D.C. Circuit Accepts Individual Rights View of the Second Amendment,

strikes down D.C.'s gun control law. The opinions in the 2-1 decision, which I haven't read yet but which I will blog about later today, are here. Thanks to How Appealing for the pointer.

I doubt that this will get reversed by the entire D.C. Circuit sitting en banc, though such a reversal is not impossible; the D.C. Circuit is relatively conservative, and conservative judges have historically had different views on this question, as they have recently had on free speech, jury trial, and other constitutional rights. (Recall that Chief Justice Burger, who was indeed quite conservative, expressly took the collective rights view in public statements, though that was before the recent spate of scholarship on the Second Amendment, and before the modest turn towards libertarianism — at least as to enumerated rights — of modern conservatism.)

And if the D.C. Circuit decision survives a call for rehearing en banc, it seems to me that the Supreme Court will indeed agree to hear the case: There would be a square split between the D.C. and Fifth Circuits on the individual right side and several other circuits on the collective right side, a decision based on the individual right in favor of the challenger (so that the District can sensibly appeal), and what looks at first glance to me like a clean procedural posture (summary judgment for a plaintiff).

UPDATE: Several colleagues of mine at Mayer, Brown, Rowe & Maw, at which I'm a part-part-part-time academic affiliate, are representing the Violence Policy Center as amicus in support of the D.C. gun ban; I have been entirely uninvolved in the case, but I thought I would notice my colleagues' participation.

Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election:

Say that the D.C. Circuit decides not to rehear the case en banc; that probably means the en banc petition will be denied within several months. Assume that it's denied by late June — the petition for certiorari will be due in late September, the Supreme Court will consider it in the next month or two (unless it decides to call for the views of the Solicitor General, but I doubt this will be necessary). That means the case will likely be heard in early 2008, and decide by June 2008.

What will the extra prominence of the issue do to the primaries?

Assume the decision is 5-4 in favor of the individual rights theory; what will that do to the general Presidential election race? Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side — what will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right? Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down?

Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect. And if the case is delayed (say, by en banc activity, by a call for the views of the Solicitor General, or the like) so that it's heard in Fall 2008 and expected to be decided in Spring 2009, I take it the effect on the election would be bigger still.

Finally, note that if there is a pro-individual-rights decision from the Supreme Court, I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations.

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.

Key Excerpts from the D.C. Circuit Second Amendment Decision:

The whole decision is much worth reading, and, except for the standing issues, quite nontechnical. It's also hard to boil down, since the argument's components are closely integrated. Still, here is what seems to me to be the best very short excerpt:

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right — “the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” — indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all — e.g., “the states.” These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions....

The District points to the singular nature of the Second Amendment’s preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it.

We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well-regulated militia — even bearing in mind the breadth of the concept of a militia [which the court had earlier concluded “was a large segment of the population” rather than just a government-selected National Guard-like subgroup -EV] — is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias....

[I]f the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit — and thus the most appropriate to express in a political document.

Submissions in the D.C. Circuit Second Amendment Case

are available here. It looks like a pretty comprehensive set, and includes amicus briefs.

The D.C.-Is-Not-a-State Argument:

The dissent in the D.C. Circuit Second Amendment case relied chiefly on the theory that, because D.C. is not a State, the Second Amendment — which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" — "does not extend to [D.C.]" She argues that the reasoning of Miller v. United States so commanded:

[Miller held]:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Id. at 178 (emphases added). Then, quoting Article I, § 8 of the Constitution [specifically, the Militia Clauses -EV], the Court succinctly — but unambiguously — set down its understanding of the Second Amendment: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee

of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. Construing its two clauses together so that, as Miller declares, the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States, I believe that, under Miller, the District is inescapably excluded from the Second Amendment because it is not a State.

The trouble with this reasoning, it seems to me, is that Miller did not hold that the continued vitality of the Militia "is required to safeguard the individual States." Miller talked about the Second Amendment's being aimed at preserving the Militia, which Miller held "comprised all males physically capable of acting in concert for the common defense" (and who, at the Framing, "were expected to appear bearing arms supplied by themselves"). It said nothing about the Militia being required to safeguard the States. And the Militia as understood by Congress (from 1803 to the present) included the citizenry of D.C. as well.

Nor does the reference of a "a free State" exclude D.C.; as the majority points out, "a free State" likely meant what Madison originally wrote, "a free country" ("State" being a common term for country as well as for an individual state). The prefatory clause thus refers to protection of a free country — and it makes sense that the operative clause speaks of the right of "the people," not of state citizens or even of the militia, because it too refers to the people living in this country, including in D.C. and in the territories (recall that the Northwest Territory was an important part of the 1791 United States).

This does leave an interesting question that neither opinion seemed to discuss: The Militia Clauses of article I, section 8 read:

Congress shall have Power ...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Does it follow that there may not constitutionally be any Officers or training for any militia in the District of Columbia and the Territories, since while Congress is free to organize, arm, and discipline the Militia everywhere, only the States may appoint officers and train the militia, and no State has jurisdiction in D.C. and the Territories? I doubt it; I would think, as did Congress in 1803, that the Militia — the armed citizenry — can exist and can be officered and trained throughout the breadth of the country. (Perhaps Congress's power to officer and train the D.C. militia comes from the Seat of Government clause and the Territory Clause, which wouldn't be limited by the "reserving to the States" proviso.) And if I'm right, then that's evidence that the citizenry has indeed long been understood as having a right to have arms even in D.C. and the Territories.

The Unusual Suspect:

Check out the state and city amicus briefs in the D.C. Circuit Second Amendment case on the individual rights side and the collective rights side.

On the individual rights side: Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Texas, Utah, and Wyoming — makes sense, since they are all gun country states (not necessarily red states, but many blue states and blue state politicians support gun rights).

On the collective rights side: Idaho, Maryland, Massachusetts, New Jersey, Boston, Chicago, and New York City. Mostly makes sense — all have relatively heavy gun regulations, all either lack a state constitutional right to bear arms (Maryland, New Jersey, New York), have a state right that has been interpreted as collective (Massachusetts), or have a state individual right that is written and has been read very narrowly (Illinois).

Except one: Idaho, a solid gun country state, with an individual right to bear arms in its state constitution, precedent enforcing it, and even precedent applying the Second Amendment as an individual right to the states (though contrary to the Supreme Court's then-relatively-fresh Cruikshank decision, which held that the Second Amendment didn't apply to the states). True, the precedents are old, but Idahoans' support of gun rights seems to remain current, and the Idaho Attorney General who signed on to the brief — Lawrence Wasden — is a Republican with an A- rating from the NRA.

What's the backstory here? Does AG Wasden simply have firm views on the Second Amendment that he wants to prevail as a matter of legal principle? Does he solidly believe in self-government for D.C., and doesn't want to unduly shackle the D.C. voters' representatives? Is there some personal connection between him and the other states' AGs that led him to try to help a buddy? Inquiring minds want to know.

Thanks to reader Fredrik Nyman for prompting me to post this.

UPDATE: The D.C. Circuit docket sheet reports that Idaho withdrew from the brief. Alan Gura, one of Parker's lawyers reports that "Idaho withdrew its support of that brief, stating that it was in error." Matthew Bower reports (though without claiming 100% confidence) that "The directive to withdraw Idaho's support came directly from the AG, whereas the decision to support the Mass. brief in the first place apparently did not. To my understanding that decision was made by a deputy who rather badly overstepped his bounds." Interesting.

The First Federal Appeals Court Decision to Recognize an Individual Right to Bear Arms?

That was United States v. Emerson, a Fifth Circuit decision from a few years ago, which got plenty of press. But apparently that decision somehow vanished in time for the New York Times' coverage of the D.C. Circuit decision recognizing an individual right to bear arms. The Times Web site front page blurbs the article as:

The decision today was the first from a federal appeals court to hold that the Constitution gives individuals, not just state militias, the right to bear arms.

Now these short blurbs are necessarily oversimplifications, and sometimes err. But here it largely echoes the article, which begins:

A federal appeals court in Washington today struck down on Second Amendment grounds a gun control law in the District of Columbia that bars residents from keeping handguns in their homes.

The court relied on a constitutional interpretation that has been rejected by nine federal appeals courts around the nation. The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias.

But if you think the circuit headcount is important enough to mention in the second sentence, shouldn't you mention that the D.C. Circuit's constitutional interpretation had been accepted by one other federal appeals court? True, that earlier decision upheld the gun control law despite its conclusion that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias. Still, the paragraph makes it sound like the individual rights theory was entirely unprecedented, which it certainly is not.

After all, wouldn't you interpret "has been rejected by nine federal appeals courts" as a statement that the theory has been rejected by nine and accepted by none, as opposed to that it has been rejected by nine and accepted by some unspecified number? And if reasonable readers would do that, shouldn't the Times try to avoid misleading them this way? Either don't do the head count, or state it completely.

In the very last paragraph, the article does say that "Most federal appeals courts have said that the amendment, read as a whole, protects only a collective right of the states to maintain militias — in modern terms, the National Guard." That might seem like a (belated) acknowledgment that not all federal appeals courts that had considered the issue had adopted the collective rights theory, even before this decision. Even on its own, though, it is both belated and ambiguous — given what the article had said earlier, "most" might well be read as meaning "all but this one."

But what that sentence might possibly give in terms of clearing things up, the very next sentence (the last sentence in the piece) takes away, repeating and exacerbating the problem in the second paragraph and in the blurb:

But in yesterday’s decision, the majority focused on the second clause, saying that the amendment broadly protects the rights of individuals to own guns — an approach that has been embraced by the Justice Department and by some constitutional scholars.

Doesn't that last clause implicitly assert that the Justice Department and some constitutional scholars are the most authoritative bodies to adopt the individual rights view, and implicitly suggest that the view hadn't been accepted by courts? Again, wouldn't it have been less misleading to say "an approach that has been embraced by the Justice Department, by some constitutional scholars, and by the United States Court of Appeals for the Fifth Circuit"?

(If the Times really wanted to paint an accurate picture, it could also have noted that the approach had been accepted the courts in several states, which the D.C. Circuit majority expressly cited; but that might not be well-known to legal journalists, even ones who write about the Second Amendment — the existence of the Emerson Fifth Circuit decision should be well-known to such journalists.)

Thanks to Dan Schmutter for the pointer. (Note that I've reworded the post since I first put it up, chiefly to make it more readable, but also to note the front-page blurb, which I didn't at first see.)

UPDATE: The Times has corrected its front-page blurb to read "Advocates of gun rights said the decision raised the prospect of a national re-evaluation of the meaning of the Second Amendment and the rights of gun owners"; and it has added a fourth-to-last paragraph that acknowledges Emerson: "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."

Let's recall Emerson: It 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," a conclusion that the New York Times labels "an aside." (For more on why the reasoning isn't dictum, see here and here; but it surely isn't an aside.)

So Emerson did rule, as the Times now acknowledges near the end of the article, that the Second Amendment secures an individual right. Yet the Times article's second paragraph still reads, "The decision was the first from a federal appeals court to hold a gun control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias. Nine other federal appeals courts around the nation have rejected that interpretation." Again, why mention the nine other federal appeals courts here, and not mention the Fifth Circuit's acceptance of the individual right interpretation as well?

Likewise, several paragraphs down (and several paragraphs before the acknowledgment of Emerson), the article says, "The decision relied on what has so far been a minority interpretation of the Second Amendment, though one that has been embraced by the Justice Department in the current administration and by some constitutional scholars"; again, why the mention of the Justice Department and some scholars with no mention of the Fifth Circuit? Much as I like to think our scholarly views are authoritative, surely a court decision is more authoritative -- so that if all that's mentioned is the Justice Department and scholars, readers could reasonably infer that this is the best that the D.C. Circuit had on its side. Not very good work on the Times' part, it seems to me.

"Free State," Straight Outta Blackstone:

A commenter in a thread below questioned the plausibility of the view that "security of a free State" in the Second Amendment could mean "security of a free country," as opposed to security of one of the States of the Union against federal oppression.

Well, it turns out that talk of what institutions -- especially military ones -- are good for a free state is all over Blackstone's influential Commentaries on the Law of England. There, of course, Blackstone had to have been talking of state in the sense of country or nation (American states as subordinates in a federal system were a decade in the future). Consider, for instance, book 1, p. 408 (emphasis added):

In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitutions, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.

Or book 1, p. 415 (emphasis added):

To prevent the executive power from being able to oppress, says Baron Montesquieu, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit with the people; as was the case at Rome till Marius new-modeled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing, then, according to these principles, ought to be more guarded against in a free state than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people.

Or book 1 p. 417 (emphasis added):

Nor is this state of servitude [created by excessively rigorous military discipline during peacetime] quite consistent with the maxims of sound policy observed by other free nations. . For, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. These men, as baron Montesquieu observes, seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments; 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation.

Likewise, Blackstone refers to what is good for free states in discussing the liberty of the press ("The liberty of the press is, indeed, essential to the nature of a free state," book 4, p. 151), in discussing the value of popular government ("In a free state every man, who is supposed a free agent, ought to be in some measure his own governor," book 4, p. 158) -- and in praising what he saw as the calming force of the established Church of England (book 4, p. 104):

[R]eligious principles, which (when genuine and pure) have an evident tendency to make their professors better citizens as well as better men, have (when perverted and erroneous) been usually subversive of civil government, and been made both the cloak and the instrument of every pernicious design that can be harboured in the heart of man. The unbounded authority that was exercised by the druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet, both witness to the truth of that antient universal observation: that in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is therefore the glory of the church of England, that she inculcates due obedience to lawful authority, and hath been (as her prelates on a trying occasion once expressed itc) in her principles and practice ever most unquestionably loyal. The clergy of her persuasion, holy in their doctrines and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowlege no guide but the scriptures, so, in matters of external polity and of private right, they derive all their title from the civil magistrate; they look up to the king as their head, to the parliament as their law-giver, and pride themselves in nothing more justly, than in being true members of the church, emphatically by law established. Whereas the notions of ecclesiastical liberty, in those who differ from them, as well in one extreme as the other, (for I here only speak of extremes) are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights, which reason and the original contract of every free state in the universe have vested in the sovereign power; and equally aiming at a distinct independent supremacy of their own, where spiritual men and spiritual causes are concerned.

And life in a free state may also be reason to suffer some inconvenience, book 3, p. 423 (paraphrasing Montesquieu):

But in free states [unlike despotisms such as Turkey] the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty ....

Montesquieu generally used "a free state" in similar ways: "In a free state, every man, who is supposed a free agent, ought to be concerned in his own government: Therefore the legislative should reside in the whole body of the people, or their representatives"; see also the references to "a free state" in this, albeit later, translation of Montesquieu's The Spirit of Laws.

"State" as "country" (or perhaps more precisely a self-governing nation) is of course pretty longstanding usage; article I, section 9, for instance, bars federal officeholders from accepting presents or titles from "any ... foreign state." Article III, section 2 and the Eleventh Amendment likewise use "foreign state" to mean foreign country. But beyond this, "a free state" as indicating what Englishmen and Americans should cherish and aspire to, is right from Blackstone and other contemporaneous writers.

Washington Post on "a 'Militia' Means Just That":

An excerpt from the Washington Post's coverage of the D.C. Circuit's Second Amendment decision:

U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, upholding the D.C. law, and saying the Second Amendment was narrowly tailored to membership in a "militia" — which he defined as an organized military body.

The case moved on to the appellate court, with the National Rifle Association and numerous states siding with the pro-gun faction, and the Brady Center to Prevent Gun Violence and other states and cities joining with the District.

In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the position advocated by the District, that a "militia" means just that. Others have ruled that the amendment is broader, covering people who own guns for hunting or self-defense.

This is either a big editing error — the "that" in "means just that" referring to a definition given three sentences and two paragraphs earlier — or an unwarranted bit of snide (snidish?) editorializing. If the case was just a question of whether "'militia' means just that," the collective rights argument might be stronger. But here's what "militia" means even today:

1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service.
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

So what exactly does "'militia' means just that" mean (other than "'militia' means what I want it to mean")? (On top of that, the right is expressly said to be a right "of the people," so what "militia" means is hardly the end of the story.)

Incidentally, if the question is whether "militia" in the Second Amendment means just something like the National Guard, that's one thing that the Supreme Court has resolved: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." (Today, after the Court's sex equality cases under the Fourteenth Amendment, it would likely include women, too.) The Militia Act of 1792 took a similar view, as does the currently effective Militia Act.

Thanks to PostWatch for the pointer.

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.