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Dictum:

Whatever one might plausibly say about whether the Second Amendment secures an individual or collective right, and whether it applies to citizens in D.C., it seems to me one can't plausibly say (as the dissent in the D.C. Circuit case did) that the majority opinion is "dicta," or that "the meaning of the Second Amendment in the District of Columbia (District) is purely academic."

Dictum, or the plural dicta, refers to "An opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision" (Black's Law Dictionary). Dictum is not binding on future panels within the Circuit -- though it might be persuasive, just as concurrences (set aside concurrences in the judgment needed to form a majority) are not binding and thus pure dictum, but might be persuasive, and just as dissents might sometimes be persuasive (at least when the contrary view expressed by the majority is not binding). It is also sometimes seen as poor form, though my sense is that nearly all judges engage in it on occasion with little embarrassment.

Thus, if the majority had stated that it thought the right to bear arms was incorporated against the states, that would be dictum, because that conclusion would likely not be essential to the logic of the majority's decision: Since the majority is speaking of a right as against a federal entity under the Second Amendment (the District of Columbia), and its reasoning does not require a judgment about what the right would be as against a state under the Fourteenth Amendment, any opinion on the matter is "not essential to the decision" that the panel handed down.

But deciding whether the right is individual -- and surely deciding "the meaning of the Second Amendment in the District of Columbia" -- is essential to the majority's reasoning. The majority's ultimate conclusion, which is that the D.C. gun ban is unconstitutional as to the one plaintiff who has standing, relies on the intermediate conclusion that the right is individual, and therefore applies to individuals throughout the country, in states or out. As the majority points out on p. 48 n.16, it's possible that the majority's intermediate conclusion is wrong. But, right or wrong, it "directly supports [the majority's] holding," and is therefore holding, not dictum.

Finally, note that reasoning does not become dictum just because the majority could have reached the same result through a narrower decision (an argument that had been made as to the Fifth Circuit Emerson decision holding the Second Amendment to be an individual right, but holding that the Amendment wasn't violated by the statute at issue in that case). For instance, in Everson v. Board of Education (1947), the Court decided that the Establishment Clause applied to the states and not just to the federal government; and the Court also defined in some measure the scope of the Clause. Nonetheless, the Justices went on to apply this (admittedly quite ambiguous) definition to conclude that the Establishment Clause was not violated by the practice at issue in this case. The Court could have just said "even if the Establishment Clause applies to the states, the practice here would not violate the Clause." This would have reached the same result through a narrower decision. But it was not the reasoning that the Court used; and given that deciding on whether the Clause was incorporated was an essential part of the Court's reasoning, that decision is binding holding, not dictum. (For other examples, see here.)

But in any event, regardless of what you think about the "majority could have reached the same result through a narrower decision, so their broader decision is dictum" argument, it can't apply here: Here, adopting the dissent's supposedly narrower view would have yielded the opposite result. Again, the majority's reasoning may well be incorrect holding, but it's holding.

anonVCfan:
Judge Leval had a great discussion of this recently in the NYU Law Review.


Judge Henderson's point, I think, is summed up in her footnote 1 (p. 75 of the opinion). The idea is that the majority's analysis is really based only on the text of the Amendment, and maybe 2 Supreme Court cases. The rest of the scholarly-sounding journey through old opinions, treatises, and legislation, et cetera, isn't necessary, is just "piling on," and masks how the case was actually decided.
3.9.2007 1:03pm
anonVCfan:
That is to say, I think Judge Henderson agrees that the notion that the Second Amendment is an individual right is "holding" and is necessary to the decision reached.

This sentence is a bit awkward:

Today the majority adds another fifty-plus pages to the pile.1 Its superfluity is even more pronounced, however, because the meaning of the Second Amendment in the District of Columbia (District) is purely academic.

What she means isn't that the 50 pages are unnecessary because DC isn't a state, but that they are unnecessary because they are based on an incorrect assumption (that the Second Amendment applies to DC).

Even so, I don't think Judge Henderson has mangled the meaning of dicta.
3.9.2007 1:07pm
Antares79:
Agree with anon.

Henderson is saying that the "does the 2d amend apply to dc?" question must be answered before the "does the 2d amend secure an individual or collective right?" question.

Because she answers the first question in the negative, the second need not be reached by her and anyone agreeing with her. The majority, who presumably answered (or elided over) the first question in the positive, is justified in reaching the second. (anyone have a pg # of majority addressing first question?)
3.9.2007 1:18pm
anonVCfan:
Right. She makes 2 assertions, one of which is about dicta and the other of which is not.

1. The majority opinion is based on less than meets the eye.
2. DC is not subject to the second amendment.

Only the first is about dictum vs. holding
3.9.2007 1:22pm
Sub silentio submitter:
Eugene -- So what do you make of the Supreme Court's statement in Carroll v. Lessee of Carroll, 57 U.S. (16 How.) 275, 286-87, that "if [a point of law] might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion on such a question is not a decision"? Doesn't that indicate that it is not the reasoning relied upon, but rather the reasoning necessary to the result, that is the true holding?
3.9.2007 1:38pm
PaddyL (mail):
The concept that the Constitution does not apply in DC seems to be absurd. Is this a matter of first impression? Are there any decisions holding that the Constitution does or does not not apply in territories or protectorates of the US? If the Constitution applies in our territories, surely it must apply in DC.
3.9.2007 1:55pm
AF:
Finally, note that reasoning does not become dictum just because the majority could have reached the same result through a narrower decision (an argument that had been made as to the Fifth Circuit Emerson decision holding the Second Amendment to be an individual right, but holding that the Amendment wasn't violated by the statute at issue in that case).

That's debatable. Consider Judge Leval's explanation of dicta (link in above post):


I illustrate by reference to a hypothetical card game, with rules not yet clearly understood. Let's call it "Poker." The plaintiff has three Jacks; the defendant holds a pair of Queens. Each claims to have the winning hand. The court rules for three Jacks. In explanation,
the court writes, "When held in equal numbers, Queens beat Jacks. But three-of-a-kind always beats a pair." The statement that Queens beat Jacks is superfluous to the court's reasoning, which explained the grant of judgment to the plaintiff by reason of the plaintiff's having three-of-a-kind. Were the statement turned around to state the opposite—that Jacks beat Queens—the court's grant of judgment in favor of the three Jacks, on the ground that three-of-a-kind beats a pair, would nonetheless stand unaltered. The statement of priorities between Jacks and Queens played no role in its award of judgment in favor of the three-Jack hand and was accordingly dictum.


Isn't the statement "the Second Amendment creates an individual right, but Congress may prohibit possession of a firearm while under a valid court order" analogous to the statement "when held in equal numbers, Queens beat Jacks, but three-of-a-kind always beats a pair"?

Of course, the premise of Leval's paper is that dicta are commonly (and in his view wrongly) treated as binding. So Professor Volokh is right with regard to common useage. And he may be right on the merits. My point is simply that his point doesn't follow from the definition of dicta.
3.9.2007 2:05pm
Eugene Volokh (www):
AF: Well, one could define dictum as narrowly as you suggest (though I might quibble with the poker hypo). And if you want to treat as dictum Everson's statement that the Establishment Clause is incorporated, Strickland's statement that the Sixth Amendment secures a right to effective assistance of counsel, Jackson v. Virginia's statement that convictions may be vacated on constitutional grounds if a court finds that there was insufficient evidence to support them, and Korematsu's statement that federal race classifications are subject to strict scrutiny, your narrow definition would have that result. But given that those conclusions (and others like them) are generally treated as holding rather than dictum, it suggests that our legal system treats as holding that which is necessary to the chain of reasoning that the court actually employed, and not to the minimal possible chain of reasoning that the court could have employed.

Sub silentio: The longer quote is, "If the construction put by the court of a State upon one of its statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion on such a question is not a decision. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide to whom the property in contestation belongs.... 'It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent; other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.'" In context, this seems to be at least consistent (and in my view probably more consistent) with the position that dictum is that which is unnecessary in light of the reasoning the court actually used, not just something that could have been omitted had the court used some other chain of reasoning.
3.9.2007 2:15pm
AF:
Professor Volokh, as I said, I agree that your definition of dicta comports with common useage, particularly of Supreme Court opinions by lower courts.

As well as the cases you cite, Professor Leval's definition would also treat the McDonnell-Douglas framework for Title VII cases as dicta and the qualified immunity procedure of Saucier v. Katz as mandating the issuance of dicta. Indeed, Leval takes both of those positions in his article.
3.9.2007 2:28pm
AF:
My own view is that lower courts should use Volokh's definition for Supreme Court opinions and Leval's definition for lower court opinions.
3.9.2007 2:36pm
Spartacus (www):
The tendancy of other sore losers to sdopt dissent's inane whine "the majority's opinion is just dicta" will unfortunaely incrase the tendency for majorities to include boilerplate language like the majority's in this case that "no it's not."
3.9.2007 3:26pm
Dodd (mail) (www):
There are a couple of points in the majprity holding I think one can reasonably classify as dicta.
For instance, I don't see how the mention that "[t]he protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment" is necessary to the holding in the case. Whereas finding that the Second Amendment is an individual right is essential to the ruling, this is not.
3.9.2007 3:28pm
KD:
Dicta: "The terms 'Arms' was quite indefinite, but it would have peculiar, to say the least, if it were designed to ensure that people had a right to keep weapons capable of mass destruction -- i.e., cannons."
3.9.2007 5:05pm