I've heard some people argue that the Ninth Circuit's holding (in Nordyke v. King) that the Second Amendment is incorporated against the states was "dictum" -- and thus not really legally binding, even on district courts in the Ninth Circuit and other panels of the Ninth Circuit -- because the court went on to hold that the Second Amendment (even as incorporated) doesn't preclude the ordinance involved there, which was a restriction on gun possession on county property. (Likewise, people made the same argument about the Fifth Circuit's pre-Heller holding in United States v. Emerson that the Second Amendment secures an individual right, but doesn't preclude the particular statute involved in that case.) The conclusion that the Second Amendment binds state and local governments, the argument goes, isn't really necessary to the result because the court could have reached the same conclusion by simply assuming without deciding that the Second Amendment is incorporated. Therefore, the incorporation conclusion is mere "dictum."
I think this is a mistaken conception of dictum, but much scholarly (and some judicial) ink has been spilled on the theoretical question of how dictum should be defined. Instead, I just wanted to repeat something I said earlier (in the Emerson context): If Nordyke v. King is dictum, then some extremely important Supreme Court rulings are dictum, even though they have to my knowledge never been treated as such. Here are three:
1. Jackson v. Virginia (1979). Jackson claimed that there was insufficient evidence to convict him in his state trial, and that she had a federal Due Process Clause right to have her conviction reversed on these grounds. To resolve this question, the Court first had to figure out whether the Due Process Clause secured such a right (a matter that was quite unresolved at the time, and that was contested by the Virginia prosecutors). The Court addressed this in some detail, and concluded that the Due Process Clause secured such a right. But it concluded that the right was limited in scope: The Due Process Clause is violated only if "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." This condition wasn't satisfied in this case, so Jackson lost.
2. Strickland v. Washington (1984). Strickland claimed that his lawyer provided ineffective legal assistance, and that this violated the Sixth Amendment right to counsel. To resolve this question, the Court first had to figure out whether the Sixth Amendment secured such a right (likewise, a matter that was quite unresolved at the time). The Court addressed this in some detail, and concluded that the Sixth Amendment secured such a right. But it concluded that the right was limited in scope: The Sixth Amendment is violated only if "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "[j]udicial scrutiny of counsel's performance must be highly deferential . . . [--] a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" This condition wasn't satisfied in this case, so Strickland lost.
3. Yesterday's Safford Unified School Dist. v. Redding. Redding claimed that she was entitled to damages for violation of the Fourth Amendment, because a near-strip-search at school violated her Fourth Amendment rights, and those rights were well enough established that the defendants didn't have qualified immunity against damages. To resolve this question, the Court first had to figure out whether her Fourth Amendment rights were indeed violated. The Court addressed this in considerable detail, and concluded that there was indeed a Fourth Amendment violation. But it concluded that the rule wasn't well enough established, so Redding lost. (If you think that for some reasons qualified immunity cases are a different category, even after reaching the merits first became optional with the demise of Saucier v. Katz, then ignore this example and focus on the three others.)
4. Everson v. Board of Ed. (1947), an incorporation case. Everson claimed that a particular government policy violated the Fourteenth Amendment, because the Fourteenth Amendment incorporated the Establishment Clause against the states, and the policy violated this incorporated Establishment Clause. To resolve this question, the Court first had to figure out whether the Fourteenth Amendment did indeed incorporate the Establishment Clause. The Court addressed this fairly briefly, and concluded that the Fourteenth Amendment did incorporate the Establishment Clause. But it concluded that the Establishment Clause didn't bar all evenhanded government benefit programs that covered religious schools as well as secular schools. The threshold for violation of the Establishment Clause wasn't met in this case, so Everson lost.
5. So now we have Nordyke, another incorporation case. Nordyke claims that a particular government policy violated the Fourteenth Amendment, because the Fourteenth Amendment incorporated the Second Amendment against the states, and the policy violated this incorporated Second Amendment. To resolve this question the Ninth Circuit panel first had to figure out whether the Fourteenth Amendment did indeed incorporate the Second Amendment. The court addressed this in considerable detail, and concluded that the Fourteenth Amendment did incorporate the Second Amendment. But it concluded that the Second Amendment gives the government a fairly free hand to restrict gun possession on government property. The threshold for violation of the Second Amendment wasn't met in this case, so Nordyke lost.
My point is simply that all five of these examples (perhaps with the exception of item 3, if you think qualified immunity cases are somehow different) are on par with each other. If you think that Nordyke's incorporation discussion is dictum and not strictly binding, the same would have been true of all the other cases, at least until the first decisions actually finding liability under those cases were reached. But, as I said, to my knowledge no-one has treated the core legal reasoning of Jackson, Strickland, and Everson as dictum. Nor should they do the same as to Nordyke.
Without taking a position on the underlying question of whether Nordyke's incorporation holding should be considered mere dictum, I wonder whether your analysis takes into account the different institutional roles of the Supreme Court and the circuit courts of appeals. The Supreme Court's role is primarily to resolve the precise legal questions that it has carefully chosen to place on its docket. The courts of appeals, on the other hand, are primarily charged with resolving individual appeals. Thus, there is a far greater institutional interest in the latter resolving cases on the narrowest possible ground than the former.
A good example is a case like Jackson v. Virginia. It would be nonsensical for the Supreme Court to exercise discretion to take cert on such a case and then resolve it on fact-specific grounds without resolving the very legal question that it took cert to consider. By contrast, there is little reason why a court of appeals, faced with an appeal that loses because of bad facts no matter what legal standard is to be applied, would grapple with such questions.
Again, I am not taking a position on the propriety of what Nordyke did. But I cannot agree with your conflation of Supreme Court and circuit court decisions in this respect.
But judges who want to ban guns will claim that the panel didn't have to figure that out.
It doesn't really matter if the decision was dicta or not. It only matters if other judges will treat it like dicta. Multiple judges have already declared that such decisions are dicta and that they won't respect them. As far as I know there is nothing to force them to respect such decisions. They can ignore them if they want to. Thus it is effectively dicta if they say it is. Though it is possible that some judges will consider it binding who might have ruled otherwise. But since Nordyke arguably bucks binding Supreme Court precedent anyway, they may feel even less bound by its holding.
Multiple judges have already declared that such decisions are dicta and that they won't respect them. As far as I know there is nothing to force them to respect such decisions.
If a district court in the circuit ignores circuit precedent then likely they'll get reversed and remanded. I think that is the enforcement mechanism.
Someone finally cited an case highly relevant for the Ninth Circuit. In United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (en banc) the court held in part:
And I understand that this may play a more prominent role when delineating between binding and persuasive authority – but it seems to me that pretty much all authority is merely persuasive authority when judges end up ruling however they want and then differentiating previous cases on very narrow grounds when the situation requires it.
That sounds to me more like a lack of an enforcement mechanism. In other words, if a lower court deviates from precedent, a higher court can overrule the lower court. But that situation is no different than if there was no precedent. There doesn't seem to be any punishment for defying precedent.
I suppose if a judge defied precedent too often he could be impeached. It might also hurt a judges chance of being promoted - or help in some cases. Perhaps a judge could be held in contempt by the higher court. That seems highly unlikely though. Especially in a case where there is debate about whether the precedent really was binding or not.
You can see this with alternative holdings. For example, imagine that P sues D, and needs to prevail on two arguments to win: The first is procedural (say, standing), and the second is substantive. You're the judge, and you think D wins on both grounds. You could write the opinion ruling for D on the procedural ground, or you could write the opinion ruling for D on the substantive ground. If you do either of these, the rulings will be holdings, not dicta. So far, so good. Now imagine you happen to rule on both issues. They are still both holdings: It's not like they are each transformed into dicta just because neither discussion is critical to the outcome. The same goes for if you ruled in favor of the plaintiff on one ground and in favor of the defendant on another. Each conclusion would still be a holding, not dicta.
I am curious about your hypothetical. If the judge ruled that the plaintiff lost procedurally (say, on standing) but also ruled on the merits, wouldn't the merits ruling be dicta since, absent appellate court reversal of the standing issue, it is not binding?
"Dictum is in the eye of the beholder" and "dictum is as dictum does."
The reason not to give effect to ACTUAL dicta (i.e., not the considered holdings or alternate holdings that Professor Volokh is talking about) is because the Court is ruling on other cases without the facts in front of them.
Here's an example. In US v. Verdugo-Urquidez, the issue was whether a warrantless search and seizure by US agents in Mexico was barred by the Fourth Amendment. This turned on whether the Fourth Amendment applied overseas. The Court held that it did not.
As part of his discussion, Rehnquist noted the Johnson v. Eisentrager case and said that even the Fifth Amendment didn't apply overseas.
The problem with giving that statement effect is that the Verdugo court didn't have an outside US borders Fifth Amendment claim before it, so there was no briefing or argument or information as to what sorts of claims under the Fifth Amendment would be unavailable if the Court barred such claims. In contrast, the Court had a full record before it as to what the implications would be if the Fourth Amendment were held to apply or not to apply outside US borders.
So, by treating Rehnquist's statement as dictum, we allow lower courts to develop records and have briefing and argument that will illuminate the Fifth Amendment issue, whereas if we gave Rehnquist's statement full effect it would mean that the issue had been ruled upon by a court without a record in front of it or any exploration of the implications of the decision.
I'm not sure there's anything that can or should be done. The only reason judges are "bound" by precedent from higher courts is that they say they are. If a judge were to find that he was not "bound" by a higher court ruling he wouldn't be violating any law.
On the other hand, in Everson and in Nordyke, there's absolutely no connection whatsoever between the incorporation q and the scope q (at least given the decision to make the substantive scope identical if incorporation is found). Because of that, the incorporation discussion is unnecessary to the decision. Thus, as far as matters of judicial hierarchy go, I would have had no problem w/ a lower ct declining to follow Everson's incorporation holding for the short period until the SCt definitively applied the EC to the States.
Court opinions
Opinions of all courts, majority, concurring, or dissenting, shall be signed by each judicial officer participating, and all decisions and opinions shall be published except for state secrets. The summary, findings, orders, and commentary shall be clearly separated and labeled as such.
Now enforcing such a rule presents a problem, but surely we can encourage judges to use such a writing standard.
Correct, my point, building on some of the others, was that both dicta and non-dicta are binding because both higher and lower courts say they are. But it's kind of bootstrapped, right? Lower courts have to follow precedent because higher courts say they do. But if a lower court were to find that the law required him to rule based on, say, the text of a statute and not a higher court precedend, I'm not sure how you'd say he was wrong.
See How stare decisis Subverts the Law.
I was curious about the habit of calling obiter dicta simply "dicta".
Well, here you have an intervening event that changes the law (and also binds the higher court). It is well settled (I hate that phrase but it works here) that a trial court has to apply a statute adopted after the court decision that otherwise would have bound the trial court.
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The appelate courts may issue a rule that is broader than the case before them, but they will cut back their previous ruling in the next case because the facts before them don't quite fit the assumptions underlying the previous ruling. Moreover, district courts somtimes do that too when they look to the ratio decidendi of the previous decision to figure out the correct result in the case before them.
Are you in favor of having everything handled on a case-by-case basis? That might get us better law in the long run, but it would take more time, cost more money, and use up scarce judicial resources than an approach in which a court uses a specific case to lay down a general rule that gives guidance as to a predictable outcome. (I am not arguing that one approach is always right and another is always wrong; I am just laying things out as I see them.)
I'm not sure I know what the right answer is, I'm just pointing out that courts aren't really "bound" in any sense of the word, at least as I understand it. The constitution requires them to follow the constitution and statutes created under the constitution, but nothing other than judge-created rules requires them to follow the ruling of a higher court on the same question in a different case.
Although there are many legal concepts that can be very tricky and nuanced, dictum is not one of them as long as you have a basic, fundamental knowledge of the process an appellate judge uses in arriving at an opinion. In each case, there is a specific order in which an appellate court must determine issues -- think of these as hurdles which the court must jump over before it can arrive at the next hurdle.
Take, for example, a personal injury / negligence case. Assume the plaintiff obtained a jury verdict and the defendant is appealing. The appellate court may have to review and decide the following issues: 1) jurisdiction to hear the appeal (did the defendant appeal on time)? 2) did the plaintiff have proper standing to sue? 3) plaintiff's claim not barred by the statute of limitations? 4) did defendant owe a duty to plaintiff? 5) did defendant breach his duty to plaintiff? 6) was the damages award excessive?
The issues above must be decided in that specific order. If the answer to any of the above questions is "yes," then the court gets to move on and answer the next question. If the answer to any question is "no," that ends the discussion. So in the above example, the appellate court may decide that it has jurisdiction to hear the appeal, the plaintiff has standing, the complaint was filed within the limitations period, but the defendant did not owe a duty to the plaintiff. Every issue that was decided in order to arrive at that duy question is valid analysis -- not dicta. It is not a valid argument for one to say that the standing issue, for example, is dicta because it played no role in the court's determination that the defendant did not owe a duty to the plaintiff. On the other hand, if the court were to move on to the issue of breach of duty and say, "even if the defendant owed a duty to plaintiff, we don't think a breach occurred" THAT would be dicta.
Suppose you are a trial judge handling a case in which a certain issue arises, and you discover that your appellate court had issued a ruling, in another case involving the same issue, that you think is just plain wrong. Suppose further that you cannot find any fact difference from which to distinguish the earlier case. What would you do?
Reminds me of the concept of standing in Silveira v. Lockyer
Its hard to see how this could be construed as dicta. Also, wasn't the incorporation of 2A the very issue on appeal? It seems a stretch to say that something is dicta when that particular topic is the very reason the court is hearing a case in the first place. When a court addresses the very issue that the appellant is raising its hard to see how that can be dicta. The only exception I can think of is when the case is adjudicated on procedural grounds/justicibility and the substative issue gets mentioned in passing. Other than that I can't see it or at least it would be the rare excpetion.
Well, I'm the kind of guy that would find that since the constitution and laws under it are the supreme law of the land, and the judicial power of the appelate court only extended to the case or controversy involved in the previous case, and therefore I was required to follow the law/statute as I saw it, not the previous decision. And then sit back and watch. 'course that probably explains why I'm not a judge.
IIRC I believe Judge Pregueson(sp?) said he would do the same thing in some cases in his confirmation hearings.
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Incorporation may have been an issue, and if so, it needs to be discussed. However, the decision, the outcome, does not depend on which way this discussion turns.
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Likewise for "individual" vs. "collective." That issue had to be discussed because the United States Supreme Court handed down a ruling in Heller (the right is individual) that expressly reversed the grounds for the previous decision. But here, as with "incorporation," the ultimate decision in this case is unchanged even though the grounds for the decision have shifted from "not an individual right" to "the fairgrounds are a sensitive/protectable space."
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Courts routinely engage in speculation beyond the case, see the majority in Heller discussing the 1934 NFA/Miller, felons in possession, etc., which is completely unnecessary to the case in hand, and which is treated as "the law," "conclusive pronouncement by SCOTUS," as Circuit Courts handle current cases (e.g., Hamblen, currently before the 6th Circuit).
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"Is it dicta or not" is an academic discussion. The contents of precedent are whatever the Court says. They may, as a matter of objective fact, be wrong. But their ruling still binds -- they are always right, by definition.
They are not right by definition, they are right to the extent that the other courts say they are bound. Being a "higher" court only means that they have appealate jurisdiction in individual cases.
Exactly. Heller, in fact, gives a spectacular case of powerful obiter dicta. The Scalia footnote about the effects of his ruling for various gun control laws was surely not part of the holding, but every lower court in the country that has examined the issue has referred to that footnote as if it was precedent.
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They are right to the extent that they CLAIM the other courts say they are bound. IOW, if a lower court takes material that is obviously obiter dicta, and characterizes it as compelling an outcome, then for the case in hand, the "obiter dicta" is transformed to "binding precedent."
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For example, a court may discuss the second amendment in a parade permit case, in fact, it may be forced to discuss it if the defendant says "the second amendment protects the right to conduct a parade." In the course of this discussion, the deciding Court (besides saying "this isn't a 2nd amendment case") may say that the 2nd amendment does not bind the states (but the even so, states aren't free to prohibit keep and bear arms).
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A future court may look at this parade permit case, and lift from it a phrase "the 2nd amendment does not bind the states", and use that as COMPELLING a ban on keep and bear arms, in upholding a state or city ban on possession of firearms.
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The decision is "right" because the Court is not wrong unless expressly reversed.
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One point of view is that "core legal reasoning" and "dicta" are mutually exclusive sets. If that is so, then one can look for the core legal reasoning - on what grounds did the court base its decision? In Nordyke, those grounds were that the county property was akin to the sensitive space described in the Heller case.
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That the 9th Circuit discussed the 2nd amendment is inevitable, in that Nordyke raised the 2nd amendment as protecting a right to conduct a gun show. And IIRC, Nordyke lost this point in a previous decision, on the basis that the 2nd was a collective right. With that rationale being "gone" for disposing of the 2nd amendment argument, the 9th Circuit had to provide new rationale for rejecting the 2nd amendment challenge. That rationale is -NOT- that the 2nd amendment has been incorporated.
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I'm quite interested in how the 9th handles Nordyke as it ponders rehearing the case, and issuing a revised decision.
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On the "academic" point, "core legal reasoning" and "dicta" have substantial overlap. Deciding courts are not bashful about converting dicta into binding precedent.
These are examples of the misconceptions of dicta I posted about earlier. Whether the plaintiff or the defendant is the ultimate winner in a case is completely irrelevant for purposes of dicta (likewise whether a statute is upheld or invalidated in the end is completely irrelevant).
Here's an example to try to conceptualize this. Say a citizen sues their local police department for negligence claiming that the PD breached its duty to her by taking too long to show up to her house after calling 911, and she was damaged because an intruder shot her. In a landmark ruling, the Supreme Court holds that the police department owes a duty to the citizen to protect her from intruders. But, the Supreme Court also finds under the facts of the case that the police department did not breach any duty to the citizen because the time it took them to show up to the house was reasonable. So, in the end, the result for the citizen is exactly the same as it would have been if the Supreme Court continued prior precedent holding that the police don't owe a duty to protect citizens. Under your theory, the Supreme Court's holding regarding the police duty would be dicta. But that theory misconstrues dicta, and the Supreme Court's holding would most definitely NOT be dicta.
(Quoting the syllabus, just because it's such a cool case.)
-- Whether the plaintiff or the defendant is the ultimate winner in a case is completely irrelevant for purposes of dicta (likewise whether a statute is upheld or invalidated in the end is completely irrelevant). --
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That wasn't at all the distinction I had in mind with my "the ultimate decision in this case is unchanged" and "the decision, the outcome, does not depend on which way this discussion turns."
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Taking only the decision in hand, only the appellate case, and without regard to what the decision is -- my analysis was that certain discussions in that single opinion could be completely cut out of the decision, or if kept in, turning (the detail discussion) in the opposite direction and have no impact on the outcome of that single case.
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In many cases, a discussion is necessary because it is the grounds asserted by appellant. For example, an appellant may assert that the right to conduct a rock concert is protected by the 1st amendment, and that the city can't require a permit. The Court will necessarily discuss the 1st amendment, if only to conclude "permitting for large gatherings is a police power, and does not infringe the 1st amendment right to assemble, or the 1st amendment freedom of speech." If the court continues on in 1st amendment discussion, it is unnecessary to the outcome of this case, but if the court said, "the 1st amendment does not bind the states, it only binds the feds," that statement is irrelevant to the grounds for decision - permitting large gatherings is a police-power function.
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In that case, I would agree that "police have a duty" is NOT dicta. It is a necessary part of the basis for the decision; without the duty in the first place, there would be no analysis of what constitutes a breach.
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But in the Nordyke case, "2nd is incorporated" is not essential. The Court could as easily say, "Nordyke argues that the 2nd is incorporated, and we need not reach that question, because we decide on other grounds." What the 9th could not avoid, in light of Heller, was its own previous basis for rejecting the 2nd amendment challenge - that the 9th was a collective right (implying, FWIW, incorporation of a collective right even in CA). This part had to be expressly taken back in order to not be afoul of Heller.
But now that they didn't say that, but instead examined and decided the issue, their answer is not obiter dicta.
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As an academic matter, I disagree. My disagreement is based on the point that the "incorporated" conclusion is irrelevant to the decision. It is not in any way shape or form "core" or even a part of the decision-chain.
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As a practical matter, whether it is obiter dicta or binding precedent is unknown until another court takes it up and labels it. I do agree with you, the fact that they took it up and discussed it makes it look like it is an important rule of law in the 9th. See too, SCOTUS discussing Miller in the Heller case - not at all relevant to the case at hand, but even so, it is being labeled "binding precedent."
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As far as I can tell, all 2nd amendment jurisprudence since about 1940 is outcome-oriented. Defendants are forbidden from even raising the 2nd amendment at trial. The Courts use a misread of Miller to foreclose the argument (that Miller says "a weapon that has a use for the common defense or in a militia is protected") at trial. IOW, Courts FORBID TELLING THE TRUTH about a binding precedent.
Gosh, those seven attempts to amend the Constitution since 1871 to make the the establishment clause binding against the states was in vain.
Thought: traditionally, a court's expressed reasoning (and even 'we told today that...') doesn't bear upon its holding, but wouldn't the holding differ between--
14th amendment incorporates 2nd, but is subject to reasonable restriction, and this ordinance is such; vs
This ordinance wd be a reasonable restriction of any right that might exist, so we have no need to determine if there is any such right.
In that case, I would agree that "police have a duty" is NOT dicta. It is a necessary part of the basis for the decision; without the duty in the first place, there would be no analysis of what constitutes a breach.
consistent with this:
But in the Nordyke case, "2nd is incorporated" is not essential. The Court could as easily say, "Nordyke argues that the 2nd is incorporated, and we need not reach that question, because we decide on other grounds."
Without finding that the 2nd is applicable in the first place, there would be no analysis of whether it has been violated.
Maybe, I'm misunderstanding what your argument is, cboldt. Are you saying that the court could have said, "there is no need for us to consider whether the 2nd is incorporated because even if the 2nd did apply here the ordinance does not violate the 2nd"? Or are you saying the case could have been decided on some other grounds unrelated to the 2nd Amendment that I'm not aware of?
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The 9th Circuit had to find the 2nd applicable to the extent that it was a basis for standing. It had previously held that Nordyke lacked standing to raise a 2nd amendment argument at all, because he was not a member of a collective that was protected by the 2nd amendment.
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-- Are you saying that the court could have said, "there is no need for us to consider whether the 2nd is incorporated because even if the 2nd did apply here the ordinance does not violate the 2nd"? Or are you saying the case could have been decided on some other grounds unrelated to the 2nd Amendment that I'm not aware of? --
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There's no way to make the argument "unrelated to the 2nd amendment," any more than the Presser Court could have said that Presser's claim "the 2nd amendment protects the right to conduct an armed parade on public property" is unrelated to the 2nd amendment. The relationship exists because defendant asserts the amendment as memorializing or conferring a specific right.
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But just because defendant claims the case turns on the 2nd amendment doesn't make it so, as a matter of law. My argument is that the 9th Circuit can reach its conclusion that cities may regulate Nordyke in this "as applied" situation (a permit for a gun show) as not being an as-applied violation of the 2nd.
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I think the Nordyke case was resolved as a matter of police power / public safety; that carrying a gun does not create a license to go everywhere (hey, you can't keep me out of the military base, I'm carrying a gun and your blocking my entry violates my right to bear arms!).
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I likewise think the dicta in Heller, about restricted spaces, describes a boundary between police power and RKBA. So would a law that limited the location of storage of massive amounts of explosives, ala "zoning."
The difference is that in the "police have a duty question", the 2nd conclusion is dependent on the first. It is impossible to determine the scope of the police's duty without determinining whether or not they have a duty. But you can determine whether restricting firearms on fairgrounds is resonable under the 2A without determining whether or not the 2A applies to the states.
And that determination would be dicta, because a court should never reach the merits of whether an ordinance violates a constitutional provision unless it has satisfied itself that the constitutional provision is applicable.
Just like with any standing issue, a court should not fail to decide the standing issue by peeking ahead to the next issue and seeing that the plaintiff loses anyway so why bother considering whether the plaintiff has standing.
-- because a court should never reach the merits of whether an ordinance violates a constitutional provision unless it has satisfied itself that the constitutional provision is applicable. --
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Courts frequently discuss "the merits" without reaching a conclusion on that basis. I'd point to Presser again, where it discussed the RKBA and separately, the 2nd amendment (both "on the merits" of defendant's argument), even though the case was not a RKBA case, it was a parade permit / police power case.
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In the Presser case, the parade permit law was upheld against 1st and 2nd amendment challenges, even though the Court held that the 1st and 2nd amendments did not directly apply to the states.
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IOW, the Presser Court ruled the constitutional provision inapplicable, and also ruled the (parade permit) ordinance did not violate the 2nd amendment. It noted that an ordinance prohibiting keep and bear arms WOULD run afoul of the 2nd amendment, but a parade permit ordinance does not prohibit keep and bear arms.
The second half of your statement is a classic example of dicta. Court's should not announce rulings for hypothetical situations not in front of them. What Presser was really saying was, "Hypothetically, even if the 2nd Amendment did apply to Illinois legislative acts, we do not think that the ordinance at issue infringes the RKBA."
No, it didn't. It said, "the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." The Court was saying that the states could not prohibit the RKBA, not because of the 2nd Amendment, but because that prohibition infringed on the federal government's ability to maintain a military force, due to the fact that at that time, all citizens capable of bearing arms were considered part of the reserve military force.
If the Court really meant that "an ordinance prohibiting keep and bear arms WOULD run afoul of the 2nd amendment" it would have been directly contradicting itself regarding the applicability of the 2A against the states.
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Good point. What the Presser court said was that a state prohibition on keep and bear arms could not be tolerated by the feds, even if the 2nd amendment was not in place.
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So too, my "the Presser Court ruled the constitutional provision inapplicable, and also ruled the (parade permit) ordinance did not violate the 2nd amendment" should be "the Presser Court ruled the constitutional provision inapplicable, and also ruled the (parade permit) ordinance did not violate the RKBA." (and I agree, this is dicta - but necessary to discuss because Presser said the 2nd protected a right to parade with arms)
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It's a coincidence that the 2nd amendment covers the same ground, as a sort of "belt and suspenders" provision, preventing the feds themselves from prohibiting keep and bear arms. Either way, the Presser case stands for the proposition that prohibiting keep and bear arms is out of bounds.
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And yet, the Circuit Courts claim that Presser is binding precedent that compels upholding state/local laws banning possession of firearms.
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— due to the fact that at that time, all citizens capable of bearing arms were considered part of the reserve military force. —
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This is still roughly true. Militia = "only organized militia" is a common shorthand fallacy.
I'm on board with you that Presser has been misconstrued. I also think Presser is misinterpreted when people claim that it only rejected incorporation of the 2A through the privileges and immunities clause, but not through the due process clause. The way I read the opinion, it clearly also rejects incorporation through the due process clause.
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I agree. Presser isn't helpful to find the feds conferring a RKBA to the people via the 2nd amendment, period. I read it as stating the propositions that the feds may not prohibit RKBA, on account of the 2nd, and the feds will not tolerate the states prohibiting RKBA because it deprives the feds of a resource.
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But the case was decided on grounds other than rights of the people as described in the 1st or 2nd amendment (right to assemble, right to petition for redress, RKBA)
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