A little late to this argument, but....
The Court declared that the core of this right, was the right to be armed to defend self and family, in the face of immediate confrontation:
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. Heller, 554 U.S. at 592.
There is no insinuation in the above that holds only to "in the home."
The problem is that the various State Defendants and the Courts are seeing only the exact holding in Heller, as opposed to the reasoning that the Court used in making its determination. That reasoning is being called
obiter dicta. But is it
dicta?
“When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996).
It's not just the immediate result of the case (the so-called "holding"), but the reasoning the Court used to get that result. There are other citations where the Court says much same thing. What it boils down to is that the lower courts are ignoring the
reasoning of the Supreme Court and applying only the specific holding and regarding all else as
dicta, which they then ignore.
This is exemplified at the
definition of
Dicta: [Latin, A remark.] A statement, comment, or opinion. An abbreviated version of obiter dictum, "a remark by the way," which is a collateral opinion stated by a judge in the decision of a case concerning legal matters that do not directly involve the facts or affect the outcome of the case, such as a legal principle that is introduced by way of illustration, argument, analogy, or suggestion.
Dictum has no binding authority and, therefore, cannot be cited as precedent in subsequent lawsuits. Dictum is the singular form of dicta.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
dictum n. Latin for "remark", a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. The standard counter argument is: "it is only dictum (or dicta)."
Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
Let's assume, for the sake of the argument, that what Justice Scalia wrote above, is in fact, dicta. Since no other intervening cases have arisen to alter that statement, then even if dicta, it is legally persuasive just because the Supreme Court said it.
The fact that the lower courts are ignoring this, means absolutely nothing. You will notice that the 7th Circuit took what the
Heller Court said as fact. The 4th Circuit, 9th Circuit and the Maryland Supreme Court of Appeals have ignored this, and they will get slapped down for their efforts.
