The Volokh Conspiracy

Earlier today, I blogged about some problems with the New York Times' coverage of the D.C. Circuit's Second Amendment decision; the coverage at times said and at times strongly suggested that this was the first federal court of appeals decision that accepted the individual rights theory, but of course the Fifth Circuit's Emerson decision did the same several years ago. The Times has updated its coverage, and I've posted an UPDATE reflecting that.

Still, I wanted to separately note a problem with the Times' updated coverage, which includes this paragraph:

"The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward."

Actually, Emerson was a long decision, which stretches (excluding the caption, the synopsis, and the headnotes) from page 210 to 265 of volume 270 of the Federal Reporter, 3rd series, not counting the Appendix, which is all about the Second Amendment. Pages 210 to 218 discuss the facts, the statutory background, and Emerson's statutory, Due Process Clause, and Commerce Clause arguments. Then pages 218 to 260 — over 40 pages — discuss the question whether the Second Amendment secures an individual right, concluding that it does. Pages 260 to 264 conclude that the individual right is nonetheless not absolute, and conclude that the statute at issue in the Emerson case is a permissible restriction on the right. Pages 264 to 265 contain a brief conclusion. Thus, 42 of 55 pages in the opinion "embrace[] the individual-rights view of the Second Amendment." That is "an aside"?

The Times might have been trying to convey the theory that the Emerson opinion is dictum, which is to say not binding because it's not necessary to the holding of the case. The Fifth Circuit began the Second Amendment discussion by asking what the nature of the right was; it concluded the right was individual; it then went on to ask what the scope of the individual right was; it concluded the individual right could be limited in certain ways; and it finally concluded that the statute involved in the case was a permissible limitation. The "dictum" theory is that the individual rights conclusion was unnecessary because the Fifth Circuit could have instead said "Even if we assume the Second Amendment secures an individual right, we'll conclude the right could be limited in certain ways, and the statute involved in this case is a permissible limitation."

But, first — and most important to my criticism of the Times article — dictum isn't the same as "an aside." An aside sounds like a casual, relatively unconsidered assertion. Emerson's 42-page decision, even if it's unnecessary to the holding, is not an aside.

Second — and likely more interesting to those who are more interested in legal questions than in media criticism — Emerson's reasoning is not dictum. Conceptually, that a court could have reached the result some other way doesn't turn into dictum the reasoning that the court actually used to reach the result. And, practically, courts, including the Supreme Court, often decide whether a person's rights are violated by first deciding what the nature of the rights is, rather than using more conditional reasoning.

Consider four such cases: Korematsu v. United States (1944), Everson v. Board of Ed. (1947), Jackson v. Virginia (1979), and Strickland v. Washington (1984). Each of them, like Emerson, had to decide what the basic core of the right was first: Korematsu decided that race discrimination by the federal government was presumptively impermissible; Everson decided that the Establishment Clause was incorporated against the states; Jackson decided that the Due Process Clause required appellate courts to review convictions to see whether there was sufficient evidence to support them; and Strickland decided that the Sixth Amendment protects the right to effective assistance of counsel, and not just the right to counsel.

Yet then each of them nonetheless found that the right was not violated — Korematsu held that the presumption of unconstitutionality was rebutted; Everson held that though states are bound by the Establishment Clause, the program at issue in that case didn't violate the Clause; Jackson held that there was sufficient evidence to convict the defendant; and Strickland held that the assistance of counsel was effective. In each of them, the Court could have avoided the initial constitutional ruling by holding, for instance, that "even assuming (without deciding) that the Establishment Clause is incorporated, it would not be violated here." But the Court didn't avoid the initial constitutional ruling; it made the ruling as part of its chain of reasoning, and then held that the right that it recognized was not violated, as a later part of its chain of reasoning.

I have never heard anyone argue that the nature-of-the-right rulings in these cases were dictum. In fact, Jackson and Strickland are remembered entirely for those rulings. No-one treats them as dictum, which I think further illustrates my conceptual point about dictum: When a court decides first whether a right even exists (is there a right to effective assistance of counsel at all?) and then applies the right, that's an accepted, normal procedure, in which the decision about the right's existence and the right's application are both holding. A court may choose to assume the existence of the right without deciding it; but it is not obligated to do so, and its choice to make the decision about the right's existence does not make the decision dictum.