Reply #173: I'm not quoting the Miller court -- I'm quoting the Heller court's interpretation of Miller. [View All]

[BzaDem]

The Heller court said:

"Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."

That's what Scalia said in 2008, not what I said. You interpret Miller differently -- all I'm saying is your interpretation seems to differ with Scalia's interpretation that Miller does stand for the proposition that the Second Amendment right "extends only to certain types of weapons" -- period. (No "absent" anything.)

Now you are correct this was dicta. Therefore, a lower court can get around it if it wanted to, by saying it is not bound by it. Or, the lower court could agree with it, and cite it as justification. Either way, it wouldn't matter, since this issue is of such an import that the Supreme Court would likely ultimately decide it. And once it gets to the Supreme Court, they are free to fashion their previous dicta into a new holding, or reject it. I'm just using that dicta to make a prediction. I could very well be totally wrong in my prediction.

I also have enjoyed this exchange and wish there were more discussions about court opinions on DU. Another site for where there is lots of discussion of many Supreme Court opinions and their nuances is volokh.com (though that has a very libertarian-oriented user base and bloggers, especially on economic issues).