The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old November 23, 2008, 05:32 PM   #1
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,092
Heller, what counts as precedent?

I read somewhere that the only part of a SCOTUS decision that carries the force of law is the holding itself. Is this true?
Because there was a whole lot more ground covered in Heller than whether or not one can have a gun in the house. For example from page 11 of Heller:

In numerous instances, “bear arms” was unambiguously used to refer to
the carrying of weapons outside of an organized militia.
The most prominent examples are those most relevant to
the Second Amendment: Nine state constitutional provisions
written in the 18th century or the first two decades
of the 19th, which enshrined a right of citizens to “bear
arms in defense of themselves and the state” or “bear arms
in defense of himself and the state.”8 It is clear from those
formulations that “bear arms” did not refer only to carrying
a weapon in an organized military unit. Justice James
Wilson interpreted the Pennsylvania Constitution’s arms-
bearing right, for example, as a recognition of the natural
right of defense “of one’s person or house”—what he called
the law of “self preservation.”

I wonder how it is that the "bear" part of keep and bear gets so little credence. If it doesn't mean carry, then what does it mean? Again, if it isn't found in the holding itself, then what, if any weight will it carry in future cases?
maestro pistolero is offline  
Old November 23, 2008, 06:10 PM   #2
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
Quote:
Originally Posted by maestro postolero
I read somewhere that the only part of a SCOTUS decision that carries the force of law is the holding itself. Is this true?
What makes reading a Supreme Court decision difficult, is that most of us common people don't understand what it is we are reading... Well, to be fair, many attorneys and Judges will misstate what the actual "holding" is.

Consider that what we read, is what one of the law clerks have written. This can be emphasized when we read the syllabus. The opinion of the majority (and hence the decision) is written by a specific Justice, to which the other Justices attach their signatures (meaning that they agree with what and how the decision was written). Sometimes there will be concurring decisions, written by another Justice (and it too may have the signatures of other Justices), which agrees on the outcome, but not the legal route taken to get there. There are also the dissenting opinions, which just like the majority opinion, may have signatories.

A clear opinion (decision) is one that is written in such a way the the majority of the court agrees and signs. Decisions become less clear when there are two or more majority opinions.

The syllabus more often than not, nowadays, starts with a brief description of the controversy. This description often includes what was held. Usually with the words: HELD: and a very very brief of what the law clerk that wrote the description understands as the holding.

This does not mean that this is the actual holding. For that, you need to read the majority opinion. Remember, this part is what a law clerk is writing, and his idea of the majorities opinion may not actually be what the majority decided.

At any rate, anything not related to the "holding" is considered dicta (an opinion voiced by a judge on a point of law not directly bearing on the case in question and therefore not binding). There are 12 different appellate courts and each may read a particular Supreme Court "holding" slightly different.

That's usually when the SCOTUS will grant cert to another case that's similar, in order to clarify what they meant.

So, that's your answer in brief. Um, kinda muddies the water a bit, yes?
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old November 24, 2008, 12:10 AM   #3
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,092
Yeah I guess I'm a little confused. Asked another way, is it possible to say what from the 44 pages of the Heller decision (besides the dissent, of course) is binding on other courts and (assuming incorporation of the 14th) the states?
Thanks for your indulgence.
maestro pistolero is offline  
Old November 24, 2008, 01:32 AM   #4
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
Ya know, I was gonna ask an "extra credit" question, then thought better of it. Shoulda stuck with my first instinct.

OK. Look at what the question was, that would be answered by the Court. Now find the precise answer to that question. That's the holding.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old November 24, 2008, 01:57 AM   #5
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,092
Alright then:

Quote:
In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.
I guess it's all "that", minus the bag of chips!

So there's a right of immediate self-defense in the home, which was the only requested remedy of the plaintiff. An intentionally narrow request for remedy to extract an ruling loaded with much broader implications. How am I doing? (Hey, I'm just the piano player, waddaya want!)
maestro pistolero is offline  
Old November 24, 2008, 05:48 AM   #6
divemedic
Senior Member
 
Join Date: August 12, 2006
Posts: 1,313
That is the holding. The question to be decided by the court is easily seen when you read the writ of certiorari:

Here is the way the Court phrased it:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

the answer to that question was:

we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.
__________________
Caveat Emperor
divemedic is offline  
Old November 24, 2008, 01:15 PM   #7
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
I don't know how many remember, but in the original Heller thread, I made note of one fact of the question that was to be answered:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The part that I underlined was essential to and in fact answered in the Holding:

1. Operative Clause.
a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” Opinion of the Court (07-290.pdf) Pp 5 para 2.
At footnote 5 (Pp 5 & 6, op cite), Justice Scalia chastises Justice Stevens for his "collective" rights theories (pertaining to Amend. 1), thus establishing a singular and individual right. Further, on Pp 20, para 2, Scalia writes, "By the time of the founding, the right to have arms had become fundamental for English subjects." thus establishing that the right of the people being discussed was a fundamental right. The nature of the question itself, decouples any militia requirement from the right itself.

The holding actually goes on to describe what type of arms they are talking about in this case:
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 [Miller - 1939]. Op cite Pp 55 para 2.
The above added to:
"we hold that the District’s ban on handgun possession in the home (D.C. Code § 7-2502.02(a)(4)) violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable (D.C. Code § 7-2507.02) for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."
This leaves only D.C. Code § 22-4504(a), which is the law that requires an additional license to move (carry) a firearm within the home. While not directly addressed by the Court, it was indirectly addressed at the very end of the opinion:
"We affirm the judgment of the Court of Appeals." Pp 64, para 3. The D.C. Circuit did in fact address that issue.
Briefly stated then, the Courts holding is:
The Second Amendment at a minimum, consists of a fundamental right to keep (own) and bear (carry) firearms in common use, wherein a complete ban of a specific type of firearm is unconstitutional, and any requirement that precludes the use of a firearm for immediate self protection in the home is unconstitutional, and any requirement to license the use and movement of firearms in the home for immediate self protection is unconstitutional.
Now that is the way I read how the opinion answers the question. Your opinion, the opinions of others, and more importantly, the opinions of the various appellate courts may very well be different. Having just stated those caveats, I feel confident that the courts will read the decision as I have stated it.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old November 24, 2008, 11:52 PM   #8
melchloboo
Senior Member
 
Join Date: October 2, 2008
Posts: 279
Understanding stare decisis (precedent) is tricky.

The only "holding" is the outcome of the specific case that was before the court. In other words, the pure holding of Heller applies only to the facts of Mr. Heller's problem with DC.

When the next case comes along, unless his facts are precisely like Mr. Heller's, then whether or not Heller is stare decisis (precedent) for the next case is debatable. The reason why a lengthy opinion is issued as opposed to thumbs up/thumbs down is so that the next judge knows not only the outcome of the case but the reasoning employed. The idea is the next judge will try to adhere to that reasoning and produce a similar result. Although it often fails, the whole point of our legal system is to have predictable results so people can rely on the court system and not take matters into their own hands.

Suppose parents allow daughter A to go to the prom at age 16. When younger sister B reaches 16 a few years later she wants to go to the prom but parents say no. Daughter B says precedent was set in case of daughter A. But parents say no its different. A had good grades, and her date was respectable, agreed to have her home by 10:30. Daughter B is a C student, her boyfriend did time in juvie. Parents may have seemed to announce a simple rule in case A that at age 16 daughter may go to the prom. But all along, the law was actually more complex just never announced. In that sense a written opinion is supposed to help "discover" not make law. Next youngest daughter now has a clearer picture of what the rules are.

Does this sound like B.S.? Well in many ways it is. Its why law students get depressed. And why lawyers get paid the big bucks.

So what does Heller really stand for? That the DC ban was unconstitutional. It may provide some guidance to future cases, but nobody really knows.
melchloboo is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 07:29 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.09451 seconds with 9 queries