Toward a Future, Wiser Court: A Blueprint for Overturning District of Columbia V. Heller

By Aborn, Richard; Koury, Marlene | Fordham Urban Law Journal, October 2012 | Go to article overview

Toward a Future, Wiser Court: A Blueprint for Overturning District of Columbia V. Heller


Aborn, Richard, Koury, Marlene, Fordham Urban Law Journal


Introduction
 I. The Power of Dissenting Opinions
 II. Heller
      A. Majority Opinion
      B. Justice Stevens's Dissenting Opinion
 III. Landmark Cases from Future, Wiser Courts
      A. From Racism to Equality: Plessy and Brown
         1. Plessy v. Ferguson
         2. Brown v. Board of Education
      B. From Repression to Sexual Freedom: Bowers and
         Lawrence
         1. Bowers v. Hardwick
         2. Lawrence v. Texas
      C. Other Illustrative Cases from Future Courts
 IV. Factors Leading to a Decision Being
     Overturned
     A. Retrograde Decision in Face of Strong Social
        Movement
     B. Strength and Guidance of Prior Dissent
     C. Composition of the Court at the Time of Decision
     D. The Degree of Consensus Among the Court
 V. Blueprint for Overturning Heller
Conclusion

INTRODUCTION

Justice John Paul Stevens recently bantered to Time Magazine that, if he could fix one thing about the American judicial system, it would be to make all of his dissents into majority opinions. (1) Banter aside, he stressed that if he could choose only one of his dissents to turn into a majority opinion, it would be his dissent in District of Columbia v. Heller. (2) Specifically, he said that he "would change the interpretation of the Second Amendment. The Court got that quite wrong. Gun policy should be handled by legislatures and by states, not by federal judges appointed for life." (3)

With that same hope, it is rumored that, during a lecture to the Harvard Club of Washington, D.C., Justice Ruth Bader Ginsburg expressed her strong desire that Justice Stevens' dissenting opinion in Heller will become the majority opinion of "a future, wiser Court." (4)

Heller is still the subject of national debate and is one of the more controversial decisions from the Roberts Court. The Court issued its pivotal 5-4 ruling on June 26, 2008, (5) finding for the first time that the Second Amendment conferred an individual right to posses firearms unrelated to service in a well-regulated militia. (6) In its analysis, the Court concluded that "central" to the Second Amendment is the natural right to self-defense, and by extension, the right to possess handguns for self-defense within the home. (7) In finding so, the Court struck down a decades-old D.C. law that banned handgun possession and required that firearms in the home be stored safely. (8)

Justice Stevens issued one of two dissenting opinions. (9) In his dissent, he argued passionately that the majority rendered "a dramatic upheaval in the law" and decided the case on "a strained and unpersuasive reading" of the Second Amendment. (10) He emphasized that the Second Amendment does not contain any "statement of purpose related to the right to use firearms for hunting or personal self-defense." (11) He also stressed that the Court's ruling overturned long-standing precedent announced in United States v. Miller, which held that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness of" the state militia. (12)

The decision in Heller raised the obvious question of its potential impact on existing gun control laws and whether they will stand up to a Second Amendment challenge. (13) But few have questioned whether a "future, wiser Court" will simply reverse Heller. Our Article provides a blueprint for how Justice Ginsberg's hope may be realized.

In Part I, we discuss the influence and guidance that dissenting opinions may provide to future, wiser Courts. In Part II, we analyze Heller, paying particular attention to the tensions that the conflicting majority and dissenting opinions raise. In Part III, we analyze landmark cases from future, wiser Courts that overturned stale or decidedly wrong precedent. In Part IV, we draw from these examples in order to evaluate the conditions that lead to overturning a Supreme Court case. Finally, in Part V, we apply the framework to Hellerand suggest possible ways to author its reversal. …

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