It's just not right to cite Wright -- why Pennsylvania lacks RKBA precedent

[MDJschool]

The gun banninators (which include district attorneys and judges) in Pa. get their jollies off of citing Wright v. Commonwealth, 77 Pa. 470 (1875) (per curiam) and Com. v. Ray, 272 A.2d 275 (Pa.Super. 1970), dismissed as improvidently granted, 292 A.2d 410 (Pa. 1972). There are many more cases that have the same character as these. What is this character? THEY ARE NOT BINDING PRECEDENT! In fact, they may have no precedential value whatsoever, not even 'persuasive', but as law-of-the-case.

Accepting Wright as precedent whatsoever “would fly in the face of this Court's frequent, clear, and unequivocal statements that the legal significance of per curiam decisions is limited to setting out the law of the case. This Court has made it clear that per curiam orders have no stare decisis effect.” Com. v. Thompson, 985 A.2d 928, 937 (Pa. 2009). "The rationale for declining to deem per curiam decisions precedential is both simple and compelling. Such orders do not set out the facts and procedure of the case nor do they afford the bench and bar the benefit of the Court's rationale." Thompson, at 937-938. (There is a strict set of exceptions to this per curiam general rule, such as where the Supreme Court clearly affirms on a specific basis of the lower court opinion.)

SCOPA notes, speaking where "[i]n the circumstance where we have accepted an issue by granting allowance of appeal, and this Court, after conducting our review of the issue, enters an order dismissing the appeal as having been improvidently granted, the effect is as though this Court never granted allowance of appeal. In other words, a dismissal as being improvidently granted has the exact same effect as if this Court had denied the petition for allowance of appeal (allocatur) in the first place." that "[w]here we dismiss an appeal as improvidently granted, the lower tribunal's opinion and order stand as a decision of that court and this Court's order has no precedential value." Com. v. Tilghman, 543 Pa. 578, 590 (1996). In the case of Ray, SCOPA dismissed the appeal not to the SCOPA itself but to the Superior Court, leaving the trial court orders to stand.

It's pretty simple but DAs and judges still don't abide, forcing defense attorneys to play the same game. Precedent is supposed to be a very narrow game: the law, as a set of facts applies, makes a holding. Anything that can be excised from an opinion which isn't needed to reach the holding can be excised, for the purpose of determining what the precedent is. The purpose of applying holdings is to cases with the same set of facts. Instead, it has become a spamfest, throwing as many 'someone important like a judge said this', with judges then ultimately treating what they absolutely cannot treat as binding precedent as just that. The damage that occurs following is not only that someone's rights are not fixed according to procedural law, but also that the court fails every purpose of opinion writing - wrestling with the issues of each party, explaining that analysis to the parties and showing the reasoning to reach the holding, and verifying true precedential support for their position - lest they discover they were wrong. I blame the 'casebook method' of teaching at law school as part of the cause of this phenomena.

I suspect that in addressing the jurisprudence of the Right to Bear Arms under the Pennsylvania Constitution that Hobson McKown in the case of Com. v. McKown will elucidate the system of precedent and show that Pa. is virtually a blank slate on the right to bear arms, ripe for a declaration that we the people, indeed, have rights, the right to bear arms one of the foremost. Until that time, law journals try to explain the situation, and should be a help to all of us to understand what really is or is not law so that we don't spread misinformation when explaining positions or trying to cut down others.

WHAT IS AUTHORITY? CREATION AND USE OF CASE LAW BY PENNSYLVANIA'S APPELLATE COURTS, Richard B. Cappalli, Temple Law Review
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