# 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:** 5
**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 25, 2016, 8:35pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/81 "2016-08-25T20:35:00Z")
> [@Bricker](#): > > And the First Amendment says, “ **Congress** shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” > > Does this mean that the states are free to establish a religion? It certainly did mean that, and some states certain did do it. That fell out of favor, and was made officially binding on the states when the establishment clause was incorporate (which you know, of course). But for the first few decades, some states did have established churches. If you look at the original MA state constitution, it places some religious requirements on all residents: > [@](#): > > Article III. As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily. > And the people of this commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subject an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend. > > Provided, notwithstanding, That the several towns, parishes, precincts, and other bodies-politic, or religious societies, shall at all times have the exclusive right and electing their public teachers and of contracting with them for their support and maintenance. > > And all moneys paid by the subject to the support of public worship and of public teachers aforesaid shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends; otherwise it may be paid toward the support of the teacher or teachers of the parish or precinct in which the said moneys are raised. > > And every denomination of Christians, demeaning themselves peaceably and as good subjects of the commonwealth, shall be equally under the protection of the law; and no subordination of any sect or denomination to another shall ever be established by law. IOW, Catholics and Jews can jolly well move to Rhode Island! 🙂 ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [August 25, 2016, 9:40pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/82 "2016-08-25T21:40:35Z")
> [@Shodan](#): > > So any Supreme Court decision that says “such and such a right proceeds from the Ninth Amendment” is wrong by definition. By one interpretation, perhaps, but not necessarily by all interpretations. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [August 25, 2016, 9:51pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/83 "2016-08-25T21:51:48Z")
> [@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. Why do you find that fascinating? It strikes me as requiring an Asperger’s-ish view of the constitution, i.e. it says what it says and that’s what it says - with no regard for the relative need for or merit of its parts. Who are these insisting liberals you claim maintain that ALL constitutional rights must “be read as broadly as possible” with no effort to distinguish among those rights in case some pose a net harm to American society? What you imply is a liberal fault is really just a symptom of being a rational adult. Heck, someone could be a rational adult who believes in total or near-total freedom to keep and bear arms, yet feels the _first_ amendment (or the fourth, or the fifth, or any of them, really) should have some limits. I would expect a rational adult to be able to present his or her reasoning along those lines. Someone who insisted that all constitutional items must be read literally and can never ever ever be changed, limited or reinterpreted… well… I would suspect that person of some form of impairment. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 25, 2016, 9:58pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/84 "2016-08-25T21:58:07Z")
> [@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. Funny because it seems it is conservatives who are strict constructionists on the 2nd amendment. They brook absolutely no divergence from, “…the right of the people to keep and bear arms shall not be infringed.” Liberals are pointing out they are ignoring the first half and that is unreasonable and that, like all other constitutional rights, it is possible to limit those rights. ---
**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 25, 2016, 10:02pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/85 "2016-08-25T22:02:43Z")
> [@Bryan\_Ekers](#): > > Someone who insisted that all constitutional items must be read literally and can never ever ever be changed, limited or reinterpreted… well… I would suspect that person of some form of impairment. They’re supposed to be _ **formally** _ changed, by the explicit amendment process, which is there to ensure that a change to the Constitution is really desired by an abiding supermajority of the people. This has been repeated so many times on this board that I’m amazed that people keep insisting that abiding by a written constitution is no different from being subject to the dead hand of the past. Fer chissake, gun control advocates claim that something like 80% of the population want stricter gun control? Where is this silent majority when it comes to actually putting forward the votes that would support an amendment? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [August 25, 2016, 10:08pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/86 "2016-08-25T22:08:21Z")
> [@Whack-a-Mole](#): > > Funny because it seems it is conservatives who are strict constructionists on the 2nd amendment. Of course, now I’m kind of curious who astorian had in mind when picturing someone who was a “constructionist” about the _entire_ constitution. To my knowledge, even Justices who’ve been described as such (or described themselves as such) picked-and-chose which articles and amendments they liked best and defended most, while recognizing limits on others. The implied accusation of hypocrisy only works if such a person exists, while that person is calling for limits on some aspect of the constitution - not necessarily the 2nd Amendment, of course. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [August 25, 2016, 10:14pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/87 "2016-08-25T22:14:01Z")
> [@Lumpy](#): > > They’re supposed to be _ **formally** _ changed, by the explicit amendment process, which is there to ensure that a change to the Constitution is really desired by an abiding supermajority of the people. This has been repeated so many times on this board that I’m amazed that people keep insisting that abiding by a written constitution is no different from being subject to the dead hand of the past. _I’m_ amazed (well, slightly surprised) at your assumption I was unfamiliar with the amendment process. As long as your constitution remains a “broad-stroke” document, leaving it to congress to legislate the specifics and the judiciary to check those specifics for constitutional validity, your comment is irrelevant. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [August 25, 2016, 10:41pm UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/88 "2016-08-25T22:41:46Z")
> [@John\_Mace](#): > > Ah, that’s going back to the argument the Founders had about including a BoR in the first place. As I’m sure you know, some didn’t want to include it because they felt it would imply that it was a complete accounting of rights. So no, the 2nd amendment’s existence does NOT imply that the right would not exist without it (the 2nd amendment). > > It may seem like a mere semantic argument that **Bone** is making, but it is key to how many people (not all, but many) view rights. I’ve heard the interesting argument that the Bill of Rights were actually drafted as something of a diversion. The purpose of the Constitution had been to create a strong national government. There were plenty of people at the time who wanted a weak national government. So when these people who wanted a weak national government couldn’t kill the Constitution outright, they proposed that it immediately be amended. The intent was to add a bunch of amendments that would reduce the powers of the national government and increase the powers of the state governments. Madison, who wanted a strong national government, headed this off by agreeing to write the proposed amendments. But he avoided writing any proposals that would significantly change the balance of power between the states and the national government. Instead he made the focus of the new amendments the protection of individual rights. He then submitted his proposed amendments in 1789 and the arguments over ratifying these diverted attention away from any efforts to propose other power-limiting amendments. By the time Madison’s proposals were ratified in 1791 people had accepted the idea of a national government and the anti-federalist movement was spent. Its last hurrah was the enactment of the Eleventh Amendment in 1794. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 26, 2016, 12:15am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/89 "2016-08-26T00:15:30Z")
> [@Poto](#): > > The writings of the time clearly point to limiting the Federal government: > [The James Madison Research Library and Information Center](http://www.madisonbrigade.com/library_bor_2nd_amendment.htm) > > None of these ideas deal with states. States could limit the rights, so could a local ordinance. No guns within city limits does not fall into 2nd amendment rule. A militia could be rounded up as needed by a local authority. Asking again: The First Amendment says, “ **Congress** shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Does this mean that the states are free to establish a religion? ---
**Author:** ![Poto](https://avatars.discourse-cdn.com/v4/letter/p/7ab992/32.png) [@Poto](https://boards.straightdope.com/u/Poto)\ **Post date:** [August 26, 2016, 12:21am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/90 "2016-08-26T00:21:19Z")
> [@Bricker](#): > > Asking again: > > The First Amendment says, “ **Congress** shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” > > Does this mean that the states are free to establish a religion? Except the amendment is ONLY about militias. It deals with the feds and states and leaves the militia arming to the states. Bearing arms for other reasons is state jurisdiction. It’s not the first amendment. ---
**Author:** ![dreamregent](https://avatars.discourse-cdn.com/v4/letter/d/6f9a4e/32.png) [@dreamregent](https://boards.straightdope.com/u/dreamregent)\ **Post date:** [August 26, 2016, 12:34am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/91 "2016-08-26T00:34:08Z")
> [@Bricker](#): > > Asking again: > > The First Amendment says, “ **Congress** shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” > > Does this mean that the states are free to establish a religion? Prior to the 1940s, yes, I would say they could have. This is because SCOTUS ruled in 1833 that the Bill of Rights was not binding on the states. However, in 1947, the Establishment clause was incorporated against the states in _Everson v. Board of Education_. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [August 26, 2016, 12:50am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/92 "2016-08-26T00:50:43Z")
> [@dreamregent](#): > > Prior to the 1940s, yes, I would say they could have. This is because SCOTUS ruled in 1833 that the Bill of Rights was not binding on the states. However, in 1947, the Establishment clause was incorporated against the states in _Everson v. Board of Education_. The real nail in the saviour, as it were, was 1961’s _Torcaso v. Watkins_, I suggest. In any case, early on several of the states _did_ establish official religions and/or laws mandating religious worship/membership/attendance. The last was Massachusetts, who disestablished in 1833. ---
**Author:** ![dreamregent](https://avatars.discourse-cdn.com/v4/letter/d/6f9a4e/32.png) [@dreamregent](https://boards.straightdope.com/u/dreamregent)\ **Post date:** [August 26, 2016, 1:39am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/93 "2016-08-26T01:39:08Z")
> [@Bryan\_Ekers](#): > > The real nail in the saviour, as it were, was 1961’s _Torcaso v. Watkins_, I suggest. _Torcaso v. Watkins_ cited _Everson v. Board of Education_ as precedent for its interpretation of the Establishment clause. In any case, **[_Everson v. BoE_](https://supreme.justia.com/cases/federal/us/330/1/case.html)** explicitly answered the poster’s question: > [@](#): > > **The “establishment of religion” clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church.** Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.” Reynolds v. United States, supra, at 98 U. S. 164. ---
**Author:** ![Poto](https://avatars.discourse-cdn.com/v4/letter/p/7ab992/32.png) [@Poto](https://boards.straightdope.com/u/Poto)\ **Post date:** [August 26, 2016, 1:53am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/94 "2016-08-26T01:53:37Z")
1939 In United States v. Miller (1939), the Supreme Court ruled that the federal government and the states could limit any weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia. They were wrong? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 26, 2016, 2:27am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/95 "2016-08-26T02:27:29Z")
> [@Poto](#): > > 1939 > In United States v. Miller (1939), the Supreme Court ruled that the federal government and the states could limit any weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia. > > They were wrong? No. But that doesnt mean only the National Guard can have weapons. Back in the days of the bill of Rights, every able bodied male was a member of the “militia”. ---
**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 26, 2016, 3:02am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/96 "2016-08-26T03:02:24Z")
> [@DrDeth](#): > > Back in the days of the bill of Rights, every able bodied male was a member of the “militia”. How and when did that legally change? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 26, 2016, 3:06am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/97 "2016-08-26T03:06:33Z")
> [@Exapno\_Mapcase](#): > > How and when did that legally change? It never did. But now the National Guard is really a US Army reserve. Some state retain their own militias, also. But Government sponsorship was not required for a militia in those days. Even through the Civil War period. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 26, 2016, 3:08am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/98 "2016-08-26T03:08:11Z")
> [@Exapno\_Mapcase](#): > > How and when did that legally change? Never has. 10 U.S. Code § 311 - Militia: composition and classes > [@](#): > > (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. ---
**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 26, 2016, 3:11am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/99 "2016-08-26T03:11:44Z")
> [@DrDeth](#): > > It never did. Yes. That was my point. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [August 26, 2016, 3:40am UTC](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720/100 "2016-08-26T03:40:22Z")
> [@Poto](#): > > The amendments limit the Federal government. Just reading the first amendments, some issues are with the individual, some with states. The 2nd seems to limit the Federal government in dealing with local security issues. With this brief text, it seems states can limit guns within the state, or ban them from criminals, as we do now. No federal law on guns is implied. The 2nd amendment limits federal AND states after the 14th amendment. See McDonald v Chicago. [Previous page](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720.md?page=4) [Next page](https://boards.straightdope.com/t/what-would-it-take-to-overturn-dc-v-heller/763720.md?page=6)