Close-up Of An Open Law Book And Wooden Mallet In Courtroom

My Dicta Good, Your Dicta Bad

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by

Chris Johnson
in , ,
Like most rights, the right secured by the Second Amend­ment is not unlimited. … courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever pur­pose.
—District of Columbia v. Heller, 467 U.S. 837, 626 (2008)

This bit of text is quoted in almost every case where the state is defending their blatant infringements.

They still use this citation, even post Bruen. After Bruen, they added a ⁣more nuanced approach.

What these two quotes have in common is that they are “dicta”.

Dicta is short for obiter dictum. It refers to statements made by a judge in a legal opinion which are not essential to the decision of the case.

What is essential is the holding.

Part of the problem is that the superior courts would rather not resolve the same issues over and over again. They want a one and done case.

The core holding in Heller was that the Second Amendment was an individual right. As such, any ban of a class of firearm, defacto or not, was unconstitutional.

That’s it. The entire discussion on dangerous and unusual, in common use for lawful purposes, and “this is how you perform Second Amendment jurisprudence” is dicta.

Because it is “just” dicta, the inferior courts can choose to ignore it. Or pick and choose which parts of dicta they wish to use.

The rogue inferior courts will use the “not unlimited” to search for the boundaries. Then they will find that the particular law is outside the boundaries of the Second Amendment.

The Bruen opinion introduced more dicta. These dicta were directed orders to the inferior courts. No more two-step shuffle. No more means balancing.

The inferior courts were told, clearly, that the process of picking a level of scrutiny, and then applying a balancing procedure was unacceptable.

They were told to first look at the plain text of the Constitution. The very same language the Court has been using for decades, if not centuries. These inferior courts have shown that they are perfectly capable of reading the plain text of every part of the Constitution, except the Second Amendment.

Once the conduct “touches fingers” with the Second Amendment, the burden shifts to the state to show that their regulation is a match for this Nation’s historical tradition of firearm regulation.

In Rahimi, they said that a person can only be temporarily denied their Second Amendment protected rights. The inferior courts then proceeded to decide that a permanent loss of Second Amendment protected rights was Constitutional, when applied to anybody who could have been sentenced to more than a year in jail/prison.

Finally, Mexico’s allegations about the manufacturers’ “design and marketing decisions” add nothing of consequence. Brief for Respondent 23. As noted above, Mexico here focuses on the manufacturers’ production of “military style” assault weapons, among which it includes AR-15 rifles, AK-47 rifles, and .50 caliber sniper rifles. See supra, at 6; App. to Pet. for Cert. 121a. But those products are both widely legal and bought by many ordinary consumers. (The AR-15 is the most popular rifle in the country. See T. Gross, How the AR-15 Became the Bestselling Rifle in the U. S., NPR (Apr. 20, 2023.) The manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too. The same is true of firearms with Spanish-language names or graphics alluding to Mexican history. See supra, at 6. Those guns may be “coveted by the cartels,” as Mexico alleges; but they also may appeal, as the manufacturers rejoin, to “millions of law-abiding Hispanic Americans.” Tr. of Oral Arg 80; Reply Brief 20. That leaves only the allegation that the manufacturers have not attempted to make guns with non-defaceable serial numbers. See supra, at 6. But the failure to improve gun design in that way (which federal law does not require) cannot in the end show that the manufacturers have “join[ed] both mind and hand” with lawbreakers in the way needed to aid and abet. Direct Sales, 319 U. S., at 713.
—23-1141 Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 2025 605 U.S. 13–14

This is also dicta. This paragraph was written by Justice Kagan. Justice Sotomayor wrote something similar in Rahimi, I believe. Where she also admitted that the AR-15 was in common use for legal purposes.

After S&W v. Mexico was decided, many of the plaintiffs (good guys) filed notices with their respective courts, pointing them to the opinion. The gist of many of these notifications were, “The plain text is implicated. The burden shifts to the government to prove their ban is justified by this Nation’s historical tradition of firearm regulation. The Supreme Court stated that a firearm or class of firearms can only be banned if it is both dangerous and unusual. If a firearm or class of firearm is in common use, it is not unusual and cannot be banned. Justice Kagan said AR-15s are in common use.”

Well, the replies to those filings have started to come in. In a shocking turn of events, the infringers are now arguing that the Justice Kagan quote is “just dicta” and should be discarded. That it is just meaningless noise.

(But please remember that my dicta, “not unlimited”, cannot be discarded. It was put into a Supreme Court opinion.)

        

Comments

4 responses to “My Dicta Good, Your Dicta Bad”

  1. pkoning Avatar
    pkoning

    Of course, the problem with the “not unlimited” dictum is that you can’t find any words in the Constitution that justifies that statement.

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    Reply
    1. Archer Avatar
      Archer

      That’s the big problem, yes. The smaller problem is that “not unlimited” on its face means “broad, but with exceptions”, but the lower courts consistently assume, without evidence, that this infringement is one of those exceptions, that every infringement fits into an unlimited number and breadth of exceptions.

      If the courts treated the First Amendment the way they treat the Second — a broad right that nevertheless has infinite exceptions — then every law that limits free speech, free religious practice, and free assembly, would be a “reasonable” exception … and we wouldn’t be allowed to say or write anything, pray to any deity, or assemble in groups larger than two (and then only IF the two are married)*, for any reason whatsoever for fear it would offend someone within or outside the government.

      But I agree with you, the main problem is that the Second Amendment says, very clearly, “shall not be infringed” — period, full stop — and any exception whatsoever puts an “unless…” on the end of that which the Framers never intended to be there.

      ———
      * – Jesus said, “For where two or three gather in my name, there I am with them” (Matthew 18:20 NIV), so gathering in groups of two or more could be a religious observance in public, which might be offensive to others. An exception for married couples to appear in public together is “reasonable”.

      Reply
  2. Tom from WNY Avatar
    Tom from WNY

    Remember, its not about 2A rights, its about control.

    “A Tyrant’s greatest fear, the Arms of a Free People”.

    The current mood of the public and the Politicritters validated that statement.

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    Reply
  3. Archer Avatar
    Archer

    That leaves only the allegation that the manufacturers have not attempted to make guns with non-defaceable serial numbers.

    I’m no materials engineer, but is this even possible?

    In the legal argument, it’s not required by federal law so the manufacturers aren’t liable for not trying. But even if it were required by law and supposing they did try, would it be possible? Is there a material they could incorporate into the firearm design, into which they could impress or engrave the serial number, but which would then be resistant or impervious to defacement? Does such a thing exist that is malleable enough to manufacture but hard enough to not be altered or defaced?

    (For the Tolkien fans: We’re looking for a substance which can be formed and forged, but once completed is pretty much indestructible. So does mithril exist in the real world?)

    Logically, that’s a contradiction in terms, impossible to comply with. And IIRC, a law that is impossible to comply with has no validity — and there is SCOTUS precedent to that effect. The law may not require an action that simply CANNOT be done, and a person or company who doesn’t do what cannot be done also cannot be faulted for not doing it.

    Reply

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