If I am following the discussion here, you are claiming that this is a court opinion that holds that the 2nd Amendment gives rise to an individual (as opposed to "collective")right to bear arms, in contradiction to longstanding precedent. If the result of the appeal court's decision is that the conviction of the individual was upheld, and not overturned based on that person's individual right to bear arms, then all the talk in the opinion about an individual right to bear arms is just talk ( in Latin _dicta_) and not "action". They didn't put their decision where their mouth was, as it were.
>From what you say below, I think you get this idea, though you seem cyncial
about whether it is followed in practice. I don't disagree that lots of
lawyers probably argue something is "dicta" when it probably isn't, but in
the discussion here, nobody has a motive of trying to win some actual case
before us.
I can't quite see how the court "had" to dispose of the individual right claim, but if they did have to dispose of it, they rejected it ( you might say by implication or indirectly), because if they had upheld that claim, they would have had to overturn the conviction, no ?
If a court says in an opinion "you have an individual right to bear arms, but it doesn't apply in this case", that means the assertion that one has an individual right to bear arms is dicta, not holding.
Charles
From: "jared"
Depends on what you mean by 'dicta.' The operative meaning of 'dicta' is whatever language a lawyer wants somebody to ignore. But lawyers (and judges) routinely cite whatever language they have at their disposal, regardless of its centrality to the holding. And even 'dicta' has precedential value.
That said, I wouldn't consider the 5th Circuit's words in Emerson dicta even under its traditional legal meaning. The panel was presented with the specific claim on appeal that Emerson's conviction violated his individual right to keep and bear arms as provided by the 2d. In order to dispose of the appeal, they HAD to address that specific claim. They *could* have assumed, rather than decide, that the amendment protected individual rights and then upheld the conviction on the reasonableness of the regulation, but they didn't do that nor were they required to. I wouldn't consider that particular language to be dicta. The Court certainly didn't think so, by explicitly saying that they were "holding" this result.
--Jared