What would it take to overturn DC v. Heller?

A big fear of the pro-gun crowd is that if Hillary Clinton wins the election, she will appoint a justice or justices who will effectively gut the 2nd Amendment by issuing the opinion that it doesn’t confer an individual right, but rather gives states the right to a militia. This was effectively the dissenting opinion of the court in the Heller decision. What would it take in order for a new court to overturn the decision? Their isn’t anything stopping them from issuing a new decision even if the facts in the case were identical, is there? The don’t have to respect their own precedents, do they?


It would require a party willing to appeal to the Supreme Court, at least 4 justices willing to grant cert, and a majority of voting justices to vote to overrule the prior ruling in Heller.

The Supreme Court has a tradition of adhering to established precedent (Stare decisis), but they don’t have to. Sometimes we are grateful that an embarrassing ruling from the past is overturned, so it isn’t always a bad thing. (i.e. dismissal in Baker v Nelson for lack of a substantial federal question which was overruled in Obergefell v. Hodges granting same sex marriage rights nationwide

She wouldn’t really need to “stack” the court; as I understand it Heller only established that the right to keep and bear arms was an individual right, and not reserved for those in a specific “militia.” Just like the right to free speech is not limitless, Heller doesn’t mean the right to bear arms is limitless.

Since we’re dealing with facts here, it should be noted that quite a few people were not “grateful” for that decision. But further, doesn’t the concept of Stare Decisis generally get stronger over time (as established law permeates society), and since Heller is a relatively recent decision, it would be easier to overturn than other, long standing precedents (all things being equal)?

The Court reverses decisions frequently. IANAL but from reading many books about the Court I don’t get the feeling that recentness of precedent plays a huge part. The world changes over decades and the Court responds to that.

I also don’t think that the recent partisan split in the Court has much historic precedent either. Maybe the 1930s Court, which suddenly reversed a ton of anti-New Deal decisions when liberal justices became a majority, is the best previous example.

The fervor of contemporary minority decisions indicates that those justices think that the majority was so extremely wrong that they would freely overturn those decisions. Those are necessarily recent. It’s that conservative/liberal split that is the deciding factor more than anything else.

The Court does not frequently reverse Supreme Court decisions. At least not the big ones that fundamentally change Constitutional issues. For example often when you read sky falling headlines about a huge reversal to the 4th Amendment it turns out to be a tweak of several previous decisions which will affect very specific circumstances. Change tends to be incremental with small reversals. Some get headlines, some don’t.

Well, the Supreme court could always do one of those classy (re)decisions.

Like it is murder after 90 days but not before or that you have the right to 3/5ths of a gun.

Over a larger historic time, the Court really does change its decisions on Constitutional issues frequently. That’s not the day-to-day work of the Court, but most cases don’t involve Constitution issues.

The SCOTUS is unlikely to overturn DC v Heller (or McDonald v Chicago), but given the court’s subsequent reluctance to hear challenges to various gun laws, it would be more likely to uphold a multitude of gun control laws falling short of an outright ban on gun ownership.

Exactly. Heller was pretty much a compromise and the DC laws pretty much amounted to a outright ban. Heller left open a hole that allowed “reasonable” controls. A new Clinton appointed court will just refuse Cert on controls that are less than DCs outrageous laws. For example, the new laws in CA.

Heller just drew a line in the sand: “This amount of gun control is too much” . Dem controlled SCOTUS will allow stuff closer to that line.
A GOP appointed SCOTUS would move the line forward.

Nothing Clinton suggested in the way of gun control would get close to the DC rules, so no need to overturn Heller.

What I’m saying is the decisions that turn the court on it’s ear and completely reverse previous precedent are very infrequent. More often there are multiple decisions that will change certain aspects of a larger issue and lead to incremental change over time. The paradigm shifting cases are quite famous but don’t happen that frequently.

FTR, when I looked at a list of all Supreme Court reversals recently, I think I counted about 140. But as noted, many were partial reversals reflecting incremental changes, though a few were truly major. Many overturned long-standing decisions as social values changed over the years, but some overturned quite recent decisions. The controversial Citizens United ruling overturned two different recent prior rulings, Austin v. Michigan Chamber of Commerce (which upheld restrictions on corporate election spending) in its entirety, and McConnell v. Federal Election Commission (which upheld the McCain-Feingold act) in part. McConnell v FEC had been decided just seven years earlier.

Quite likely, but not necessarily. One of the decisive aspects of Heller was that, for the first time, the 2nd Amendment was ruled to be an individual right for individual purposes, something that many constitutional scholars believe has no historical justification and is just plain wrong. The Court would no doubt prefer to rule on individual gun control challenges and leave Heller alone, so the conditions for overturning it would arise if (and probably only if) a Court sympathetic to a gun control initiative found Heller to be an insurmountable obstacle to it, which is just what happened with the inconsistency between the Citizens United ruling and two prior rulings that the Court reversed in whole or in part.

And more constitutional scholars agree that it is a individual right.

When you mention reversals are you talking about all reversals including lower court rulings? Because I was strictly talking about fundamental reversals of previous Supreme Court decisions.

I’m not going to get into a debate here, but note that the term “individual right” has several interpretations, and until Heller, the only established ruling was that the Amendment granted an individual right to keep and bear arms for militia purposes. The notable thing about Heller was ruling that the preamble “A well regulated Militia, being necessary to the security of a free State …” was basically decoration, and that the real essence of it was what followed, and that it guaranteed the right to bear arms for such purposes as personal defense. It’s not surprising that scholars disagree, especially given the historical context and some of the earlier drafts. No doubt some may choose to disagree with such a scholarly interpretation, but from a purely factual perspective this is what the disagreement revolves around.

I was talking about Supreme Court reversals of its own prior decisions. I think this is the article I was remembering, although a quick recount for some reason works out to 123 rulings reversed in whole or in part, not the 140 I remembered. It is, in any case, a surprisingly large number.

DC vs. Heller only applies to federal enclaves, is was McDonald v Chicago that extended that ruling to the States.

I’m curious if the Illinois State Constitution addresses this issue, my understanding is that California’s Constitution does not so there’s heavier gun control there than other places. The Oregon State Constitution explicitly states that individuals have the right to own guns. I don’t think the Feds can regulate guns here outside the Interstate Commerce clause.

It’s true that Miller talked about What guns are suitable for a militia, and that saw-off shotguns were not. But Miller did not rule that the 2nd only applied to Militias.

Also see Presser v. Illinois.

123 in over 200 years? That doesn’t seem that large to me.

Daring to try to stick to GQ…

I gave short shift to a key issue necessary for a case to be overturned… you need a case that is on point that can be appealed to the Supreme Court. Historically the Court does not answer a question if it does have to, so if they can find a way of resolving a case without overturning precedent then they may go that route.

For a case to be on point to overturn *Heller *you would need a federal jurisdiction to attempt to enforce what is essentially a ban on private ownership of firearms within a home. And since *Heller *is the controlling precedent you might have a reluctance to battle what seems like a case that has already been decided.

There may be any number of gun control measures that reach the high court over the ensuing years. But if the court can resolve those without overturning Heller then the core ruling may stand.

You need to read Miller more carefully:
… in the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well– regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Suffice to say that Miller and Presser both extensively based their decision on the militia question. The point here, whatever one’s opinion about guns might be, is that the Heller ruling was groundbreaking. There’s a reason it’s been so much in the news and so much talked about, like we’re doing right now.

Matter of opinion, I suppose. It’s large if one tends to think of the Supreme Court as something close to infallible. The mere fact that Citizens United reversed not one but two recent decisions is almost a testimony to how relatively easy it is to reverse such rulings, given a Court that is suitably motivated.

I agree with all of that except one phrase, and it’s essentially what I just finished saying upthread. The part that I think is wrong is that the case would need to involve “essentially a ban on private ownership of firearms within a home”. That’s not what the Heller challenge was ever about:
[Heller] determined that handguns are “arms” for the purposes of the Second Amendment, found that the Regulations Act was an unconstitutional ban, and struck down the portion of the Regulations Act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock”.

Frankly I’m not much interested in a gun debate even in GD or the Pit any more because opinions are so entrenched that it’s a lost cause, and all I’m saying here is let’s keep our basic facts straight: Heller was really about whether it was constitutional to ban handguns within DC and enact other measures that were being advanced for public safety. If a jurisdiction wanted to enact a handgun ban to reduce crime and the Court majority was aligned with the arguments put forward by the Heller dissent and therefore sympathetic to such an argument, I imagine it would meet the criteria for the Court to overturn Heller. This is in no way “a ban on private ownership within the home”. Lots of places outside the US have de juro or de facto bans on handguns, transportation restrictions, etc. much like DC had, and lots of people still have legal guns in the home.