SOMETHING WE MAY HAVE MISSED IN HELLER - Lawyers please chime in...

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Jim March

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Folks,

In doing some research I needed a copy of the USSC Heller decision that was authoritative and could be cited for page number references, etc. So I came across this:

http://www.law.cornell.edu/supct/html/07-290.ZS.html

Cornell law library online, not too shabby.

That direct link is to the "Syllabus", or "summary" in plain English.

ONLY in the Syllabus do we see the term "HELD:" and a list of the case's "core findings".

We know that in any USSC decision, there's "holdings" and then there's "dicta". "Dicta" is useful but not necessarily binding.

BUT!

Take a look at the top of that Syllabus page, in text obviously provided by Cornell:

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .
Click to expand...

Ummmm...say what? Quoting that lumber case:

The headnotes to the opinions of this Court are not the work of the Court, but are simply the work of the Reporter, giving his understanding of the decision, prepared for the convenience of the profession.
Click to expand...

See, when the Heller decision first came down, I thought the "held" sections in the syllabus were products of the court. I suspect others did too. And those made it easy to sort out what's "dicta" and what's "holdings".

Well if that section we've been relying on to sort out "holdings" is in fact NOT anything remotely official, but rather just a law clerk's guide to understanding the case with no legal standing whatsoever, then in subtle ways it changes how we view the case.

If you look at the REAL core case (link to "Scalia's Opinion" above in PDF and HTML), it's damned difficult to tell what's "holding" and what's "dicta". At this point I have no clue which is which and I have reason to question whether ANY of what Scalia wrote can be dismissed as "dicta" and non-binding. Next step when I've had some sleep is to look at other cases, see if it's any easier to tell - did Scalia very deliberately avoid doing "dicta"?!

Finally, the syllabus and Scalia's text don't always match!!! The most blatant example involves full-auto rifles.

Compare the "held" section of the Syllabus on full-auto:

Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
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...with Scalia's actual text on that point from the pages cited:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
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Uhhhh...folks, am I crazy, or did Scalia actually support private ownership of M16s with "da switch"?

More importantly, is it possible that whatever nameless clerk wrote the syllabus was a grabber and let his/her/it's personal bias creep in!?

:scrutiny:
 
IANAL

I believe you are correct.

From my understanding of both Miller and Heller I could never see the outlawing (I live in ILLINOIS) of full auto or the outrageous tax on it.

NukemJim
 
Jim,

First, IANAL but have followed both this and a number of other SC rulings avidly recently......

This and other related issues was picked, poked and prodded to death by the whole spectrum of interested parties on and after release.

The issue is that "lawyer speak" and English, particularly at the level of the SC are two quite different beasts.

Where the SC says MIGHT the meaning is generally taken to mean

"The issue in question is not a direct part of the action although potentially linked and as such we note it but do not rule on it. This issue is left open and may be reviewed and ruled on as part of some subsequent challenge or ruling".

For example

Fully auto and 1986 was raised and left open to potential challenge
Incorporation was mentioned/alluded to but not ruled on
CCW was mentioned but not ruled upon
Viable restrictions and what that means was raised as an issue to be later decide d

etc etc

In fact, it could be argued that Scalia et-al indulged in "judicial activism" as they ruled on the whole Militia versus Individual right that was not part of the original action in Heller.

The general consensus is, and some of this is potentially explosive at the controlling state level, *cough* New Jersey *cough*

2A is an individual NOT militia right

There is an inalienable and inherent right of self defense, with a firearm is acceptable, in the constraints of legality (no vigilante for example)

Pistols, semi or wheel not defined but generally accepted as both types, are a reasonable and appropriate weapon for this usage.

Outright bans of this class of weapon are NOT constitutionally acceptable

Outright bans of other classes of weapon, classes to be later defined, are liable to challenge, no success guaranteed

2A is not an absolute unrestricted right, some, to be defined at some later point, restrictions on purchase, type and ownershop are reasonable

The constitutional legality of issues such as magazine restrictions, cosmetic features restrictions, "May issue" FID's etc are liable to challenge but not ruled upon.

Be careful not to read too much or too little into Heller, its' a VERY good 2 steps forward, much nore to come, watch this space....
 
...did Scalia actually support private ownership of M16s with "da switch"?
Click to expand...
From page 52 & 53 of the Heller decision (not the Syllabus):


"We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits. Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939. We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.” ... Indeed, that is precisely the way in which the Second
Amendment’s operative clause furthers the purpose announced
in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.
That accords with the historical understanding of the
scope of the right..."
 
Still judicial semantic dodging as on the one hand they say,

The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.”

Ergo whatever the current usage military small arm are in use M4, M16, M240, M249 etc etc etc are permissible.

Then the contrary opinion

We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.
That accords with the historical understanding of the
scope of the right..."

Considering that the NFA explicitly permits AOW and SBR (with restrictions) etc then a short barreled shotgun can and is legal, lawful (in many states) and possessed by law abiding citizens.

As I said in my piece earlier, Heller is the initial stage and a useful framework, much work to follow.
 
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
Click to expand...

The important part (I think) of the quote you used is in bold:
But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.
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This has been rightly and repeatedly criticized as "circular reasoning:" you make something uncommon (not a lawful weapons most people have at home) by severely regulating it (a $200 tax stamp in the 1930's was a hefty impediment to transfer) and then say, "See-it's not in common use, so now they can be banned."

Justice Breyer:
According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun.
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The best we can say is that Heller didn't address machine-guns. But it discussed them, and seemed inclined to let the ban stay in place.

As faulty as their reasoning may have been.
 
IANAL, but there is disagreement in the legal world about the differences between holdings and dicta. The differentiation between holdings and dicta is based on stare decisis - or how to achieve predictable results in the legal system. Judicial musings about what "may" or "might" be are probably not indispensible to the reasoning of the decision or the results.

I would be cautious about branding the writer of the syllabus for bias. If each of the nine members of the Supreme Court wrote a syllabus of a case, I suspect there would be nine different versions (at least in nuance) of the holdings.
 
You weren't expecting the grammer police but then noone expects the grammer police

his/her/its is such an awkward construct for third person singular gender neutral; for centuries it was proper to use they-them-their for third person singular nonspecific gender rather than this awkward he/she/it-him/her/it-his/her/its neologism.
 
In response to the quote LaEscopeta cited, and the topic in general: There are two circular aspects in play, both relating to the ownership of arms for "traditionally lawful purposes".

First is that the NFA prohibits a group of weapons, which can subsequently not be owned for lawful purposes. The circularity of this is so obvious that I am certain the court will not deny their utility on this. Rather my concern here is they will, in trying to determine their utility apart form the law in question, refer to their popularity and use prior to '34. But no one knows about that. Even Stevens, now at 88, was only 14 at the time of the passing. His memory, as is that of the public, is clouded by youth(at the time) and ~75 years of incendiary prohibition tales. As so, the court may attempt to cite these articles as evidence that MGs provided no lawful use.

Secondly, the argument which has already partially been laid out says that the weapons used to defend the state were the same as those used for other lawful purposes. This moves in the direction of saying that ONLY those used for other lawful purposes are protected, completely ignoring the fact that defense of the state is exactly one of those purposes. The only reason individuals did not own weapons more suitable for militia use is that such arms did not exist.....Actually, this remains to be true, bringing us back to the first point. Not only are they unquestionably protected for the documented purpose of defending the state, but they are very solidly useful for the purpose of defending one's residence and property(think ranch).

At the end of the day, a very winnable case can be made against the NFA, however lawyer-ship as shown in Heller is not nearly sufficient to silence the objections I expect it will find in the court.
 
John Lennon wrote once that when you write a song about an affair while trying to keep your wife from finding out the song is about an affair, you produce some pretty tortured language.

Scalia knows that the logic of his opinion makes the full auto law unconsitutional. But he also knew that if he said that, he couldn't get a majority. So he had to come up with something, and trying to make too much sense out of it will just drive you crazy.
 
I am a lawyer. I am not an appellate specialist, however.

If you look at the REAL core case (link to "Scalia's Opinion" above in PDF and HTML), it's damned difficult to tell what's "holding" and what's "dicta". At this point I have no clue which is which and I have reason to question whether ANY of what Scalia wrote can be dismissed as "dicta" and non-binding.
Click to expand...

This is pretty much typical in Supreme Court opinions, and not uncommon in other appellate court opinions. It drives you nuts and is a very large part of what law students spend 3 years studying.

Scalia knows that the logic of his opinion makes the full auto law unconsitutional. But he also knew that if he said that, he couldn't get a majority. So he had to come up with something, and trying to make too much sense out of it will just drive you crazy.
Click to expand...

I think this may well be correct.

Most judicially driven changes in fundamental law and rights require multiple cases over many years. I expect the final confirmation of our 2nd Amendment rights will follow a similar path. There may well be fits and starts along the way.
 
it leaves enough space to where we can use his words to argue for it the same way the anti's used a comma to argue the opposite. It was interesting, but the real truth is that we need to build a ladder before you climb to the top. That ladder is gonna be made out of the next 3-4 cases to make it to SCOTUS, so the point is moot in general, because the next case will most likely say something in regard to NFA in a different tone.
 
it leaves enough space to where we can use his words to argue for it the same way the anti's used a comma to argue the opposite. It was interesting, but the real truth is that we need to build a ladder before you climb to the top. That ladder is gonna be made out of the next 3-4 cases to make it to SCOTUS, so the point is moot in general, because the next case will most likely say something in regard to NFA in a different tone.
Click to expand...

then dont even attack the NFA. the first thing you attack before you go after the NFA is that nasty little bill in 86. an attack on that has a chance of succeeding. once you kill off that you then have a case of machine guns being able to be considered in common use. once they are in common use you have the heller case to help prevent a massive raise in the taxes and ammo to use against the NFA.
remember the miller case only talked about short barrel shotguns. the other parts of the NFA have never seen the light of the supreme court. there is no precedence to rule along with. you need to build up a set of backings before you go after the king of all anti-gun laws.
you might have a chance first going after the silencer part. spend a few years building up with popular understanding of noise reduction and hearing protection. along with this try to bring up safety and how people are being prohibited from safe conditions by prohibitive taxes and regulations.
the NRA doing a few pieces on safety and hearing and silencers being brought up as a useful and very effective method would be a good starting point.
 
Achievable sequences before everyone gets their government issue weapon of choice......

Kill off outright bans of a class of weapon (hand guns), in hand with Chicago and the NRA's San Fran, federal housing suits.

Incorporation, this is NOT a slam dunk with Chicago or the California Nordyke cases as they are still being narrowly argued. This MAY require a critical mass of several seperate other individual states rulings.

"Home Rule" BS where a city makes, independent of a state, rulings on fundamental constitutional rights needs to be beaten down. Denver comes to mind as does of course NYC. I'd pick easier and lower hanging fruit first to build case law but I expect ego's about "those damn Noo Youkers" will dictate.

Magazine and cosmetic feature restrictions would be the next stage and is, IMHO, the area where we will find the greatest and most significant battleground. Not because of what they are but what they mean.

This is where we will find the most passionate arguments on what is "reasonable regulation" and where governance for the good of the many butts up against the rights being led, by the fewer, for all.

Many firearm friendly states will, at this point, take a step back and see that this will affect THEM ALL and the manner in which they regulate, even lightly firearms.

It also cuts to the concept of the independence of the powers of the state legislators vis-a-vis federal law.

Here I would not be completely surprised if there was a huge governors conference and much horse trading and arm twisting.

I would like to feel a lowest common denominator set of laws would come out but expect instead a much more concerted effect to legally impede challenges and nasty individual state by state cases.

Only THEN would something as fundamental in Federal law as FA for all be liable to challenge.

Rocky roads ahead
 
I noticed the M-16 v. AR-15 reference in Heller. I think we know the significance, and Scalia knows the significance. But I doubt 4 SCOTUS Justices and most of the general public does. But it is a great step in the right direction I would like to see challenged in the right jurisdiction.

As for Dicta v. Holding don't worry so much about it, especially in a SCOTUS Opinion. It is like the difference between your wife hinting "that it would be nice if you can be home by 7" and telling you "be home by 7 or I'm getting a divorce." One is mandatory and one is suggested, no problems either way if you do it.
 
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