Unfortunately, anything the court said about the right being constitutional is dicta (meaning not binding), because the same decision (a remand allowing the state to press its case against Emerson) could have been reached if the Second Amendment had not been found to apply.
It's better to have the dicta than not, but it's not very good. Whoever said Emerson should appeal is correct. Unfortunately, I doubt there's enough interest in the top court to take it. I don't trust O'Conner on this issue, or Kennedy.
Unfortunately, anything the court said about the right being constitutional is dicta (meaning not binding), because the same decision (a remand allowing the state to press its case against Emerson) could have been reached if the Second Amendment had not been found to apply.Correct me if I'm wrong, but don't they refrain from saying "We HOLD" for dicta? Doesn't that make it a holding and thus case law? If the fifth circuit is asked to rule on the same thing again, wouldn't they again say "individual right?"