# What would it take to overturn DC v. Heller? **URL:** \ **Category:** Great Debates\ **Created:** [August 23, 2016, 5:41am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720 "2016-08-23T05:41:21Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 24, 2016, 4:17am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/21 "2016-08-24T04:17:15Z")
> [@wolfpup](#): > > 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.” > [Amendment II. Right to Bear Arms | U.S. Constitution Annotated | US Law | LII / Legal Information Institute](https://www.law.cornell.edu/anncon/html/amdt2_user.html) > > Suffice to say that _Miller_ and _Presser_ both extensively based their decision on the militia question. Your reading is incorrect. The discussion of militias in Miller was to address the question of what arms would fall under the protection of the 2nd amendment, not whom the amendment applies to. Those are different questions. If the court actually took your view in Miller, there would be no need to look at the type of weapon at all since Miller wasn’t a member of the militia. > [@wolfpup](#): > > 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. This is wrong too. The court had not held nor did it hold that the 2nd amendment granted an individual right for militia purposes. Any SCOTUS that looked at the matter recognized that the 2nd amendment codifies a pre-existing right - it does not grant anything. * * * This talk of stare decisis and overturning precedent is interesting from a what is likely scenario, but to answer the question in the OP - the minimum it would take to overturn Heller is a challenge to a law somewhere that is tangentially related to firearms or arms even, an emergency petition for cert, and 5 members of SCOTUS agreeing to support overturning Heller. It is inherent in their position that SCOTUS has this power. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [August 24, 2016, 5:27am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/22 "2016-08-24T05:27:22Z")
> [@Bone](#): > > Your reading is incorrect. The discussion of militias in Miller was to address the question of what arms would fall under the protection of the 2nd amendment, not whom the amendment applies to. Those are different questions. If the court actually took your view in Miller, there would be no need to look at the type of weapon at all since Miller wasn’t a member of the militia. > This is wrong too. The court had not held nor did it hold that the 2nd amendment granted an individual right for militia purposes. Any SCOTUS that looked at the matter recognized that the 2nd amendment codifies a pre-existing right - it does not grant anything. You are now not just wading into “opinion” territory and away from being factually grounded, but actually diving headfirst right into the deep end of gun advocacy. All of this was addressed before in GD, [most notably the part on Heller v DC here](http://boards.straightdope.com/sdmb/showpost.php?p=19128628&postcount=52) (“Example 1”, about halfway down), and some [really good judicial commentary in the links here](http://boards.straightdope.com/sdmb/showpost.php?p=19421983&postcount=89). Basic human rights are inherent and not granted, true, but there remains, shall we say, a little bit of debate as to whether the right to own a particular type of deadly firearm is a basic human right or a libertarian delusion. > [@Bone](#): > > This talk of stare decisis and overturning precedent is interesting from a what is likely scenario, but to answer the question in the OP - the minimum it would take to overturn Heller is a challenge to a law somewhere that is tangentially related to firearms or arms even, an emergency petition for cert, and 5 members of SCOTUS agreeing to support overturning Heller. It is inherent in their position that SCOTUS has this power. Yes, those are facts. And they are pretty much what we’ve all been saying. ---
**Author:** ![Flyer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/flyer/32/7298_2.png) [@Flyer](https://boards.straightdope.com/u/Flyer)\ **Post date:** [August 24, 2016, 6:02am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/23 "2016-08-24T06:02:42Z")
ATTENTION * * * It has come to our attention that a large number of people in this thread are misusing the word “overturn.” Only a body with higher authority can overturn a decision. A higher court can overturn the decision of a lower court, but there is no court that outranks the Supreme Court. Thus, the only way to overturn a Supreme Court decision is to amend the constitution, or in some “lesser” cases, to pass a new law. The Supreme Court can, however, **reverse** a previous decision. * * * THIS HAS BEEN A PUBLIC SERVICE ANNOUNCEMENT ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 24, 2016, 1:27pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/24 "2016-08-24T13:27:03Z")
Again, trying to stay out of GD territory, but it’s likely we’ll see a new litmus test for SCOTUS nominees regarding the individual right issue. Obama is on record on the pro-side, not sure about Hillary. Expect to see this brought up in the debates, too. **Flyer** : Good point. But… what if “the people” passed a constitutional amendment contra Heller? Wouldn’t that count as “overturning”? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 24, 2016, 1:27pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/25 "2016-08-24T13:27:29Z")
> [@wolfpup](#): > > You are now not just wading into “opinion” territory and away from being factually grounded, but actually diving headfirst right into the deep end of gun advocacy. The question of whether there exists inherent rights, or if rights are granted is debatable and not necessarily a matter of fact. The question of whether SCOTUS has said that the 2nd amendment _“granted an individual right to keep and bear arms for militia purposes” i_s a matter of fact and that was your claim. That claim is false because SCOTUS has not said the 2nd amendment _granted_ anything. Your claim that “the only established ruling was that the Amendment granted an individual right to keep and bear arms for militia purposes.” is false. As early as 1876, [SCOTUS has said](https://scholar.google.com/scholar_case?case=9699370891451726349&q=United+States+v.+Cruikshank&hl=en&as_sdt=2006&as_vis=1): > [@](#): > > “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .” I’ve shown that your claim that SCOTUS has said a certain thing and only ever prior to Heller, held the interpretation that the 2nd amendment granted an individual right to keep and bear arms for militia purposes is false. Do you have a cite that SCOTUS has _ **ever** _ held what you claim they have _ **always** _ held? Or is this one of those ‘my post is my cite’ things? As to your interpretation of _Miller_ - It is a fact that [SCOTUS has said your interpretation is wrong.](https://www.law.cornell.edu/supct/html/07-290.ZO.html) > [@](#): > > Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 24, 2016, 2:33pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/26 "2016-08-24T14:33:26Z")
The Constitution doesn’t grant rights; it recognizes them and enjoins the government from infringing on those rights. One may consider a “right” you cannot exercise null and void, but as originally stated in the Declaration of Independence, the purpose of a legitimate government was to “secure” those rights. Whether you believe in natural rights or not, the original framers did. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [August 24, 2016, 4:26pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/27 "2016-08-24T16:26:48Z")
> [@Lumpy](#): > > The Constitution doesn’t grant rights; it recognizes them and enjoins the government from infringing on those rights. One may consider a “right” you cannot exercise null and void, but as originally stated in the Declaration of Independence, the purpose of a legitimate government was to “secure” those rights. Whether you believe in natural rights or not, the original framers did. Exactly. If you read the Constitution, and specifically the Bill of Rights, you’ll note that most of the amendments are prohibitions on the Federal Government and/or states, and not explicit grants of rights. The Sixth and Seventh, and I suppose the Tenth are the only explicit grants of rights. The other seven, including the 2nd, are prohibitions on what the Federal Government can do. That’s in large part why the 2nd amendment challenges are so interesting; it’s not merely a matter of repealing a granted right, they are in legal terms, trying to regulate or eliminate a “natural” right according to the Constitution. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [August 24, 2016, 4:53pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/28 "2016-08-24T16:53:13Z")
Technically, the Constitution is a framework for the boundaries within which the three branches of government must work. It leaves it up to those branches to create a day-to-day government. The Supreme Court is the final arbiter of whether any laws, regulations, or interpretations are properly within the framework. Those lines are always hazy and changeable, and do change. Anyone who says “it’s a right” and goes no further lacks understanding of the system. And though the Founders believed in “natural” rights, the word appears nowhere. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 24, 2016, 5:00pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/29 "2016-08-24T17:00:40Z")
> [@wolfpup](#): > > 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.” > [Amendment II. Right to Bear Arms | U.S. Constitution Annotated | US Law | LII / Legal Information Institute](https://www.law.cornell.edu/anncon/html/amdt2_user.html) > > 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. > > 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:… 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. They did, but they did not in any way state that the 2nd Ad only applied to militias. As I said, but you igored even tho your cite says what I stated:_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._ Yes, that’s exactly what the DC ban essentially was. Can you show me a state where handguns are essentially banned as in DC? I am here in CA, and you have a express right to carry a loaded or concealed handgun in your home or business. ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [August 24, 2016, 5:09pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/30 "2016-08-24T17:09:48Z")
I’ve always found it fascinating that liberals, who normally insist that all Constitutional rights must be read as broadly as possible, are strict constructionists with regarded to exactly ONE piece of the Constitution: the Second Amendment. People who decried Robert Bork for saying the Founders’ intentions were paramount turn around and suggest that the Second Amendment only applies to muskets and flintlocks. ---
**Author:** ![jz78817](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jz78817/32/1028_2.png) [@jz78817](https://boards.straightdope.com/u/jz78817)\ **Post date:** [August 24, 2016, 5:18pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/31 "2016-08-24T17:18:16Z")
> [@astorian](#): > > I’ve always found it fascinating that liberals, who normally insist that all Constitutional rights must be read as broadly as possible, are strict constructionists with regarded to exactly ONE piece of the Constitution: the Second Amendment. > > People who decried Robert Bork for saying the Founders’ intentions were paramount turn around and suggest that the Second Amendment only applies to muskets and flintlocks. I think “strict constructionism” itself is a bit of a strange mindset for a document which is “easily” modifiable. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [August 25, 2016, 1:17am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/32 "2016-08-25T01:17:16Z")
> [@DrDeth](#): > > They did, but they did not in any way state that the 2nd Ad only applied to militias. As I said, but you igored even tho your cite says what I stated:_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._ > > Yes, that’s exactly what the DC ban essentially was. > > Can you show me a state where handguns are essentially banned as in DC? I am here in CA, and you have a express right to carry a loaded or concealed handgun in your home or business. No, I can’t show you such a state, but you missed the part about “outside the US”, the point being that most first-world nations have gun laws at least as restrictive if not more restrictive than DC before _Heller_, and people still have guns in their homes, and still use guns for target shooting and hunting. I was refuting the statement that _Heller_ would only be overturned in order to support a total gun ban, which is absolutely not true. As for _Miller_ and the militia thing, and also related to **Bone** ’s comments, _Miller_ was a ruling that both sides tried to claim victory on, with some justification. No, they never explicitly said that the 2nd only applied to militias, simply because they didn’t have to – the militia connection decided the case because the weapon in question was deemed not to have that protection. Again, the unique and landmark nature of _Heller_ was that for the first time ever, it completely dissociated the militia connection from the rest of the 2nd Amendment text, which a great many scholars consider to be a fatally flawed interpretation. > [@astorian](#): > > I’ve always found it fascinating that liberals, who normally insist that all Constitutional rights must be read as broadly as possible, are strict constructionists with regarded to exactly ONE piece of the Constitution: the Second Amendment. > > People who decried Robert Bork for saying the Founders’ intentions were paramount turn around and suggest that the Second Amendment only applies to muskets and flintlocks. I’ve never heard anyone say any of those things. A progressive view might be stated as the idea that the Constitution shouldn’t be read either “narrowly” nor “broadly” but rather, with an appropriate perspective on the times and context in which it was written. ---
**Author:** ![Poto](https://avatars.discourse-cdn.com/v4/letter/p/7ab992/32.png) [@Poto](https://boards.straightdope.com/u/Poto)\ **Post date:** [August 25, 2016, 1:25am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/33 "2016-08-25T01:25:10Z")
The founding fathers had ideas against standing armies etc and there were other reasons to give states some freedoms in dealing with arms. It was not a matter they wanted too deeply regulated by the federal government. The amendment is more a guideline rather than a strict rule or a federal power of any sort. It actually just copied state laws on militias. The amendment is too broadly applied in the last 30 years. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 25, 2016, 2:02am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/34 "2016-08-25T02:02:24Z")
> [@wolfpup](#): > > As for _Miller_ and the militia thing, and also related to **Bone** ’s comments, _Miller_ was a ruling that both sides tried to claim victory on, with some justification. No, they never explicitly said that the 2nd only applied to militias, simply because they didn’t have to – the militia connection decided the case because the weapon in question was deemed not to have that protection. So are you backing off your two false claims then? I can’t tell from this. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [August 25, 2016, 2:44am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/35 "2016-08-25T02:44:00Z")
> [@Bone](#): > > So are you backing off your two false claims then? I can’t tell from this. No, I am not, and my claims were not “false”. Your arguments and assertions that my statements were “false” are not just squarely in GD territory, they’re stretching the limits of any credible logic. Your interpretation of _Miller_ is the typically partisan one that ignores the absolutely pivotal role that the militia reading of the 2nd Amendment played in the ruling. And your second argument that “the 2nd amendment codifies a pre-existing right - it does not grant anything” is even more bizarre. I don’t know whether you’re nitpicking about the word “grant” versus “guarantee” or “confer” or suggesting that the right to own a howitzer is a God-given human right, but it’s not a supportable argument in any case. A previous source that I cited – [The Heller Majority: Wrong and Unprincipled](http://www.cato-unbound.org/2008/07/29/dennis-henigan/heller-majority-wrong-unprincipled) – deals with some of this, particularly citing “our **newfound constitutional right** to have a handgun in the home”. Even more significant is this piece by a legal analyst at the _New Yorker_: For more than a hundred years, the answer was clear … the courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon. > **[So You Think You Know the Second Amendment?](https://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment)** > > Does the Second Amendment prevent Congress from passing gun-control legislation? The question is rooted in politics as much as law. My one and only and key point here is that the _Heller_ decision changed all this. It changed everything. It was a landmark decision, whatever side of this one may be on. ---
**Author:** ![Poto](https://avatars.discourse-cdn.com/v4/letter/p/7ab992/32.png) [@Poto](https://boards.straightdope.com/u/Poto)\ **Post date:** [August 25, 2016, 2:48am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/36 "2016-08-25T02:48:04Z")
Heller overstepped. The amendment deals with the relationship of the federal vs state governments. States could ban guns. The feds could not. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 25, 2016, 3:04am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/37 "2016-08-25T03:04:47Z")
> [@wolfpup](#): > > No, I can’t show you such a state, but you missed the part about “outside the US”, the point being that most first-world nations have gun laws at least as restrictive if not more restrictive than DC before _Heller_, and people still have guns in their homes, and still use guns for target shooting and hunting. > . Other nations don’t have the 2nd Ad, now do they?:rolleyes: ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [August 25, 2016, 3:13am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/38 "2016-08-25T03:13:52Z")
> [@DrDeth](#): > > Other nations don’t have the 2nd Ad, now do they?:rolleyes: Please try to think through the argument here logically. _Heller_ is a particular interpretation of the 2nd. If that interpretation was overruled, people could still have guns in their homes, contrary to an earlier assertion that I was simply refuting. It would not require a Supreme Court hell-bent on a draconian total gun ban to overrule _Heller_. No reasonable person has ever proposed or suggested or even hinted at a total gun ban, and no court would support such a ridiculous notion. That is all. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 25, 2016, 3:22am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/39 "2016-08-25T03:22:39Z")
> [@wolfpup](#): > > No, I am not, and my claims were not “false”. Ok, let’s go back to this one then: > [@wolfpup](#): > > 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. Can you cite any SCOTUS ruling that held that the 2nd amendment **granted** an individual right to keep and bear arms for militia purposes? The key is granted. This is false. You seem to think this is not an important distinction, but it is, and your claim is false. I can disprove it with a single cite from [SCOTUS](https://scholar.google.com/scholar_case?case=9699370891451726349&q=United+States+v.+Cruikshank&hl=en&as_sdt=2006&as_vis=1): > [@](#): > > “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .” This cite directly contradicts your claim. You are wrong. I note you again chose to reference opinion pieces and not actual SCOTUS holdings. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [August 25, 2016, 3:27am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/40 "2016-08-25T03:27:38Z")
> [@Poto](#): > > Heller overstepped. The amendment deals with the relationship of the federal vs state governments. States could ban guns. The feds could not. Can states also inflict cruel and unusual punishments? [Previous page](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720.md?page=1) [Next page](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720.md?page=3)