# guns **URL:** \ **Category:** Great Debates\ **Created:** [November 16, 2002, 11:19pm UTC](https://boards.straightdope.com/t/guns/137083 "2002-11-16T23:19:27Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 17, 2002, 7:49pm UTC](https://boards.straightdope.com/t/guns/137083/41 "2002-11-17T19:49:17Z")
> [@](#): > > they’re necessary reasoning towards the ultimate conclusion Incorrect, I’m afraid. As I thoroughly explained [in this thread](http://boards.straightdope.com/sdmb/showthread.php?threadid=93594): > [@](#): > > _Originally posted by minty green_ > If it doesn’t matter to the outcome of the case whether the right to bear arms is a collective or individual right, then it’s dicta. The majority admitted that Emerson was hosed either way, so there was no conceivable reason–other than old fashioned pontificatin’–for the majority to resolve the collective/individual question needed to be resolved. And since it is dicta, that means it’s not binding law even in the Fifth Circuit. If the question ever presents itself in another case, the court may look to Emerson for guidance, but it is not obliged to follow its analysis. I also like that thread because [page 2](http://boards.straightdope.com/sdmb/showthread.php?threadid=93594&pagenumber=2) offers another prime example of me shredding Joe\_Cool when he spouts off about case law it’s clear he hasn’t even bothered to read. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 17, 2002, 7:53pm UTC](https://boards.straightdope.com/t/guns/137083/42 "2002-11-17T19:53:48Z")
> [@](#): > > \*Originally posted by Max Torque \* > Didn’t I go through a bunch of these cases a few months ago and demonstrate that they are misreadings of _Miller_, stacked one on top of the other? Sheesh, sometimes it seems like you guys just refuse to pay attention when I explain what the law says. As I explained to you towards the bottom of the page [here](http://boards.straightdope.com/sdmb/showthread.php?threadid=114012&pagenumber=3): > [@](#): > > _Originally posted by minty green_ > No, that’s your position. But the circuit court cases are NOT contrary to Miller, because Miller is silent on the collective versus individual rights problem. It is equally consistent with either position. But it also undeniably gives substantive weight to the militia clause, which is also what the subsequent circuit court decisions have done. Yes, they went beyond Miller, even though they are building off of it. That in no conceivable way violates stare decisis. ---
**Author:** ![Calenth](https://avatars.discourse-cdn.com/v4/letter/c/ac91a4/32.png) [@Calenth](https://boards.straightdope.com/u/Calenth)\ **Post date:** [November 17, 2002, 7:57pm UTC](https://boards.straightdope.com/t/guns/137083/43 "2002-11-17T19:57:34Z")
No, minty. The reasoning matters because if they had decided that question in the opposite direction, it _would_ have affected the holding. Because they didn’t, but decided it in the direction that they did, they moved on to a second aspect of the question. But the process of reasoning that necessitated the second amendment discussion was relevant to the ultimate decision in the case. Hence, the second amendment discussion is not dicta. A good analogy: the second-amendment discussion is a dead end that they had to explore before they could decide that the path they went down to reach their decision was correct or not. If they hadn’t, they couldn’t know that their decision was correct – the dead end might have been the correct path after all. To know, they had to take that path and examine it. Hence, their examination of that path was relevant to their ultimate decision, and hence was not dicta. ---
**Author:** ![Calenth](https://avatars.discourse-cdn.com/v4/letter/c/ac91a4/32.png) [@Calenth](https://boards.straightdope.com/u/Calenth)\ **Post date:** [November 17, 2002, 7:58pm UTC](https://boards.straightdope.com/t/guns/137083/44 "2002-11-17T19:58:53Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Sheesh, sometimes it seems like you guys just refuse to pay attention when I explain what the law says. As I explained to you towards the bottom of the page [here](http://boards.straightdope.com/sdmb/showthread.php?threadid=114012&pagenumber=3): \*\* If you spent more time explaining, and less time loudly trumpeting your own horn, people would probably be more likely to listen to you. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 17, 2002, 8:00pm UTC](https://boards.straightdope.com/t/guns/137083/45 "2002-11-17T20:00:16Z")
> [@](#): > > \*Originally posted by Calenth \* > \*\*No, minty. The reasoning matters because if they had decided that question in the opposite direction, it _would_ have affected the holding. Wrong. The majority admittied that Emerson loses no matter whether it’s an individual right or a collective right. Since the resolution of the question didn’t matter to the case, it’s rank dicta. > [@](#): > > A good analogy: the second-amendment discussion is a dead end that they had to explore before they could decide that the path they went down to reach their decision was correct or not. Nonsense. They didn’t have to explore it at all. Emerson lost either way. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 17, 2002, 8:03pm UTC](https://boards.straightdope.com/t/guns/137083/46 "2002-11-17T20:03:37Z")
> [@](#): > > \*Originally posted by Calenth \* > If you spent more time explaining, and less time loudly trumpeting your own horn, people would probably be more likely to listen to you. Screw that. I’ve spend considerable time and effor addressing these issues in many past threads. In the case of the questions now raised by Joe and Max, I’ve specifically responded to the exact same questions posed by those two posters in previous threads. Since the answer now is the same as the answer the, it’s simply much more efficient to refer them back to the originals. ---
**Author:** ![Calenth](https://avatars.discourse-cdn.com/v4/letter/c/ac91a4/32.png) [@Calenth](https://boards.straightdope.com/u/Calenth)\ **Post date:** [November 17, 2002, 8:05pm UTC](https://boards.straightdope.com/t/guns/137083/47 "2002-11-17T20:05:54Z")
It’s amusing to me how you continually call it “rank” dicta. As if dicta were somehow noxious or something. Anyway, the fifth circuit itself, in their opinion, specifically reject your claim that their second amendment discussion is dicta. > [@](#): > > We reject the special concurrence’s impassioned criticism of our reaching the issue of whether the Second Amendment’s right to keep and bear arms is an individual right. That precise issue was decided by the district court and was briefed and argued by both parties in this court and in the district court. Moreover, in reaching that issue we have only done what the vast majority of other courts faced with similar contentions have done (albeit our resolution of that question is different). The vast majority have not, as the special concurrence would have us do, simply said it makes no difference whether or not the Second Amendment right to keep and bear arms is an individual right because even if it were an individual right the conviction (or the challenged statute) would be valid. In this case, unless we were to determine the issue of the proper construction of section 922(g)(8) in Emerson’s favor (which the special concurrence does not suggest), resolution of this appeal requires us to determine the constitutionality of section 922(g)(8), facially and as applied, under the Second Amendment (as well as under the due process clause and the commerce clause). We have done so on a straightforward basis. [http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm](http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm) Like I said, spend less time trumpeting your own horn and more time reading the things you’re talking about. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 17, 2002, 8:07pm UTC](https://boards.straightdope.com/t/guns/137083/48 "2002-11-17T20:07:05Z")
Oh, so the two judges in the majority say it’s not dicta. Well, that clears everything up then. Thanks much. ---
**Author:** ![Calenth](https://avatars.discourse-cdn.com/v4/letter/c/ac91a4/32.png) [@Calenth](https://boards.straightdope.com/u/Calenth)\ **Post date:** [November 17, 2002, 8:10pm UTC](https://boards.straightdope.com/t/guns/137083/49 "2002-11-17T20:10:53Z")
Well, it’s the most recent court ruling on the matter 😛 More seriously, though, the entire “dicta” question is a little irrellevant. . .message boards aren’t courtrooms. The _reasoning_ in the emerson decision is much more complete and in-depth than in any court decision on the second amendment since, well, Miller (and really before.) I don’t think it’s legitimate to casually dismiss something because it can be claimed to be dicta. The important thing, imho, is whether the reasoning in the Emerson decision is sound/correct. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 17, 2002, 8:14pm UTC](https://boards.straightdope.com/t/guns/137083/50 "2002-11-17T20:14:35Z")
> [@](#): > > \*Originally posted by Calenth \* > More seriously, though, the entire “dicta” question is a little irrellevant. . .message boards aren’t courtrooms. You seem to be under the misconcetion that I’m saying my position is right because the courts have endorsed it. In fact, my personal position is somewhat at odds with the collective right endorced by 9 out of 10 federal circuit opinions. All I’m doing is telling people what the law _is_, not what it should be. You wanna argue that the law _should_ endorse an individual right? Knock yourself out. ---
**Author:** ![Joe\_Cool](https://avatars.discourse-cdn.com/v4/letter/j/ecb155/32.png) [@Joe\_Cool](https://boards.straightdope.com/u/Joe_Cool)\ **Post date:** [November 17, 2002, 8:18pm UTC](https://boards.straightdope.com/t/guns/137083/51 "2002-11-17T20:18:48Z")
> [@](#): > > \*Originally posted by minty green \* > **Sheesh, sometimes it seems like you guys just refuse to pay attention when I explain what the law says. As I explained to you…** That’s right. Because minty green is THE authority when it comes to explaining the law. So any time anybody says he’s wrong, that means they obviously didn’t bother to read. :rolleyes: ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [November 17, 2002, 8:19pm UTC](https://boards.straightdope.com/t/guns/137083/52 "2002-11-17T20:19:22Z")
**Minty** if the law is settled, then the only thing to do is talk about what the law ought to be. Otherwise, where is the debate? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 17, 2002, 8:25pm UTC](https://boards.straightdope.com/t/guns/137083/53 "2002-11-17T20:25:14Z")
Still can’t find any individual right in _Miller_, eh **Joe**? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 17, 2002, 8:26pm UTC](https://boards.straightdope.com/t/guns/137083/54 "2002-11-17T20:26:27Z")
**Rhummy** , it belongs in these threads because pro-gun posters almost invariably take the position that _their_ stance is supported by the law, particularly the Second Amendment. It is not. ---
**Author:** ![Calenth](https://avatars.discourse-cdn.com/v4/letter/c/ac91a4/32.png) [@Calenth](https://boards.straightdope.com/u/Calenth)\ **Post date:** [November 17, 2002, 8:29pm UTC](https://boards.straightdope.com/t/guns/137083/55 "2002-11-17T20:29:54Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*You seem to be under the misconcetion that I’m saying my position is right because the courts have endorsed it. In fact, my personal position is somewhat at odds with the collective right endorced by 9 out of 10 federal circuit opinions. All I’m doing is telling people what the law _is_, not what it should be. You wanna argue that the law _should_ endorse an individual right? Knock yourself out. \*\* well, I think the reasoning in the _Emerson_ decision clearly establishes the law – the black letter of the Constitution – does endorse an individual rights interpretation, albeit a limited and regulated individual right. The other court decisions on the matter are much more shoddily reasoned. Of course, this gets into one’s definition of “the law.” Is the law a purely practical matter – whatever the giant of the courts happens to enforce – or is there an objectively knowable “correct” version of the law, which is “the law,” and which courts who contravene are in error and acting illegally? In a constitutional government, I think one has to argue that there is such a knowable, objective, “correct” version of the law; otherwise, court decisions could never be overturned on constitutional grounds. Sometimes courts are simply wrong, and when they are, their decisions are not correct law, no matter how prevalent the enforcement of those decisions. ---
**Author:** ![Joe\_Cool](https://avatars.discourse-cdn.com/v4/letter/j/ecb155/32.png) [@Joe\_Cool](https://boards.straightdope.com/u/Joe_Cool)\ **Post date:** [November 23, 2002, 12:51am UTC](https://boards.straightdope.com/t/guns/137083/56 "2002-11-23T00:51:53Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Still can’t find any individual right in _Miller_, eh **Joe**? \*\* Ok, smart ass. One more time, even though we’ve been over this time and again… These are all cited passages in the decision: > [@](#): > > “IN ALL THE COLONIES, AS IN ENGLAND, THE MILITIA SYSTEM WAS BASED ON THE PRINCIPLE OF THE ASSIZE OF ARMS. THIS IMPLIED **THE GENERAL OBLIGATION OF ALL ADULT MALE INHABITANTS TO POSSESS ARMS, AND, WITH CERTAIN EXCEPTIONS, TO COOPERATE IN THE WORK OF DEFENCE.** ” “THE POSSESSION OF ARMS ALSO IMPLIED THE POSSESSION OF AMMUNITION, AND THE AUTHORITIES PAID QUITE AS MUCH ATTENTION TO THE LATTER AS TO THE FORMER.” “A YEAR LATER (1632) IT WAS **ORDERED THAT ANY SINGLE MAN WHO HAD NOT FURNISHED HIMSELF WITH ARMS MIGHT BE PUT OUT TO SERVICE** , AND THIS BECAME A PERMANENT PART OF THE LEGISLATION OF THE COLONY (MASSACHUSETTS).” > [@](#): > > THE GENERAL COURT OF MASSACHUSETTS, JANUARY SESSION 1784, PROVIDED FOR THE ORGANIZATION AND GOVERNMENT OF THE MILITIA. IT DIRECTED THAT THE TRAIN BAND SHOULD “CONTAIN ALL ABLE BODIED MEN, FROM SIXTEEN TO FORTY YEARS OF AGE, AND THE ALARM LIST, ALL OTHER MEN UNDER SIXTY YEARS OF AGE, …” ALSO, “THAT EVERY NON-COMMISSIONED OFFICER AND PRIVATE SOLDIER OF THE SAID MILITIA NOT UNDER THE CONTROUL OF PARENTS, MASTERS OR GUARDIANS, AND BEING OF SUFFICIENT ABILITY THEREFOR IN THE JUDGMENT OF THE SELECTMEN OF THE TOWN IN WHICH HE SHALL DWELL, SHALL EQUIP HIMSELF, AND BE CONSTANTLY PROVIDED WITH A GOOD FIRE ARM” > [@](#): > > THE GENERAL ASSEMBLY OF VIRGINIA, OCTOBER, 1785, (12 HENING’S STATUTES) DECLARED, “ **THE DEFENSE AND SAFETY OF THE COMMONWEALTH DEPEND UPON HAVING ITS CITIZENS PROPERLY ARMED** AND TAUGHT THE KNOWLEDGE OF MILITARY DUTY.” and most notably: > [@](#): > > THE COURT CAN NOT TAKE JUDICIAL NOTICE THAT A SHOTGUN HAVING A BARREL LESS THAN 18 INCHES LONG HAS TODAY ANY REASONABLE RELATION TO THE PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA; AND THEREFORE CAN NOT SAY THAT THE SECOND AMENDMENT GUARANTEES TO THE CITIZEN THE RIGHT TO KEEP AND BEAR SUCH A WEAPON. Miller’s conviction was upheld on the grounds that this particular weapon had not been demonstrated to have any utility to the militia, and therefore cannot be borne by a private citizen, military arms being protected under the 2nd Amendment. If the court had held otherwise, the 2nd Amendment portion of the decision would have stated that he had no right to own any firearm at all. I realize lawyer school dimmed your reading comprehension, but I’ll help you out: meaning doesn’t need to be expressly spelled out in so many words. You may continue holding your hands over your ears and yelling “LA LA LA LA” all you like, but that is, regardless of whether you like it, what this decision says. ---
**Author:** ![Joe\_Cool](https://avatars.discourse-cdn.com/v4/letter/j/ecb155/32.png) [@Joe\_Cool](https://boards.straightdope.com/u/Joe_Cool)\ **Post date:** [November 23, 2002, 12:53am UTC](https://boards.straightdope.com/t/guns/137083/57 "2002-11-23T00:53:12Z")
minty, have _you_ ever read _Miller_, or do you just go on what one of your professors told you? Hearsay isn’t quite up to scratch as evidence, is it? ---
**Author:** ![ShetlandPony](https://avatars.discourse-cdn.com/v4/letter/s/4bbf92/32.png) [@ShetlandPony](https://boards.straightdope.com/u/ShetlandPony)\ **Post date:** [November 23, 2002, 1:28am UTC](https://boards.straightdope.com/t/guns/137083/58 "2002-11-23T01:28:46Z")
Please excuse my ignorance, but as a lot of gun control debates seem to go back to trying to interpret the opinions of people 200+ years ago, what is stopping the US amending the constitution to something that everybody understands and a majority agree with? ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [November 23, 2002, 1:56am UTC](https://boards.straightdope.com/t/guns/137083/59 "2002-11-23T01:56:03Z")
**ShetlandPony:** easy enough in concept; nearly impossible in execution. I agree that it needs to be done. Clarify that bastard into something so simple even a lawyer or a Congressperson can’t fuck it up (that, too, may be nearly impossible). But I honestly believe that _both_ sides, pro- and anti-gun, are scared shitless of how such a Constitutional Convention might turn out. **Calenth:** howdy! Welcome to the Straight Dope! > [@](#): > > Sometimes courts are simply wrong, and when they are, their decisions are not correct law, no matter how prevalent the enforcement of those decisions. Hear, Hear! Of course, you are now a national security threat (me too, for agreeing), so just surrender peacefully to the new Office of Homeland Security and spare them shooting you in the head while resisting arrest. (Since you’re new, that’s just my skewed sense of humor talking; I am not a paranoid anti-gov’t type. IANAPAGT). ---
**Author:** ![SPOOFE](https://avatars.discourse-cdn.com/v4/letter/s/c5a1d2/32.png) [@SPOOFE](https://boards.straightdope.com/u/SPOOFE)\ **Post date:** [November 23, 2002, 1:57am UTC](https://boards.straightdope.com/t/guns/137083/60 "2002-11-23T01:57:42Z")
> [@](#): > > pro-gun posters almost invariably take the position that their stance is supported by the law Actually, some of us take the stance that the opposing viewpoint is NOT supported by facts. But that’s a whole 'nother debate… > [@](#): > > what is stopping the US amending the constitution to something that everybody understands and a majority agree with? Lack of a proper majority vote in Congress. They’re hesitant to change things. [Previous page](https://boards.straightdope.com/t/guns/137083.md?page=2)