A few weeks back, I highlighted the fact that there’s a surprising amount of congruence among the federal circuit courts in applying Heller. There’s uniformity on the methodological approach and on the constitutionality of a host of otherwise controversial public policies, like bans on assault weapons and high-capacity magazines. I also noted several substantive circuit splits, like the (lop-sided) split on “good cause” laws, the disagreement over whether undocumented immigrants fall within the Second Amendment’s scope, and the one about whether and how certain prohibited persons can raise as-applied challenges to firearm bans. There’s also a less substantive, but still interesting, circuit split: whether Heller’s carve-out for “presumptively lawful regulatory measures” constitutes dicta or not.

In one of its most quoted (and most confusing) passages, Heller famously stated:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The majority underscored that it had “identif[ied] these presumptively lawful regulatory measures only as examples.” The list, it continued, “does not purport to be exhaustive.” The obscurity of the underlying language, about presumptions and longstanding regulations, has given rise to some of the existing circuit splits. But the nature of the language itself—whether it qualifies as holding or dicta—has created a split as well.

For example, two years after Heller, the Fifth Circuit upheld a conviction by a felon in possession of a firearm, pointing out that “[d]icta in Heller” supported the conclusion that 922(g)(1) does not violate the Second Amendment. The Sixth Circuit, on the other hand, refused to let the “dicta” from Heller foreclose the as-applied challenge of an individual with a mental illness. In the Seventh Circuit, Judge Sykes cautioned her colleagues that courts “cannot read Heller’s dicta in a way that swallows its holdings.” And Judge Tymkovich, concurring in a Tenth Circuit decision, put it more colorfully: “In what could be described as the opinion’s deus ex machina dicta, Heller simply declared that nothing in it ‘cast[s] doubt on longstanding prohibitions on the possession of firearms by felons’ or various other gun control laws. And that was it.”

On the other hand, several courts, including the Third, Ninth, and Eleventh Circuits have more directly confronted the question and held (or just stated in dicta?) that Heller’s exceptions’ paragraph is not dicta. For example, in concurring that several individuals could bring as-applied challenges to 922(g)(1), Judge Hardiman noted that the Third Circuit has “concluded that Heller’s list constitutes a limitation on the scope of its holding and does not qualify as dicta.” The Ninth Circuit has likewise explained that “the Court’s language about certain long-standing restrictions on gun possession” is not dicta because “[c]ourts often limit the scope of their holdings, and such limitations are integral to those holdings.” Similarly, in rejecting a felon’s challenge to 922(g)(1), the Eleventh Circuit concluded that “to the extent that this portion of Heller limits the Court’s opinion to possession of firearms by law-abiding and qualified individuals, it is not dicta.”

Part of what creates this disagreement is that separating dicta from holding is notoriously difficult. As Arthur Goodhart put it a century ago, “The difficulty which is sometimes found in determining whether a statement is a dictum or not is due to uncertainty as to whether the judge is treating a fact as hypothetical or real.” Many judges consider Heller’s exceptions’ paragraph to by hypothetical; others note it mattered to the holding because the Court’s judgment required the District to permit Dick Heller to register his handgun only “[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights.”

In the end, the matter may be more theoretical than practical, at least for lower courts. As one put it, “we are bound by Supreme Court dicta almost as firmly as by the Courts’ outright holdings.” And even whether the Supreme Court follows its own precedent is often a matter deeply connected to the justices’ preferred theory of constitutional interpretation. But if and when the Supreme Court next considers a case that raises the question, expect the justices to clarify just what role those exceptions ought to play in lower court decisionmaking.

In Rucho v. Common Cause, the Supreme Court declared that partisan gerrymandering is a nonjusticiable political issue.  Two factors seem key to the Court’s holding: the difficulty of finding a manageable standard to assess such claims and the thorny expansion of judicial review into an area of deep political controversy. Some of these same concerns permeate Second Amendment litigation; but, perhaps surprisingly, they gave the Heller majority no pause when it first announced an individual right to keep and bear arms.

First, consider the issue of manageable standards. In Common Cause, the majority dismissed the idea of striking down the gerrymanders before the Court—which it acknowledged were “highly partisan” and could lead to outcomes that “reasonably seem unjust”—without at the same time creating a standard to decide the constitutional line in all other such challenges. Specifically, the Chief Justice rejected Justice Kagan’s suggestion that the Court could strike down the Maryland and North Carolina maps at issue on the theory that this much is too much. “That,” according to the Chief, “is not even trying to articulate a standard or rule.”

But, as Charles Fried ably showed just days after the Common Cause opinion, “[t]he law is replete with conclusions that depend on judgments that something is extreme, unusual, or outrageous, without offering the precise boundaries of that judgment.” Consider, for example, Lawrence v. Texas, which didn’t rely on traditional tiers-of-scrutiny analysis or settle all future questions about LGBTQ rights. Fried also listed several examples where the Chief himself has argued for a less-than-precise dividing line in constitutional matters.

Indeed, Heller itself is a powerful example of the type of this-much-is-too-much reasoning Common Cause rejected: The Court struck down the District of Columbia’s complete handgun ban without saying how other Second Amendment cases should be analyzed or where the line is between permissible regulation and unconstitutional prohibitions. Justice Scalia, in other words, employed the theory of Justice Kagan’s Common Cause dissent. As he said, “whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” And even though the Court gave a few examples of other regulations that might be upheld, it gave no reasons why and provided no explanation as to how courts should review them. (See “Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit.”)

Nor did this failure to create a new, manageable test for assessing future Second Amendment claims concert the Heller majority. It expressly rejected Justice Breyer’s criticisms of this failure.

JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

Recognition of an extreme outlier was enough to declare unconstitutionality in Heller, but not in Common Cause. That’s not the only puzzling disjuncture between the two cases. Take a set of striking similarities in each: despite the existence of gun regulations and gerrymandering dating back to the Founding era, the Supreme Court had never before struck down regulations or partisan maps as unconstitutional; and both issues are—and have long been—heated and politically contentious issues. Chief Justice Roberts hammered this point in Common Cause:

What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life.

On the other hand, Justice Scalia, writing for the Heller majority, saw no similar concerns there:

It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.

Concerns about the political thicket were likewise brushed aside. After all, the judge’s job is to say what the law is. As Justice Scalia put it, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” (Justice Stevens, in dissent, bemoaned the court’s entry into the political thicket on an issue where there was no discernible political process failure; on the other hand, when it came to legislative districting, he argued, the Court’s “entry into that thicket was justified because the political process was manifestly unable to solve the problem of unequal districts.”)

The juxtaposition between Common Cause and Heller highlights the dissonance between competing theories of the judiciary’s role and perhaps feeds the belief that judges are no more than politicians in robes. After all, the conservative justices—including in both cases, Justices Thomas and Alito alongside the Chief—thought one right worth announcing for the first time, despite the stridently partisan nature of the debate and failure to create any rule or standard for future cases. In the other, they thought those factors counseled judicial abstention. Something similar might be said for the other side. Justice Breyer decried Heller’s failure to announce a standard or method for assessing future Second Amendment claims, but he joined Justice Kagan’s opinion that would have held simply that “this much is too much” partisan gerrymandering. In the pending Second Amendment challenge, New York State Rifle & Pistol Association, Inc. v. City of New York, we may have another chance to tell whether ideology tells the full story in these cases.

Jake Charles’ post yesterday noted that a great many foundational cases in the constitutional curriculum—Lopez, Printz, Curtiss-Wright, and Cruikshank, to name a few—involve gun laws. Of course, that doesn’t mean that they’re best understood as firearms law cases, or that the subject matter of the laws had much to do with the constitutional holdings (though perhaps in Curtiss-Wright it did). But Jake’s post does help illustrate some of the ways in which firearms law intersects with other areas of doctrine, even if does so sub silentio.

I suspect that for most law students, Heller serves as the first explicit introduction to firearms law in general and the Second Amendment in particular. But I’m not at all sure of how it’s typically taught. Based on a quick review of a few con law casebooks, I see at least a few possibilities.

First, and seemingly most common, Heller can be used to teach different methods of constitutional interpretation—a way of understanding the differences between originalism, non-originalism, and so on. Long before Heller was decided, Eugene Volokh wrote a nice piece on how the Second Amendment could be a used as a “teaching tool” in that way, and the same basic approach still basically works.

Some case books present Heller in this fashion, even putting it among the first cases assigned—right up there with Marbury and McCulloch. I’ve often taught Heller that way myself, and I can certainly see—and testify to—the benefits. It’s an important issue, easy to orchestrate a class discussion about, and opens up lots of interesting and important issues regarding interpretive theories and the nature of constitutional rights and structure.

Of course, there are some downsides as well. Starting with perhaps the most thoroughgoing self-consciously originalist majority opinion in the Supreme Court’s history can mislead students into thinking that originalism has always been (or is even now, though my colleague Steve Sachs might disagree!) the dominant mode of constitutional interpretation. And I frequently find it hard to teach the Scalia-Stevens opinions, since weighing the historical evidence—as in any originalist debate—requires familiarity with a huge range of sources and texts.

If not as an exercise in interpretation, it seems a lot harder to fit Heller into a con law syllabus. After all, most casebooks and courses don’t seem to teach individual rights besides the Fourteenth Amendment and sometimes the First.

In fact, it seems that the second most common way the Second Amendment appears in con law courses is as a way to teach incorporation. In casebooks that take this approach, McDonald is the lead case, appropriately enough, and the foregrounded issues are about Due Process, Privileges or Immunities, and the like.

To be clear, I think that Heller is a great case to teach in con law—not just because the Second Amendment is important, but because it can be used to introduce so many crucial and trans-substantive constitutional issues. The primary challenge, I imagine, is in figuring out where to put it on a syllabus. We’ll be blogging a bit more about that, and about teaching firearms law courses, throughout the summer.

As this blog highlighted last week, the Seventh Circuit in Kanter v. Barr rejected a fraudster’s attempt to have the court declare 18 U.S.C. § 922(g)(1), the felon dispossession statute, unconstitutional as applied to him. It did the same thing last Thursday in Hatfield v. Barr. But did it also upend its normal inquiry?

Like Ricky Kanter, Larry Hatfield committed fraud to get government money. Unlike Kanter, Hatfield served no prison time and took less than $2,000, compared to more than $375,000 for Kanter. But the Seventh Circuit panel (Easterbook, Flaum, Sykes) unanimously concluded that Kanter controlled the outcome and foreclosed Hatfield’s claim. That’s where the agreement stopped. Judge Easterbook, writing for the majority, dispensed with the two-step inquiry Kanter, and the Seventh Circuit more broadly, typically undertakes. Instead, he flatly rejected the notion that one who served no prison time ought to enjoy any kind of presumption that his crime or his circumstances warranted individualized review:

We now hold that §922(g)(1) may be applied to a felon convicted of fraud, whose maximum sentence exceeded a year, even if the actual punishment was less. Heller and McDonald treat felon‐dispossession statutes as valid; the Justices did not make anything of how much time any given felon spent in prison.

For that reason, Hatfield bore the burden of proving that he should be exempt from these laws. As Judge Easterbook put it, “Lawyers love to play games with burden‐shifting, but Hatfield’s effort to avoid the subject is unavailing. He is the plaintiff, and plaintiffs bear the burden of production and the risk of non‐persuasion.”

According to Judge Sykes, writing in a partial concurrence, that approach is wrong.

Kanter assumed that nonviolent felons are within the scope of the Second Amendment’s protections and applied intermediate scrutiny, requiring the government to demonstrate that disarming someone like Rickey Kanter—a person convicted of a nonviolent fraud felony—is substantially related to an important public-safety interest.

She would have simply concluded that Kanter controlled the outcome without “[b]reaking new doctrinal ground.”

Despite the virtue vs. dangerousness dispute discussed in Kanter (and expounded upon by Judge Barrett in dissent), there’s no hint of that debate in Hatfield. Judge Easterbook suggests that Heller made felon dispossession laws constitutional full stop. Barring any empirical evidence showing a particular person, or one who committed a particular crime, is “to a constitutionally dispositive degree less dangerous than other felons, [he] must accept that the Supreme Court’s norm applies to him.”

In Heller, McDonald, and now potentially in NYSRPA, the Supreme Court established Second Amendment principles that have been the basis for more than 1,000 Second Amendment challenges in the past ten years. Notably, each of the Supreme Court’s cases involved an outlier law—DC and Chicago were the only notable US cities with handgun bans, and New York’s law is such an oddity that the city itself has effectively disclaimed any interest in it.

One way to get a handle on just how unusual the Heller, McDonald, and NYSRPA laws were/are—and what that might mean for the Court’s doctrinal response—would be to figure out how many people have ever been prosecuted for violating them. If the laws have been actively enforced, then one could make a stronger case for a stringent test to prevent government overreach. If they have not, then there is some danger of—as Justice Blackmun put it in Lucas—such a test being the equivalent of launching a missile to kill a mouse.

Unfortunately, I do not know of an easy way to get reliable information on the relevant prosecution history. The litigation materials themselves turn up a few interesting but inconclusive nuggets. At oral argument in Heller, Alan Gura seemed to acknowledge that no one had ever been prosecuted for violating the particular DC law at issue: “And, in fact, there is a prosecution history not under this specific provision,” though the “laws that we are challenging here today to prosecute people for the possession or for the carrying of a prohibited firearm even when the police ruled the shooting has been lawful self-defense.” (oral argument transcript at pg. 50) Neither McDonald nor NYSRPA arose from a prosecution.

Of course, a prosecution isn’t necessary to establish standing (Dick Heller was denied a permit, which is enough), and it’s perilous to read too much into silences, but the lack of references to such prosecutions in the cases themselves does raise the question of how the laws the Court struck down actually operated in practice.

Duke research librarian extraordinaire Jennifer Behrens pointed me to some resources on arrest data that might be illuminating. New York City, for example, provides some arrest data online, at least back to 2006, but it’s tough to search, in part because there are many different rules that could be implicated by gun possession in the city: N.Y. Penal Law §§265.01, 265.20(a)(3) (prohibiting some handgun possession – a misdemeanor); N.Y. Penal Law §400.00 (the licensing requirement – a misdemeanor); 38 R.C.N.Y. §5-23(a)(3) (the city rule on transporting to shooting ranges, violations of which result in revocation/cancellation of permit). Chicago seems to have similar data available, though I haven’t been able to make heads or tails of it just yet.

All of which still leaves me wondering how actively these laws have been enforced, and I’d welcome any pointers on how to figure that out.

To be clear, there is nothing necessarily wrong or unprecedented with the Justices granting cert to review the constitutionality of an unusual law. Many landmark constitutional cases involve outlier laws—Griswold v. Connecticut is an easy example. But even in Griswold (and Bowers v. Hardwick, for that matter), the petitioners were actually arrested and convicted.

If the gun laws that the Justices are seeing not only are outliers vis-à-vis the general sweep of gun regulation, but also lack bite in practice, that may have implications for the doctrinal rules they announce. In Heller and McDonald, the Justices struck down the outliers without articulating an over-arching standard of review or other doctrinal framework for Second Amendment challenges as a whole. One of the questions surrounding NYSRPA is whether they will do the same again.