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Old July 26, 2011, 09:42 PM   #13
Al Norris
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Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
Quote:
Originally Posted by Aguila Blanca
Didn't Mr. Justice Alito say just that in the McDonald decision?
As did Justice Scalia in Heller.

The Problem, as Mr. Gura points out, is that all but one of the lower courts are saying that this was all obiter dicta. They are sticking to the answer of the specific question raised by the plaintiff as regards D.C. gun laws. They are intentionally avoiding the reasoning used by the majority of the Court in order to find for the plaintiff. Consider what Mr. Gura said on pg. 7 of the amicus brief:

Quote:
When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound . . . the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law. . . .

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996)
I think another case quote would have been more to the point, however, and I wish he had used it:

Quote:
But Supreme Court dicta binds us "almost as firmly as . . . the Court's outright holdings." Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996)). This is particularly so where, as here, the dictum is recent and not enfeebled by later statements. See id.; see also Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 (2009) ("Although [Heller's] exceptions are arguably dicta, they are dicta of the strongest sort.").

Judge Tymkovich, US v. McCane 10th Circuit, 2009.
Regardless, the point was made.
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