that the case or controversy regarding that issue is over once the question to A is answered in a way that renders B purely hypothetical. No amount of “intent” can sever the logical connection between A and B or transform them into independent factors.
On the other hand, I do not know how courts handle a circumstance where a court makes an unnecessary ruling on B, but it becomes logically relevant later. Do you have any case law on this? My instinct is that there must be a case or controversy AT THE TIME that B is decided, and according to the judges own conclusion regarding A (not the judge’s intent with respect to how B is to be treated, but instead their conclusion regarding A, given the logical relation between A and B that the judge cannot change) resolving B does nothing to help resolve the case. In my view, for federal judges this perspective would be Constitutionally required, although that is my normative view on how the Constitution ought to be interpreted and is not based on case law. I simply do not see how there is a case or controversy to be resolved when the decision concerning B is made, when A already completely resolves the case. I would be interested in any relevant case law in favor or to the contrary if anyone wanted to scrounge some up.
In fact, I could be completely wrong in terms of actual Constitutional law, in contrast to my normative sense of what the Constitution actually requires. For all I know, maybe it really is only intent that matters. I seem to recall cases where the Supreme Court has decided issues that it acknowledged it didn’t really need to decide, but thought it was useful to provide guidance on a contentious legal issue. Or maybe that is a figment of my imagination. And if it isn’t a figment of my imagination, is such guidance dicta or binding precedent?
But I have a hard time thinking the standard for what is dicta is anything the judge wants it to be. Even if this was the standard, how are lower courts supposed to figure out the judge’s intent? They can’t subpoena the judge to find out if it isn’t absolutely clear in the opinion. Maybe this would be okay in the case where A and B are truly independent, but even in that case it seems to me that lower court judges are not really going to be in a position to determine intent in most cases, since most judges typically do not go about labeling certain parts of their own decisions dicta.
Anyone have any actual answers based on case law? Is this really just all a matter of judicial discretion, untethered by logic?
Note to ShelbyC:
Maybe 1 + 1 really is 3. According to Dilan. I will believe it when I see it in authoritative case law.
April 10, 2010, 3:02 amDilan Esper says:
So, in your view, all that matters is the judge’s intent? If a judge says I intend that my analysis concerning circus clowns, which has no logical connection to the case whatsoever, be considered to be necessary for the judgment, does what would normally be considered dicta concerning circus clowns thereby transform into binding precedent that lower courts must uphold?
No. Some analysis is clearly not necessary for the judgment. For instance, in US v. Carolene Products, the famous footnote 4 is dicta. The case involved economic due process, and the analysis of whether a different standard of due process would apply in cases involving discrete and insular minorities claiming political and civil, not economic, rights is not at all necessary to the judgment. And this would be true even if Justice Stone had claimed it was necessary.
But the distinction between alternate holdings and dicta is a fine one. An alternate holding is an adequate and independent ground for a decision. For instance, if A sued B for breach of contract, and summary judgment were granted because the defendant established that performance was impossible AND that even if performance were not excused, no damage was suffered by the Plaintiff, those would be alternate holdings. If an appellate court affirmed that summary judgment ruling in a published opinion, the opinion would have full precedential value as to both holdings.
So when you have a close case, and you can’t tell whether something is an alternate holding or dicta, then it turns on whether the judge intended it to be an adequate and independent ground for decision.
April 10, 2010, 3:36 amneimoller says:
YOU ARE WRONG! WOOD IS AN EXTREMIST! AN ACLU CARD CARRYING RADICAL!
April 10, 2010, 3:42 amStephen Lathrop says:
I want to get a dime every time someone puts “strawman” in a comment. Twenty cents if it’s plural.
April 10, 2010, 4:10 amTim says:
Yes we do know the answer to that question. Mr. Heller never challenged the ban. So whether the ban was constitutional or not was not part of the analysis. He conceded that it was and demanded that he be allowed to register his .22 caliber revolver and keep it in his home for self defense.
Thus, the constitutionality of a handgun registration scheme was not at issue in Heller and remains yet unresolved.
April 10, 2010, 4:40 amNickM says:
Regulation and infringement are not the same thing. A firearm registration law need not have a material burden on the ability to keep and bear arms – especially if it is free or of negligible cost. That’s not a defense of the specifics of the ordinance at issue (of which I know not, nor care to read), but I highly doubt that Justice actually made a coherent challenge to the ordinance as materially burdening his RKBA.
Nick
April 10, 2010, 5:09 amcboldt says:
– In federal court, issues can only be decided in order to decide cases or controversies. So, it seems to me that if it is not necessary to resolve the case, it would be nothing more than a non-binding advisory opinion in terms of the Constitution. –
The federal courts do not follow that principle. The very issue of incorporation of the 2nd amendment exists on account of federal courts converting dicta into holding.
The Circuit courts assert that the Presser case stands for the proposition that states have a green light to infringe the RKBA. So, what was the Presser case about? A gun law? Sort of – but better seen as a parade permit law. And the Presser Court decided that the parade permit law was an exercise of police power, the maintenance of public order. The grounds for deciding the case was NOT the 2nd amendment.
So, why does the 2nd amendment make an appearance in the case? Because Presser said the 2nd amendment protects a right to parade, as long as the parade marchers are bearing arms. So, the Supreme Court addressed that argument in what must be dicta, because it delivered approximately opposing language about the relationship between the RKBA, the 2nd amendment, and the power of states.
On the one hand, it said that the 2nd does not apply against the states. This part has been cherry picked by the Circuits to greenlight state bars and other infringements of the RKBA. But check this out, one paragraph away in the Presser opinion:
The opinion has earlier language about the fundamental nature of the RKBA, as well. Quoting Cruickshank, “the right of the people to keep and bear arms ‘is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence.’”
The Circuit Courts have converted the Cruickshank and Presser pair of cases into the opposite of what it stands for, by the cheat of equating the RKBA with the 2nd amendment. That is, if the 2nd amendment has no force against the states, then the RKBA has no force against the states. That for purposes of federal law, the RKBA is entirely embodied within the 2nd amendment, nowhere else to be found.
See the 2nd Circuit, for example, in Bach v. Pataki (which is the precedent used by Sotomayor in the Maloney case).
Anyway, that is some distance from your contention that language not necessary to decide the case is nothing more than non-binding authority. Courts cherry pick the language that suits the desired outcome. 2nd amendment jurisprudence is built on a foundation of fiction and dishonesty. The constitution will mean whatever the judges decide, and the decision will be based on policy.
April 10, 2010, 5:38 amWithout expanding in detail, similar dishonest reasoning has converted Miller v. US from its holding that the 1934 NFA is unconstitutional in light of the 2nd, if short barrel shotguns have a militia use or a use for the common defense; literally into a SCOTUS statement that Miller was convicted (he was never tried), the 1934 NFA was upheld (it would have been struck if Miller had been tried on remand), and Miller stands for the proposition that the 2nd amendment only protect firearms that the government permits be widely held by civilians. The Circuit Courts have taken this Heller dicta, entirely superfluous to Heller’s issue, and converted it into a holding in numerous cases.
cboldt says:
– I highly doubt that Justice actually made a coherent challenge to the ordinance as materially burdening his RKBA. –
April 10, 2010, 5:44 amI’d have to check the statute, but the fact pattern has his firearms forfeited to the state for failure to register; and registration being mandatory each 2 years.
How much argument should the court require? Isn’t forfeiture a material burden? Do you forfeit your car for want of registration?
cboldt says:
– I do not know how courts handle a circumstance where a court makes an unnecessary ruling on B, but it becomes logically relevant later. Do you have any case law on this? –
April 10, 2010, 6:00 amSee Volokh Conspiracy » Blog Archive » The Second Amendment and Domestic Violence (February 23, 2010) for example cases and the rule that at last some Circuit Courts use.
The tiered system of federal Courts routinely converts dicta from above into holding below. The notion of “mere” dicta is a fallacy.
4th Circuit: “Of course, Supreme Court dicta controls when it is on point and it is the only available authority.”
OpenVolokh says:
Hi Dilan,
Okay, but what about standing? If a Federal court finds that a plaintiff loses because they do not have standing, but then goes on to opine on the merits, wouldn’t the discussion about the merits be mere dicta?
But if that is the case, what is the difference here? It seems to me that the matter of incorporation would be quite similar to standing. You don’t even get into the merits of the Second Amendment claim if the Second Amendment is not incorporated.
What am I missing?
April 10, 2010, 6:17 amOpenVolokh says:
cbolt,
Correct me if I am wrong. But it seems to me that you are confusing a situation where a lower court finds dicta persuasive and a situation where they find it binding. Obviously, when a case of first impression comes before a lower court, just like the Supreme Court, they often have to come to some sort of decision. If the Supreme Court has addressed the issue in dicta, they might find that persuasive. I don’t have time to read the cases interpreting the case you mention. But is it the case that lower courts said that they MUST follow this dicta, or is it a matter of them following the dicta because they found it persuasive? (In which case they may not even mention whether it is dicta or not.)
April 10, 2010, 6:24 amcboldt says:
– But is it the case that lower courts said that they MUST follow this dicta, or is it a matter of them following the dicta because they found it persuasive? –
April 10, 2010, 7:05 amSome Circuits have said that their decision upholding state prohibitions on gun ownership is compelled by the Presser case.
– it seems to me that you are confusing a situation where a lower court finds dicta persuasive and a situation where they find it binding. –
“Supreme Court dicta controls” is an unequivocal statement, by a Circuit Court.
Brett Bellmore says:
The key point in the fact pattern that you omitted, is that they required him to register the gun, and wouldn’t LET him register the gun. Which is why he went to court to force them to let him register the gun: He was asking the courts for the tiniest baby step imaginable in the direction of upholding the 2nd amendment.
If you were to challenge the NFA today, you’d use the same approach: It requires you to pay a ‘transfer tax’ to buy a machine gun, or any others of a grab-bag of items. The Court upheld it on the basis that it was a revenue measure, refused to entertain the idea that a 10,000% tax was actually an attempt to prevent the purchases, so long as it might theoretically result in any revenue at all. But now the government refuses to accept payment of the transfer tax in cases of machine guns made after 1984.
So, if you wanted to challenge that, you’d go to court demanding the right to pay that tax, and never mind whether the Court was right in pretending that a 10,000% tax isn’t a penalty instead.
April 10, 2010, 7:05 amcboldt says:
– The key point in the fact pattern that you omitted, is that they required him to register the gun, and wouldn’t LET him register the gun –
April 10, 2010, 7:09 amHeh. Making NickM’s remark, “I highly doubt that Justice actually made a coherent challenge to the ordinance as materially burdening his RKBA,” all the more disconnected from the facts of the case.
OpenVolokh says:
cbolt,
Well, that just sounds crazy to me. It definitely contradicts what I learned about dicta in law school. Any circuit court that says dicta is binding rather than persuasive is confused, it seems to me.
April 10, 2010, 7:20 amcboldt says:
– You don’t even get into the merits of the Second Amendment claim if the Second Amendment is not incorporated. –
April 10, 2010, 7:23 amRead my previous post to you (the long one), paying attention to where the Supreme Court notes that the RKBA does not come from or depend on the 2nd amendment. Even laying the 2nd amendment out of view, says the Presser Court, states may not prohibit the people from keeping and bearing arms.
At that time, the merits of a keep and bear arms claim did not depend on the 2nd amendment. The RKBA stands, even if the 2nd amendment is excised from the constitution.
Since then, the federal Courts have built a large fiction of “incorporation” and have adopted a paradigm that the federal RKBA flows from the 2nd amendment (i.e., when 2nd amendment is amended out of the constitution, the feds can ban the public from keeping and bearing arms).
2nd amendment law is now working in the fictional realm – but it’s at least interesting to understand the law as the late 1800′s Presser and Cruickshank cases stated it, and contrast that with how modern courts state it.
I’ve mused that a good question for nominees to the federal bench would be to ask them to brief what the Miller and Presser cases stand for – without reaching a subjective conclusion about the policy value or correctness. Just what were the facts, the procedural posture, what was the issue, what was the result, and what was the rationale. If they can’t brief a case, they have no business on the bench.
cboldt says:
– It definitely contradicts what I learned about dicta in law school. Any circuit court that says dicta is binding rather than persuasive is confused, it seems to me. –
April 10, 2010, 7:31 amYour professors have denied you the use of a powerful tool, as you argue for your clients’ interests. In all the “interesting” cases, Courts are purely critters of making policy, and emphatically not bound to “following law.” There is always sat least a sophistic argument to obtain a desired result, and there is plenty of contradictory holding and dicta from unrelated cases to facilitate what appears, superficially, to be a coherent opinion, to any desired outcome.
To be fair, Courts have also taken the opposite position when it suits the outcome – that dicta is NOT binding. Plus, given a choice between citing dicta and citing a direct on point holding, the holding prevails in principle (but not necessarily in any given case).
I made it a practice to read cited cases, to see what THOSE fact patterns and holdings were, in comparison to what the case in hand claimed the cited case stood for. It was quite an eye opener. The law is not based on the rational honesty that you think it’s based on.
Anyway, repeating this link to “The Second Amendment and Domestic Violence”, which, in comments, cites numerous Circuit Courts asserting the rule that SCOTUS dicta is treated as binding precedent.
ShelbyC says:
Thanks for weighing in, that makes sense to me.
April 10, 2010, 8:26 amShelbyC says:
Not speaking for Dylan, but it would seem to me that in a case where a court opines on the merits of the case, but finds that it lacks jurisdiction, then the opining on the merits is clearly dicta, since the court can’t make anything on the merits. So in your Marbury example, most of it was dicta, as you say. Here, the court could have gone either way, she can address the scope of the right and not reach incorporation, or address incorporation and not reach scope (aside from the horizontal stare decisis issues, of course). I’m not sure what my opinion about her intent is, though, so you may have been right.
April 10, 2010, 8:33 amcboldt says:
– But is it the case that lower courts said that they MUST follow this dicta, or is it a matter of them following the dicta because they found it persuasive? –
To add another point. Modern Circuits overlook the actual decisional rationale of the Presser Court (the law is not unconstitutional because parade permitting is within a state’s police powers, and because parade permitting does not affect freedom of speech or the RKBA). Modern law implies that a 2nd amendment rationale was the [sole] basis for the Presser decision. In other words, modern courts imply that the 2nd amendment rationale is holding, not dicta. Modern law picks certain phrases from the Presser case, phrases where the Presser Court is addressing Presser’s argument that the 2nd amendment protects a right to parade, and turns them into a federal hands-off of state/local laws that prohibit keeping and/or bearing arms.
From the 2nd Circuit, in Maloney:
and in FN23 of Bach v. Pataki:
April 10, 2010, 8:35 amOpenVolokh says:
cboldt,
I think you need to revise your view on courts. They are a little extreme and definitely off. They are not without discretion, especially at the Supreme Court level but I would not say they are lawless.
I appreciate you weighing in with an opinion, but I feel yours could be usefully refined. Which isn’t to say that you can’t argue about whether courts exercise more or less discretion or ask whether black letter law more or less restrains that discretion, but to suggest that extreme answers are not usually right.
April 10, 2010, 8:35 amcboldt says:
– I think you need to revise your view on courts. They are a little extreme and definitely off. –
April 10, 2010, 8:46 amYou could adjust yours as well. You are too trusting, IMO. I arrived at my point of view via many hours in the books (trust, but verify), and fairly rigorous application of logic.
Not to say that most decisions are illogical, or most precedents are misrepresented – I limited my point to the “interesting” cases. Most cases are pedestrian application of black letter law, and I don’t think the courts have wiggle room there.
I see no rational way to conclude that modern courts take on and application of the Presser and Miller precedents are accurate. YMMV.
OpenVolokh says:
cboldt,
Okay, well no one was saying that courts never exercised any discretion. In fact, exercising discretion is inevitable when faced with ambiguity or limits in conventional legal sources. Also, it would be crazy to act as though there are not interesting cases where creative discretion is exercised unnecessarily. Federal courts are, after all, staffed by mere humans, who are known to have a few bugs in them now and then, just like computers.
I was just struck by how extreme your statement seemed at first, as though the whole thing we call law were a bizarre charade and the exercise of pure discretion-making law nothing more than acts of pure will. But apparently I was misinterpreting you, as you are limiting that point to particular cases.
For the record, dicta is still considered non-binding. That is just basic law and it hasn’t been overturned. Of course, one shouldn’t go too far with that point either, since lower courts do have a tendency to follow Supreme Court dicta, its formal status notwithstanding. I imagine the statement you read about Supreme Court dicta being binding was tongue-in-cheek, talking more about how courts tend to behave with respect to certain dicta, rather than how they formally are required to behave.
April 10, 2010, 9:07 amcboldt says:
– For the record, dicta is still considered non-binding. That is just basic law and it hasn’t been overturned. –
April 10, 2010, 9:15 amI’ll take the case law as more authoritative than your assertion “for the record.” Case law says “it depends.”
– I imagine the statement you read about Supreme Court dicta being binding was tongue-in-cheek, talking more about how courts tend to behave with respect to certain dicta, rather than how they formally are required to behave. –
Stop with the imagination and do some work. Don’t take my word for it. Take the time to look at the links and cites, where Circuit Courts have 1) said that SCOTUS dicta is binding and 2) went on to apply the binding rule to the case at hand. In addition to those cites, see the Hamblen case decided in December 2009. One can’t get much farther from “tongue in cheek” than imprisonment of the defendant.
Brett Bellmore says:
They don’t have any more “wiggle room” in a lot of the interesting cases, either. They just have stronger motive to ignore the black letter law.
April 10, 2010, 9:23 amShelbyC says:
The Hamblen case looks more like a case of the court just being flat-out wrong than an actual rule that dicta is binding. Although you’re right, not many courts seem to care wrt to the Heller dicta.
April 10, 2010, 9:29 amcboldt says:
– The Hamblen case looks more like a case of the court just being flat-out wrong than an actual rule that dicta is binding. –
April 10, 2010, 9:40 amI see it as both, in that case. Hamblen argued that the Heller Court, in dicta, got Miller wrong; and that if the law of Miller is correctly applied to his case, then his conviction cannot stand.
The Hamblen Court correctly stated that Heller rejects Hamblen’s read of Miller. It did not analyze the substance of argument to figure out, as between Hamblen and Heller, which reads Miller correctly. Conviction upheld based on SCOTUS dicta pertaining to the Miller case.
ShelbyC says:
Correct, but I don’t think they intended to find that dicta is binding. I think it was just a flat-out error, and if you called them on that, they would recognize it. But of course we can never know.
April 10, 2010, 9:57 amAnonsters says:
I think you’re confusing Heller and Justice v. Cicero, which is the subject of this post.
The facts of this case, as stated by the 7th Circuit panel:
Justice then challenged the gun registration ordinance, among other things (including the kitchen sink throwing ordinance).
April 10, 2010, 9:59 amcboldt says:
– I think you’re confusing Heller and Justice v. Cicero –
April 10, 2010, 10:07 amI don’t think so. Brett Bellmore is the one who provided “[the city] required him to register the gun, and wouldn’t LET him register the gun,” and assuming that to be an accurate statement of some case, it can’t represent the Heller case, because the city of DC had no statute providing for registration.
cboldt says:
– I think it was just a flat-out error, and if you called them on that, they would recognize it. –
April 10, 2010, 10:16 amWould pointing out “it’s dicta” (in so many words) in the appellate brief count as “calling them out”?
Anonsters says:
Well, then he was describing the facts of some other case altogether. But note that you said, about Brett Bellmore’s description:
NickM was talking about Justice v. Cicero.
April 10, 2010, 10:16 amcboldt says:
– NickM was talking about Justice v. Cicero. –
April 10, 2010, 10:22 amYes. That’s how I took his remark.
– Well, then [Brett Bellmore] was describing the facts of some other case altogether –
I’ll check for myself, now that you assert Brett’s contention to be a falsehood about Justice v. Cicero. I’m confident that Brett Bellmore didn’t take my initial reference to be to Heller, because that mentioned forfeiture, and a 2 year re-registration statute.
ShelbyC says:
Well, one would like to think so, since we’re paying these guys. To me it still has all the halmarks of simple sloppiness, but maybe that’s just because I have such a hard time believing that the court would find itself bound by what is clearly dictum.
April 10, 2010, 10:29 amcboldt says:
– I have such a hard time believing that the court would find itself bound by what is clearly dictum. –
April 10, 2010, 10:41 amI’m quite sure that Hamblen is not the only post-Heller 922(o) Circuit Court decision. All of them use Scalia’s dicta to sustain the conviction.
And I’ll reiterate the Circuit Courts’ history of misuse of Presser dicta to powerful effect.
The House of Cards is strong, provided the public is kept in an ignorant state.
ShelbyC says:
Well, I hadn’t looked carefully, but I had assumed that they were treating the dicta as pursuasive, or were at least ambiguous. But you’re right, in Hamblen they are unambiguously treating the dicta as binding.
April 10, 2010, 10:48 amcboldt says:
From Justice v. Cicero, decided in the 7th Circuit as 07-3990:
Still looking for evidence on the point of whether or Justice was allowed to register his guns, or if they were forfeit.
April 10, 2010, 11:03 amNothing in the article, “Appeals Court: Government Can Require Gun Registration” by Declan McCullagh (August 19, 2009)
Anonsters says:
Sounds to me like he didn’t ask.
2007 WL 2973851, *5 (N.D.Ill. 2007):
April 10, 2010, 11:18 amAnonsters says:
Also from the Third Amended Complaint (2007 WL 917659):
Heh.
April 10, 2010, 11:23 amcboldt says:
From Justice v. Cicero, decided in the 7th Circuit as 07-3990:
It appears that whatever evidence exists on the question of whether or not Justice was allowed to obtain possession of (and register) his guns will appear outside of an Article III proceeding.
April 10, 2010, 11:24 amNow, NickM said he didn’t read the ordinance, so any disconnect between his speculation and facts has an obvious reason.
– That’s not a defense of the specifics of the ordinance at issue (of which I know not, nor care to read), but I highly doubt that Justice actually made a coherent challenge to the ordinance as materially burdening his RKBA. –
My point was that the question of whether or not the ordinance presents a “material burden” is self-evident if all the man’s guns are confiscated for want of registration.
Anonsters says:
This is the whole of the stuff about the 2nd Amendment in his complaint:
April 10, 2010, 11:28 amOrder of the Coif says:
Nope. Once I clean the barrel with a stainless steel bore brush the markings will be too different to support a claim of identity. Or I could lap the barrel. Or, I could … . You don’t even need real tools.
April 10, 2010, 11:29 amvolokh groupie says:
@ArthurKirkland and OpenVolokh
This is nonsense of course. I guess circuit court of appeals nominations are not relevant in your positions. Or the fact that the ‘Gang of 14′ had to be created just to get nominees across. Or that Justice Sotomayor’s nomination didn’t get filibustered and didn’t get nearly 70 votes.
The truth is that democrats and republicans are essentially cut from the same cloth when it comes to hypocrisy. Sen. Leahy will say things during the upcoming battle that his 5 years earlier version would blow a fuse at and Sen. Hatch will suddenly find that great deference to the president in SCOTUS nominations isn’t the superceding priniciple.
April 10, 2010, 11:48 amcboldt says:
Anonsters: — Well, then [Brett Bellmore's, "The key point in the fact pattern that you omitted, is that they required him to register the gun, and wouldn’t LET him register the gun"] was describing the facts of some other case altogether. –
April 10, 2010, 11:52 amThe evidence so far tends to support Brett’s contention; and undermines yours that “wouldn’t let him register the gun” applies to a case other than Justice v. Cicero.
I’m curious about the make and model of the six confiscated firearms. The language of Cicero’s ordinance 62-261 forbids registration of assault weapons, defined at 62-256. A partial list below (the complete list contains about 50 “types” of Assault rifle):
cboldt says:
FWIW, that entire claim, verbatim, is contained in the 7th Circuit opinion. No need to look back to the complaint to find it.
April 10, 2010, 11:58 amAnonsters says:
Again, nothing I’ve seen so far suggests that he asked to register them. Anyway, isn’t it a little late in the day to be asking to register your guns after they’ve been confiscated because you failed to register them?
I didn’t look back in the complaint to find it. I was looking at the complaint for the 2nd Amendment stuff and was amused by it.
April 10, 2010, 12:01 pmcboldt says:
– Again, nothing I’ve seen so far suggests that he asked to register them. Anyway, isn’t it a little late in the day to be asking to register your guns after they’ve been confiscated because you failed to register them? –
It stands to reason that if he can recover or retain his firearms by paying the registration fee, he’d do so. The registration and renewal fees are $25. The fine for noncompliance is $250 – $750 (which he has to pay regardless).
April 10, 2010, 12:21 pmI don’t see how the timing (e.g., “little late in the day”) serves to defeat an attempt to recover the property. Is it a little late in the day to recover your car from the impound lot, for failure to obey parking regulations?
If you want to be obstinate about being right (that he never attempted to register the guns, or that attempts would be futile, given the intersection of type of gun and the regulations), knock yourself out. Frankly, I don’t find your claims to be credible, but others might.
Anonsters says:
There’s no evidence either way. But we do know that he didn’t ask the court in his complaint to allow him to register them. Whatever that means.
April 10, 2010, 12:39 pmBrett Bellmore says:
I did; Think I got confused between the two “judge shows contempt for 2nd amendment” threads.
April 10, 2010, 12:41 pmdon says:
Well, on that note, since she is a female( a member of a protected class), I wonder what her position is on the failure of the Supremes to require 18 year old females to register for Selective Service? Only males are currently required to register, with negative sanctions for failure to do so–loss of educational benefits for example. Seems to me if liberated Barbie is old enough to bleed, Barbie is old enough to butcher. Given the disproportionate casualty rate among males compared to females in the military and the current “gender apartheid” in the Armed Forces, surely an ameliorative affirmative action draft is in order? After all, if it were not for Title Nine, we could not have the current law school graduation gender ratio of 1 to 1. Surely a 1 to 1 ratio is the least we can do for KIAs between genders in the war on terror?
April 10, 2010, 12:45 pmZain says:
Bart says “The law, as described, appears to require the “registration of firearms.” There is a decent argument (whether or not sufficiently strong to withstand scrutiny being a different matter) for requiring firearms to be registered. If firearms are registered, the government may use the registry to help it determine who used a firearm involved in a crime or who acted in a way so as to allow that firearm to come into the possession of someone who used it in a crime. It also may help the government determine, if a firearm is in the possession or someone who may not legally bear arms (e.g., per Heller, “convicted felons or the mentally ill”), whether some other person bears some legal responsibility for that person obtaining the gun.”
April 10, 2010, 12:50 pmThe other reason for registration would be to know who has arms thus making it easy for government to take them away. Fellow by the name of Hitler did exactly that. Read your History Bart. They who will not learn the lessons of History are doomed to repeat them.
Anonsters says:
Gun registration laws = Nazism!
April 10, 2010, 12:59 pmcboldt says:
– we do know that he didn’t ask the court in his complaint to allow him to register them. Whatever that means. –
April 10, 2010, 1:05 pmIt doesn’t mean that I had Heller and Justice v Cicero mixed up, or that Justice’s firearms were seized and kept by the town of Cicero, or that it’s false to say he would be unable to register them.
Anonsters says:
But Brett Bellmore did, and you were responding to his comment.
[FWIW, I have no idea what we're actually arguing about at this point. :P]
April 10, 2010, 1:12 pmcboldt says:
– But Brett Bellmore [had Heller and Justice v Cicero mixed up], and you were responding to his comment. –
April 10, 2010, 1:47 pmIndeed, so it appears. And by coincidence, the “required to but not permitted to register his gun” is potentially applicable to both cases. But for your challenge, I never would have sought Cicero’s ordinances, so the excursion was fruitful.
ShelbyC says:
I wonder what happens to those who mock the lessons of history :-).
April 10, 2010, 2:04 pmNickM says:
Don’t conflate a penalty for failing to register with whether requiring registration itself is an infringement on the right.
I have been convinced by subsequent comments that my earlier comment regarding Justice not bringing a coherent RKBA challenge was well founded.
Nick
April 10, 2010, 3:15 pmAnonsters says:
They get herded into concentration camps?
April 10, 2010, 5:01 pmcboldt says:
– Don’t conflate a penalty for failing to register with whether requiring registration itself is an infringement on the right. –
April 10, 2010, 5:21 pmConsideration of the penalty for non-compliance is part and parcel of evaluation of a requirement. For example, if there is an onerous “requirement” to register, but failure to register has no penalty, then there is no burden – just don’t register.
Or, in the other direction, an easy registration requirement coupled with unappealable forfeiture on non-compliance.
Agreed that the burden of penalty on non-compliance is separate from the burden of compliance, but the two items can be tightly related; and in a case that involves the penalty for non-compliance, it’s essential to include the penalty in the analysis. Counter-example is Heller II, where the registration requirement is being attacked without having been violated.
Bohemond says:
Kin yew say “vague” and “overbroad,” boys and girls?
April 10, 2010, 6:13 pmmariner says:
Did you find any cases in which law enforcement agents knew who committed the crime because the perpetrator had registered the firearm used to commit the crime?
If you did not, then your conclusion is obviously not justified by your research.
April 10, 2010, 6:34 pmmariner says:
OpenVolokh:
IANA, but 2A jurisprudence certainly seems to be a bizarre charade justifying acts of pure will.
We should be able to trust courts, especially the Supreme Court of the United States to be honest about its own precedent. Heller showed us that we cannot — for them the Second Amendment is still too Inconvenient to respect.
April 10, 2010, 6:51 pmLarryA says:
But how many times did the registration actually provide useful information? If someone shoots a person, and the police catch him with the gun, they would establish whether it’s registered to him and probably include it in the court case. But the fact of registration wouldn’t materially assist in solving the case.
April 10, 2010, 11:02 pmreadery says:
The Heller court never struck down Washington’s licensing scheme or so much as hinted that requiring a license (a kind of registration requirement) is unconstitutional. Instead, it ordered D.C. to give Heller a license (i.e. to register Heller), implicitly accepting registration s a proper and appropriate outcome.
This outcome strikes me as evidence, indeed logically compelling evidence, that registration schemes as such are not unconstitutional under Heller. If there are unconstitutionally onerous restrictions short of prohibition, a plain-vanilla license requirement simply is not among them.
April 11, 2010, 1:31 amcboldt says:
– If there are unconstitutionally onerous restrictions short of prohibition, a plain-vanilla license requirement simply is not among them. –
April 11, 2010, 5:46 amHeller just lost his challenge of the DC licensing requirements. See “District Court Upholds D.C. Registration Requirement, ‘Assault Weapon’ Ban, Ban on Large-Capacity Magazines“, where Professor Volokh agrees with the outcome (meaning, I take it, that all the results should be upheld on appeal), and is critical of the choice of rationale used to uphold the (in his view, perfectly constitutional) “assault weapon” and large capacity magazine bans.
I don’t know what “plain vanilla” means in the context of handgun possession licensing requirements. These are the DC requirements for licensing a handgun for possession in the home, taken from Judge Urbina’s Memorandum Opinion of March 26, 2010.
Brett Bellmore says:
The Heller court wasn’t ASKED to strike down D.C.’s licensing scheme. It was asked to require that they actually issue licenses. A licensing scheme where licenses aren’t issued is just another way of implementing a ban, after all.
And it was entirely to be expected that the district court would uphold D.C.’s licensing scheme if it were challenged, be it ever so onerous. They upheld D.C.’s original refusal to issue licenses. If the Supreme court really intends to restore the 2nd amendment, they’re going to have to do so in the teeth of massive resistance from the lower courts.
Finally, yes, Eugene is indeed comfortable with the 2nd amendment being treated rather shabbily, so long as it’s not entirely destroyed. I hope, but do not particularly expect, that the Heller majority will require the 2nd amendment to be treated with a bit less contempt.
April 11, 2010, 7:47 amBrett Bellmore says:
Upon reading the district court’s decision, by the way, I would say that they were correct as a matter of normal legal doctrine in rejecting Heller’s request for summary judgment in his favor, and incorrect, as a matter of that same doctrine, in granting summary judgment against him.
You’re only supposed to grant summary judgment if the side you grant if for would prevail even if all contested matters were resolved in favor of the OTHER side. Surely whether guns which are legal throughout most of the country are “typically possessed by law-abiding citizens for lawful
purposes”, “in common use at the time”, and not “dangerous and unusual weapons”, is at least contested, and requires the sort of factual determination which calls for a trial?
Summary judgment in favor of the District was, thus, inappropriate, even if you think the District should have prevailed in event of a trial.
Oh, and to quote the court: “As the Illinois Supreme Court noted, the right to bear arms is subject to “substantial
infringement.””
As anyone who can read notes, the 2nd amendment says the right “shall not be infringed”.
April 11, 2010, 8:46 amKevin P. says:
Did the registration of the gun help to actually solve the crime? Or was it additional evidence to be presented after the crime had been solved?
April 11, 2010, 9:58 amcboldt says:
– You’re only supposed to grant summary judgment if the side you grant if for would prevail even if all contested matters were resolved in favor of the OTHER side. –
April 11, 2010, 10:40 amI think that’s what the judge did. He basically said that as a matter of law (meaning, taking the facts as stated by Heller), the DC regulations are constitutional. The contest is not between litigants, it is between the public and the courts.
– Oh, and to quote the court: “As the Illinois Supreme Court noted, the right to bear arms is subject to “substantial infringement.””
As anyone who can read notes, the 2nd amendment says the right “shall not be infringed”. –
As between those two authorities, the one that prevails, again, “as a matter of law,” is the one uttered later in time.
The new 2nd amendment concludes, ” … the right of the people to keep and bear arms is subject to substantial infringement.” That’s not only a statement of principle, its a matter of fact and objective reality, to a metaphysical certainty. Lighten up, learn the new lingo “not infringed” = “not totally stripped.”
You’ll notice that when a litigant attempts to bring precedent to the attention of a jury, that the courts refuse. Decisions made by the courts are outside the purview of the public.
cboldt says:
– Oh, and to quote the court: “As the Illinois Supreme Court noted, the right to bear arms is subject to “substantial infringement.”” –
That’s from Kalodimos v Morton Grove, 470 N.E.2d 266 (1984). The complete quote refers to the Illinois constitution, which RKBA recitation includes “subject to the police power.”
For educational purposes, Kalodimos is a great case. Closely decided, and opposing sides air a full argument. The subject material is “police power.”
April 11, 2010, 11:15 amBrett Bellmore says:
IOW, they used a ruling about a state 2nd amendment analog, based on language not in the federal 2nd amendment, to justify infringing exactly what is supposed to not be infringed.
“The new 2nd amendment concludes, ” … the right of the people to keep and bear arms is subject to substantial infringement.” That’s not only a statement of principle, its a matter of fact and objective reality, to a metaphysical certainty.”
I will never ‘lighten up’ to the extent of accepting the legitimacy of the courts perverting the law. That they do it? Sure. That it’s legitimate?
NEVER.
April 11, 2010, 3:50 pmDilan Esper says:
But how many times did the registration actually provide useful information? If someone shoots a person, and the police catch him with the gun, they would establish whether it’s registered to him and probably include it in the court case. But the fact of registration wouldn’t materially assist in solving the case.
Well, there’s no way of knowing, but given that courts don’t tend to admit evidence that is unnecessary or cumulative, the number is probably well above “zero”.
As I said, it really is a silly position to argue that gun registries never help solve crimes. Of course they do, because establishing ownership of the weapon used in the crime obviously can be probative evidence in some cases. In other cases (where the weapon is unregistered or stolen), it may not matter that much.
April 11, 2010, 4:25 pmcboldt says:
– IOW, they used a ruling about a state 2nd amendment analog, based on language not in the federal 2nd amendment, to justify infringing exactly what is supposed to not be infringed. –
April 11, 2010, 4:29 pmThe incomplete reference (at least in context of this case) to the Illinois Supreme Court “subject to substantial infringement” language can be credited to the academy, Adam Winkler, Scrutinizing the Second Amendment, 105 MICH . L. REV . 683, 718-19 (2007). Judge Urbina cited it to obtain a description of “the reasonableness test,” something slightly less deferential than rational basis. Immediately after citing Winkler, the court rejected DC’s assertion that the “reasonableness test” is the appropriate standard of review.
– I will never ‘lighten up’ to the extent of accepting the legitimacy of the courts perverting the law. –
That makes two of us. 2nd amendment law as set out by the federal courts is a disgrace. I’m impressed at the extent the academy facilitates and participates in the cover-up.
cboldt says:
– Of course they do, because establishing ownership of the weapon used in the crime obviously can be probative evidence in some cases. –
April 11, 2010, 4:45 pmBut you haven’t provided an iota of information, evidence or research on the use of a registry (let alone the efficacy) at the crime investigation stage.
At trial, the burden to prove possession (and maybe circumstantial evidence of guilt) can be addressed by showing registration; and burden of proof at trial may be the sole reason registry information is introduced into evidence.
Bob Stump says:
Whatever Cicero reveals about Judge Wood’s outlook on control, the freewheeling dicta of Her Windyness seems contraindicated by another Seventh Circuit ruling three months later, United States v. Skoien (No. 08-3770). The dicta in that case implies strict scrutiny should be the standard for evaluating core constitutional rights such as gun possession under the Second Amendment: http://law.marquette.edu/facultyblog/2009/11/22/seventh-circuit-criminal-case-of-the-week-a-second-amendment-blockbuster-or-maybe-not/
April 11, 2010, 4:47 pmLarryA says:
Registration may show ownership, provided records are correct and current. It won’t show possession, any more than being the registered owner of an automobile proves you were driving it at any particular time.
The first calculation should be whether the dollar expense, law enforcement work hours, and gun owner inconvenience of a reasonable registration scheme balance the value those resources could provide when used in other ways. The economic history of the Canadian long gun registry indicates that gun registration costs far more than it’s worth.
Another way to answer that calculation is what results the history of gun registration shows. Given that a handful of U.S. states have required registration for a couple of decades, and those states still have rates of violence as high or higher than the majority of states that don’t require registration, the evidence is negative.
Then there’s the problem that gun registration schemes show a tendency to be unreasonable. In D.C. and Chicago, “registration” was a de-facto ban. If any other licensing scheme had the same discriminatory results as the NYC program, every minority civil rights organization in the U.S. would go ballistic. The same is true of various “discretionary” licensing programs. Historically, programs that often produce such results have been ruled unconstitutional. Examples include separate-but-equal education, voting literacy tests, and poll taxes.
April 11, 2010, 7:52 pmcboldt says:
– Registration may show ownership, provided records are correct and current. It won’t show possession, any more than being the registered owner of an automobile proves you were driving it at any particular time. –
April 11, 2010, 8:20 pmI agree. And I didn’t mean to say or imply that evidence of ownership is, itself, proof of possession at the time of the crime. But in order to obtain a conviction, the prosecution must prove the defendant had the gun at the time of the crime, and registration facts plus other facts can be applied toward that ultimate objective.
I’m dead set against registration, unless the government imposes a requirement, ala Switzerland, that each “home” must have a functioning firearm, and registration goes to audit THAT, and only that.
Alan Chwick,Editor says:
This blog entry is further discussed in the context of a New York case currently on appeal where a trial court judge entered a ruling similar to Judge Wood’s in Justice v. Town of Cicero.
But unlike that case, the New York case survived the incorporation challenge. Will be interesting to see if the NY appellate court engages in elevated scrutiny and if so, what standard of review they adopt.
See “New York local gun control challenge moves forward; fate of preemption in NY hangs in the balance” at http://www.thegunzone.com/TGZBlog/2010/04/11/new-york-local-gun-control-challenge-moves-forward-fate-of-preemption-in-ny-hangs-in-the-balance/
April 11, 2010, 8:21 pmDilan Esper says:
But you haven’t provided an iota of information, evidence or research on the use of a registry (let alone the efficacy) at the crime investigation stage.
Since we can’t read the minds of police officers, that would be tough to do. (In any event, many police groups (though admittedly not all) support gun registration. So it isn’t as though there aren’t any investigators out there who think this is helpful.)
But I would suggest to you that this is simple cognitive blocking on the part of gun rights advocates. It’s plainly obvious that if gun registrations show up in the statement of facts in appellate cases, that means they are admitted into evidence in vastly more cases that never result in a published appellate opinion. And if they are admitted into evidence in a lot of cases, the odds are, some of those cases are situations where the gun registration evidence helped solve the crime or convict the offender. And this is what we would expect, because license and registration systems with respect to all sorts of other things help solve crimes.
The response “well, there’s no specific evidence of a crime that was cracked open, in the investigative phase, by a gun registration” is a very weak response to a pretty overwhelming case.
I know gun rights advocates would LIKE to believe that gun registration never helps, because that would of course make the case against it easier to make. It would be more honest, though, to at least be willing to assume that yes, gun registrations sometimes help solve crimes and make your argument as to why we shouldn’t have them nonetheless.
April 12, 2010, 1:31 amcboldt says:
– if they are admitted into evidence in a lot of cases, the odds are, some of those cases are situations where the gun registration evidence helped solve the crime or convict the offender. –
April 12, 2010, 6:59 amI don’t disagree with that. But your evidence of production at trial doesn’t distinguish between “help solve the crime” and “help convict the offender.” Law enforcement properly has an interest in BOTH aspects, so its advocacy (without more) isn’t probative of that distinction either.
On the one hand, you say evidence of efficacy at the investigatory phase is tough to come by; on the other hand you insinuate there is overwhelming evidence that gun registries solve crimes. You conclude by saying that it would be honest on my part to make an assumption in your favor, in lieu of having evidence.
Gun registries track the law abiding. Criminals will always be able to obtain firearms that are “off the books.”
– license and registration systems with respect to all sorts of other things help solve crimes. –
Is this another “trust me” argument?
Dilan Esper says:
Is this another “trust me” argument?
So nobody in the history of this country has ever written down an automobile license plate number and given it to the police, who used it to track down a criminal?
April 12, 2010, 1:31 pmKevin P. says:
In Canada, where there has been a registry for rifles and shotguns for over a decade, there are very few cases where the police can point to the registry having solved a crime.
April 12, 2010, 1:41 pmPotential Supreme Court nominee records on 2A - INGunOwners says:
[...] Whitehouse, Gov. Deval Patrick. Limited but clearly negative record on right to arms: Judge Diane Wood, Judge Merrick Garland. Mixed record, but with very little positive: Amy Klobuchar. Mixed record: [...]
April 13, 2010, 10:38 amDilan Esper says:
In Canada, where there has been a registry for rifles and shotguns for over a decade, there are very few cases where the police can point to the registry having solved a crime.
1. Very few is not none.
2. Rifles and shotguns are not handguns.
April 13, 2010, 2:08 pm