What Counts as an "Aside" These Days:

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.

RAC (mail):
The Times has already deleted the paragraph you point out concerning Emerson. AT least when I pull up the Liptak article now, I do not see any specific mention of the Fifth Circuit or Emerson anymore.
3.10.2007 1:12am
RAC (mail):
Sorry, I must have followed the old link to the early version of the story. I found the paragraph you point out when linking through the NYT front page. As I am sure many others do, I appreciate all your coverage today. Your points are well taken.
3.10.2007 1:17am
I suspect that Korematsu ruled that the presumption of unconstitutionality was rebutted.
3.10.2007 1:18am
joe (www):
Your points are well-taken, although I suspect the NYT write would merely respond that you're being hypertechnical with respect to the difference between dictum and an aside. Furthermore, many, if not most, readers of the NYT won't really know what "dictum" is.

I do like how the article includes that Texas and Miss are part of the Fifth, suggesting that only a court for Texas can rule as it did.
3.10.2007 5:38am
Bill Dyer (mail) (www):
A decision may be criticized for unnecessarily reaching a constitutional question that could have been avoided. That's actually a criticism of a sort of judicial activism. Careful courts impose that restraint on themselves. Sometimes careful advocates urge courts to do so, even when it's against their natural instincts.

I was appointed to handle a Fifth Circuit ineffective assistance case in the early 1980s, for example, in which the district court's decision was based on an old line of Fifth Circuit cases that used one standard for what constituted effective assistance by "retained" counsel, and a higher standard for what constituted effective assistance by "appointed" counsel, on grounds that when someone retained their own counsel, there was insufficient "state action" necessary to incorporate the Sixth via the Fourteenth unless the inadequacy of representation was shockingly obvious to the judge. Appointed counsel, by contrast, having been "picked" by the state, were required to actually be reasonably competent. My client had been incompentently, but not shockingly, misrepresented by his retained counsel, so the difference mattered. And I believed (and still do) that the Fifth Circuit's distinction between retained and appointed counsel (which went back more than two decades and had been used in over 50 decisions) had been overruled by implication by a recent U.S. Supreme Court decision.

My brief laid all that out. But I also had an argument that whether or not the law had changed, the district court had erred in not giving my client an evidentiary hearing, and that the Fifth Circuit could avoid deciding whether its long line of precedents had been overruled, at least for the immediate term, by remanding for that evidentiary hearing. That's what the Fifth Circuit did, so my hoped-for home run turned back into a single.

I lost at the district court level, though, so I was quickly back up to the Fifth, and again I made my grand constitutional arguments to try to undo 50+ precedents. But because my duty to my client trumped my desire to hit a home run ball as an advocate, I also had to argue that the district court's fact findings were clearly erroneous under the evidentiary record, and that the Fifth Circuit could reverse and render on that basis, again without addressing the "overruled by implication" issues. And again, the Fifth Circuit panel -- while politely and sympathetically discussing my home-run arguments -- held me back to a ground-rule double. My client was perfectly happy: He wanted, and got, an out-of-time appeal on the basis of ineffective assistance, even though his name (and my representation of him) didn't turn into a major Fifth Circuit case that declared 50+ prior Fifth Circuit opinions to be overturned.

That a court has not taken the judicially conservative path, however, certainly doesn't mean that the decision is therefore not binding precedent. That's just silly. (Which is typical of the NYT.)
3.10.2007 6:13am

"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 dictum."

Is it possible you left out something in this sentence, Professor? Did you mean to say the decision about the right's existence and application are both precedential?
3.10.2007 6:47am
G-Lor (mail):
This gets my goat:

"In a 1996 dissent while serving on the federal appeals court in Philadelphia, Judge Samuel A. Alito Jr., now a justice of the Supreme Court, wrote that he would have struck down a federal law regulating the possession of machine guns under the commerce clause of the Constitution."

How Alito's commerce clause jurisprudence has anything to do with how he will interpret the Second Amendment is beyond me.

Though, I believe the Times' implication is that Alito is pro-gun, so he will support the D.C. Circuit's individual rights interpretation. It rankles me that the Times makes this assumption based on a commerce clause case and then tosses in a paragraph like this. Alito may or may not have an indvidual rights interpretation, but to make that assumption/leap from a commerce clause case is a stretch. It seems to me that the Times treats it like its a single issue, either your pro gun or your not. Maybe Alito just reads the commerce clause narrowly (properly in my uninformed opinion)...
3.10.2007 9:08am
magoo (mail):
Your main point regarding “dictum” is absolutely correct.

As an aside, your less important point about “aside” is mistaken. There’s nothing inherently casual or unthoughtful about an aside. An aside is a digression from the main theme. It can be casual or well considered. In theater, an aside might be the most thoughtful or incisive remark uttered in a scene (typically whispered to the audience in a manner suggesting that the other characters can’t hear it). Care and thoughtfulness do not disqualify a remark from being an aside. Lengthy, thoughtful asides are sometimes the best kind.
3.10.2007 9:18am
Eugene Volokh (www):
Lior, steve_g: Thanks for the heads-up about the errors, which I fixed.
3.10.2007 9:48am
David M (mail) (www):
Trackbacked by The Thunder Run - Web Reconnaissance for 03/10/2007 A short recon of what’s out there that might draw your attention.
3.10.2007 10:25am
frankcross (mail):
The NYT didn't say it was dicta, did it? It just pointed out that the 5th Circuit ruling on individual rights did not control the result.
3.10.2007 11:21am
Eugene Volokh (www):
Frank: The Times said it was an "aside." If they just meant "aside" in the normal sense, then it's pretty odd to call the 42-page discussion that took up the majority of the opinion an "aside." I included the stuff about dictum in case "aside" was an inexact attempt at translating the legalese "dictum."
3.10.2007 11:34am
AppSocRes (mail):
I just heard the NPR segment on this (about 9:45 AM EDT 10 March in Boston). It replicated all the errors in the original NYT article and added a few of its own. The thrust of the segment was that only a few extremists outside of the legal profession paid any attention to the individual rights interpretation of the Second Amendment, Sullivan settled this issue 70 years ago, and the DC Court's decision was shocking and unprecedented. I know that this is "dog bites man" news, but to me it still seems worth noting that the MSM seem to be presenting a set of coordinated mis-truths on this decision.
3.10.2007 11:37am
frankcross (mail):
Well, I figured aside just meant not necessary to explain the outcome. Law profs criticizing journalism for debatable inaccuracies of language seems a little odd to me. In fact, I bet an expert law prof could find at least something wrong with every newspaper article ever written about a case.

Maybe "aside" was not the best choice of words but by that standard, you could probably tear apart everything in every newspaper, given enough knowledge.
3.10.2007 12:19pm
Hattio (mail):
App Soc Res,
That's funny, I just heard the NPR coverage (I'm assuming it's the same though I'm in AK), and didn't notice the implication you did; ie., that few extremists paid any attention to the individual rights interpretation. As a matter of fact, the woman interviewed said something along the lines of all the cases have gone the way of the gun control advocates and they got comfortable assuming they would continue to win. That indicates to me that these issues are being litigated fairly frequently, and the gun rights folks are typically losing. Which I think is pretty accurate.
3.10.2007 12:50pm
AppSocRes (mail):

The segment is here:

We have different, defensible interpretations of the slant, but after re-listening, I still think mine is closer than yours.
3.10.2007 1:40pm
Retiree (mail):
I believe that overall, gun rights advocates are winning the battle. 23 states have passed right to carry laws 15 or so years, increasing from 15 to 38.
3.10.2007 2:21pm
I have never in my 20 years of practice ever read a newspaper article that accurately summarized the facts of trial, verdict, or appeal in which I have been involved.

Never, not once.

I don't know why this would be a surprise to anyone.

Also, we should keep in mind that most lay readers have a general idea of what an "aside" is but far fewer would know what the word "dicta" means.
3.10.2007 2:59pm
Hattio (mail):
I don't deny there's a slant. But the only person making it seem that this ruling came out of left field was the representative of the Brady Center. And well, he is the representative of the Brady Center.
3.10.2007 3:02pm
Hattio (mail):
Gun rights advocates are clearly winning the battle. But prior to now, they've been winning in the Legislatures, not in the courts. This is significant, because it prevents local municipality laws from unduly restricting those laws passed by legislatures (especially in states where the law doesn't contain its own restrictions on the ability of municipalities to pass restrictions).
3.10.2007 3:07pm
Dilan Esper (mail) (www):
I disagree with Professor Volokh. As a practicing lawyer, anything that is not necessary to the appellate judgment is dictum unless it is specifically referred to as part the holding, or as an alternate holding, or (as in the case of qualified immunity or subject matter jurisdiction, for instance), there is authority that says you need to resolve something as a threshold matter before resolving something else.

I am not sure how much time Professor Volokh spends practicing in the trial courts, but these questions of what authority needs to be followed and what authority can be disregarded are generally resolved in trial courts and are thus not really an issue that can be debated as legal theory. If trial judges can be convinced not to heed something an appellate court says, it must be a dictum.
3.10.2007 5:58pm
regarding the MSM, i think the bias is clear in the language such that you almost never read of "gun rights opponents" in regards to supporters of DC style laws. they are referred to as gun-control advocates etc.

whereas supporters of gun rights are often referred to as gun-control opponents.

this is one of the few (if not the only) civil rights issue that the MSM refuses to address as such. it is in regard to a right in our bill of rights, and in most (if not all) other cases (4th, 5th, 6th, 1st), the MSM refers to civil rights advocates, free speech advocates, civil liberties supporters, etc. but not in regards to the 2nd
3.10.2007 6:10pm
>Thus, 42 of 55 pages in the opinion "embrace[] the >individual-rights view of the Second Amendment." That is "an >aside"?

I am speaking from ignorance (apparently like the Times), and have not read Emerson but I can't help but feel this should be a lesson to the law clerks and judges out there who like to produce lengthy opinions. Would this type of misportrayal have happened if the opinion was a terse but complete fifteen pages long. Perhaps, but it certainly wouldn't have been as likely.
3.11.2007 3:34pm
This is probably the biggest issue where the MSM and the legal professoriat (for the most part) are aligned against the perceived wackiness of the "gun lobby." I'm glad VC can offer an effective counterpoint in its coverage. I also credit Tony Mauro for his balanced take in the Legal Times. Sadly, the coverage in the WaPo and NYTimes is probably beyond hope.

As for the "long decision leads to misinterpretation" point, I think it's well put with respect to media commentators. But for an issue of this magnitude, the court probably wants to make sure that the Supremes have all the relevant reasoning, etc., before them. Since this is not an unlikely case to go to the Court, I think it's quite defensible to write a longer-than-usual opinion.

Has anyone heard if a Presidential candidate has been asked about gun rights in the the wake of this decision? What will be Rudy's reaction?
3.11.2007 4:13pm
juris_imprudent (mail):
Would this type of misportrayal have happened if the opinion was a terse but complete fifteen pages long.

It would be nice to think so, but I wouldn't bet on it. Consider U.S. v. Miller: not even 5 pages and under 3000 words and the 9th Cir (Hickman v. Block) not only failed to grasp the relevant legal issues, they couldn't even get the facts straight (e.g. asserted that the Supreme Court upheld a conviction).
3.11.2007 9:36pm
Shelby (mail):
I seem to recall that there was a case called Marbury v. Madison in which "[t]he Court determined that the applicant had a vested legal right in his appointment. . . . The Court found that because the applicant had a legal title to the office, the laws afforded him a remedy. However, the Court held that § 13 of the Act of 1789, giving the Court authority to issue writs of mandamus to an officer, was contrary to the Constitution as an act of original jurisdiction, and therefore void."

Per the Post, is the power of judicial review a non-binding "aside"?
3.12.2007 1:46pm