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.