Toward a future, wiser court: a blueprint for overturning District of Columbia v. Heller.

• Author: Aborn, Richard
• Position: Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

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.

1. THE POWER OF DISSENTING OPINIONS

   Justice Ginsburg's rumored comment differs slightly from her later-published lecture on the same topic, The Role of Dissenting Opinions, (14) though it carries the same sentiment. In her published lecture, Justice Ginsburg wrote that she would rank Justice Stevens' and Justice Breyer's dissents as opinions "appealing to the intelligence of a future day." (15) She was referring to former Chief Justice Charles Hughes's famous quote that "[a] dissent in a Court of last resort is an appeal ... to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed." (16)

   In her paper, Justice Ginsburg points to Justice Benjamin Curtis's dissent from the 1857 decision in Dred Scott v. Sandford (17) as an example of a decision appealing to the intelligence of a future day. (18) Dred Scott held that people of African descent whose ancestors were brought to the United States as slaves could never be citizens. (19) Justice Curtis wrote a pointed dissent, arguing that African Americans were "citizens of at least five States, and so in every sense part of the people of the United States," and thus "among those for whom and whose posterity the Constitution was ordained and established." (20) Although the case was never reversed officially, (21) slavery was abolished several years after the Court issued Dred Scott and Curtis's dissent has long since been acknowledged as the wise course the Court declined to take. (22)

   Justice Ginsburg's declaration comes, in part, from experience: she wrote a powerful dissent in Ledbetter v. Goodyear Tire & Rubber Coo, Inc. (23) that led directly--and swiftly--to Congress passing the Lilly Ledbetter Fair Pay Act of 2009. (24) In Ledbetter, the Supreme Court held that a worker could not sue his employer for equal-pay discrimination that occurred more than 180 days prior, regardless of whether the effects of the discrimination were ongoing. (25) In a rare practice, Justice Ginsburg read her dissent from the bench, stating that "[i]n our view, the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination." (26) She continued, explaining that "[p]ay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view." (27) Congress quickly endorsed Justice Ginsburg's perspective by passing the Lilly Ledbetter Fair Pay Act of 2009, which was the first bill that President Obama signed into law. (28)

   A dissenting opinion generally aims to persuade a future court, Congress, and even future litigants, to adopt its view. (29) Justice Brennan wrote that "the dissent demonstrates flaws the author perceives in the majority's legal analysis. It is offered as a corrective--in the hope that the Court will mend the error of its ways in a later case." (30) Justice Scalia, too, stressed that judicial dissents are meant to point to flaws in the majority opinion and to influence future litigants. (31) When asked whether he views judicial dissent as a form of advocacy, he answered, "Yeah, in a way. I'm advocating for the future. Who do you think I'm writing my dissents for? I'm writing for the next generation and for law students. You know, read this and see if you want to go down that road." (32)

   With the guidance--and often the rallying cry--of dissenting opinions, the Supreme Court has reversed itself on occasions where, typically, conservative decisions became retrograde in the face of progressive societal change. (33) Several of these reversals have been influenced by strongly worded dissents in the cases being overturned. Although we discuss a handful of cases, the two on which we focus most closely are Brown v. Board of Education, (34) which overturned Plessy v. Ferguson (35) and the "separate, but equal" precedent announced therein, (36) and Lawrence v. Texas, (37) which overturned Bowers v. Hardwick (38) and other cases prohibiting same-sex sexual relations. In both of these instances, the majority opinions were strongly influenced by the dissents in their antecedents, penned by Justice Harlan (39) and Justice Stevens, (40) respectively. These vindicated dissents articulated a socially progressive position against the oppressive majority opinion. (41) Thus, Justice Ginsburg's hope that Justice Stevens' dissent will appeal to the intelligence of a "future, wiser Court" is rooted in the Court's history.

2. HELLER

   Heller is a landmark case because it is the first case to find that the Second Amendment "right to bear arms" conferred an individual right to posses firearms unrelated to service in a well-regulated militia. (42)

   At issue in Heller was a decades-old Washington, D.C. law that banned handgun possession and required that firearms in the home be stored unloaded and disassembled or bound by a locking device. (43) In a narrow 5-4 decision, the Supreme Court struck down the law, holding that it violated the Second Amendment. (44) Both the majority and dissenting opinions primarily analyzed the highly-contentious, frequently-debated Second Amendment language reading: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (45) In those twenty-seven words, the Court found an individual right to keep and bear arms--unconnected to military service--in the home for the purpose of self-defense. (46) Justice Stevens strongly disagreed in his dissent, arguing that the right to keep and bear arms applies only in connection with service to the nation in the militia. (47)

   1. Majority Opinion

      Justice Scalia penned the majority opinion for the Court. (48) Broadly speaking, the Court concluded that the second clause, "the right of the people to keep and bear Arms," is not limited by the first clause, "a well regulated Militia," but rather refers to a...