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What do Recent Decisions on Federal Group Prohibitions Signal for Heller’s List of Presumptively Lawful Regulations?

  • Date:
  • October 3rd, 2022

By: Andrew Willinger

In a September 19 decision in United States v. Quiroz, a judge in the Western District of Texas struck down the federal law barring those under indictment for a felony offense from receiving firearms, finding that the ban “departs from this Nation’s historical tradition of firearm regulation.”

One notable aspect of the decision is its treatment of the Supreme Court’s statement in Heller that the “opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” among other laws.  In Quiroz, the government argued that the Court’s endorsement of the felon-in-possession law necessarily meant that the felony indictment ban was also constitutional because those two laws have the same historical pedigree.  Judge David Counts’ opinion called this argument “a logical fallacy” and, perhaps more importantly, asserted that:

Heller’s endorsement of felon-in-possession laws was in dicta.  Anything not the “court’s determination of a matter of law pivotal to its decision” is dicta.  Dicta is therefore “entitled to little deference because they are essentially ultra vires pronouncements about the law.”  Or, as Francis Bacon put it, dicta is only the “vapours and fumes of law.” ‘

Less than a week later, in a decision dealing with a challenge to the federal felon-in-possession ban specifically (United States v. Collette), Judge Counts was slightly less direct in criticizing Heller’s dicta.  However, he stated that:

[T]his is where Bruen conflicts with Heller. Heller called proscriptions against felons possessing guns “presumptively lawful.”  In contrast, because possession is covered by the Second Amendment’s plain text, Bruen makes a felon’s possession of a firearm “presumptively constitutional.”  Bruen is the controlling standard, but this conflict—the presumption of constitutionality—is what places the heavy burden on the Government.

In general, comments or observations in an opinion that are not necessary to resolve the case at hand are dicta and are not binding on lower courts.[1]  As the Supreme Court has explained, “[t]he question actually before the Court is investigated with care, and considered in its full extent[, but o]ther principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”  Cohens v. Virginia, 19 U.S. 264, 399-400 (1821).

Notwithstanding this distinction, however, many appellate courts accord holding-level status to Supreme Court dicta.  Some circuits have precedential cases that essentially require lower courts to follow such dicta in almost all instances.  See, e.g., McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (“We think that federal appellate courts are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings.”).  In fact, the 5th Circuit—which will consider the government’s appeal of the Quiroz decision—generally accords great deference to Supreme Court dicta.  See United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980) (“We are not bound by dicta, even of our own court. . . . Dicta of the Supreme Court are, of course, another matter.”) (emphasis added).  As Judge Pierre Leval describes, “[v]arious reasons are given [for treating Supreme Court dicta differently]: Great respect is owed to the Supreme Court; it always sits en banc, assuring that all of its Justices have participated in whatever it decides; its small docket means it will not likely hear enough cases to cover any area of law by its holding.” 

Of course, Quiroz was not a challenge to the felon-in-possession law.  But Judge Counts’ decision to disregard entirely the list of presumptively-lawful regulations from Heller is potentially indicative of a broader question about how lower courts will treat Heller’s dicta going forward after Bruen.  Prior to Bruen, courts upheld the laws that the Court enumerated as permissible in Heller.  For example, by 2018 lower courts had rejected 99% of the 273 challenges to the federal felon-in-possession law.  But the lower courts did not merely apply Heller’s dicta blindly.  Joseph Blocher and Eric Ruben’s empirical analysis of post-Heller decisions found that decisions invoking the “presumptively lawful” list were more likely to devote substantial space to legal analysis of Second Amendment claims, “suggesting perhaps that Heller’s exceptions are not being used as a shortcut to avoid scrutiny.”

And the lower courts certainly did not always apply the presumptively lawful list without voicing reservations about the approach.  For example, in a concurrence to the 10th Circuit’s 2009 decision in United States v. McCane, Judge Timothy Tymkovich agreed that the Court was obliged follow Heller’s dicta but noted with palpable frustration that the Court had provided its list of presumptively-constitutional regulations “without any explanation of how they would fare in light of the Second Amendment’s original meaning.”  Judge Tymkovich went on to suggest that “the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts.”

While Bruen itself neither dealt with, nor provided substantive guidance on, the constitutionality of group prohibitions such as the felon-in-possession ban or other similar laws, the concurrence by Chief Justice Roberts and Justice Kavanaugh reproduced Heller’s list of presumptively lawful regulations in its entirety.  The majority opinion did not. 

What can we expect for Heller’s dicta moving forward?  First, it may be that the Bruen majority neglected to reproduce Heller’s list of permissible regulations because it finds the idea of the Supreme Court articulating permissible laws at odds with Bruen’s historical-analogical method.  The majority states that historical-analogical reasoning is “more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions.’”  Taking that statement at face value, it seems to clash with a judicially-dictated list of allowable regulations—if the historical record provides the most legitimate and faithful picture of what regulations were considered consistent with the Second Amendment when ratified, then it would appear that all laws should be evaluated solely by reference to history.  It’s hard to imagine that the Bruen majority is on board with the inscrutable method of the Supreme Court dictating permissible laws without explanation, especially when it believes that means-ends scrutiny is too judge-empowering. 

Perhaps the majority’s omission of the presumptively-lawful list was intentional, and the majority shares Judge Tymkovich’s view that this approach has inhibited doctrinal development in the lower courts.  This appears to be the exact concern that Judge Counts expressed in Collette—the idea that Bruen necessarily “conflicts” with Heller’s presumptively lawful list.  If correct, this would have major consequences going forward.  The felon-in-possession law itself, as Judge Counts observed, is simply not longstanding.  And the Founding-era evidence for banning even certain groups of felons from possessing guns is heavily contested and depends on the level of generality at which a judge approaches the inquiry.

On the other hand, as Jake has observed, Bruen contemplates a first-step inquiry that determines whether the “person, weapon, and conduct” are within the Second Amendment’s plain text.  By focusing only on conduct and not considering whether the person is within the scope at step one, Judge Counts’ analysis in Collette missed the mark.  There is no inherent conflict between Heller’s presumptively-lawful list and Bruen because Bruen still contemplates a step-one inquiry where certain groups of people are outside the scope of the amendment—without reference to analogous historical regulations.  There is not, as Judge Counts suggests, a presumption of constitutional protection for gun possession by all persons including felons, the mentally ill, and undocumented immigrants.  Such an approach is inconsistent with both Heller and Bruen

Second, there is perhaps a stronger rationale for according holding-level status to Supreme Court dicta in an area of law—such as the Second Amendment—where Supreme Court opinions have been few and far between.  With such little guidance from the Court, it seems even more appropriate for lower courts to adhere to dicta such as Heller’s list of presumptively lawful regulations.  And if lower courts are going to follow dicta, there’s a case to be made that they should treat it in the same way as they would an actual holding:  the list should be followed until or unless it is specifically revoked by the Court.  Bruen did not say anything explicit to cast doubt on Heller’s presumptively lawful list, the list can be mapped onto Bruen’s step one inquiry without any inherent conflict, and the most faithful route for lower courts is to read Bruen as a continued endorsement of the list.

Finally, Judge Counts’ decision in Quiroz raises the troubling prospect that courts may treat different pieces of Supreme Court dicta differently in Second Amendment cases.  Bruen, for example, appears to itself contain dicta in various places.  When the majority opinion makes broad pronouncements such as “we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation,” or “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence,” these statements are dicta if the actual basis for the Court’s holding is its subsequent detailed analysis of potential historical analogues.  The Court could have applied a blanket rule that three historical laws can never constitute a historical tradition of comparable regulation, a rule which would have obviated the need to do any analysis of the specific laws in question.  But the Court did not ultimately decide the case that way, so its passing observation that it is doubtful whether three laws could ever constitute a tradition was simply superfluous judicial commentary.  If courts are going to disregard Supreme Court dicta—notwithstanding cases suggesting that recent dicta is generally binding—they should at least be consistent in parsing opinions to distinguish between the central holding and statements that are merely ancillary and unnecessary to reach that holding.

[1] Black’s Law Dictionary defines dictum (or obiter dictum) as “[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).”