Reversing Our Recent Victories


XD Fan
February 12, 2011, 08:01 PM
A post over in Activism got me to thinking. The post included the following:

the composition of the court on the left-right spectrum has as much to do with rulings as anything else, and change over time.

I wonder if there is any reasonable expectation that Heller and McDonald could be reversed and we could be back to arguing the OP's positions (which I and apparently the Robert's court agree with). I know that any thing is theoretically possible, but I am asking about reasonable possibilities.

How often in history has SCOTUS reversed itself? Plessey v. Ferguson (sp?) comes to mind, but as I recall the ruling in Brown v. Board of Education, SCOTUS said that the "separate but equal" premise of Plessey had proven itself impossible to achieve and is therefore unconstitutional. This is a little different (albeit not much) from saying that we got it wrong before.

My real question is what are the chances that some future court will say Roberts, Thomas, Alito, Scalia, and Kennedy just got it wrong?

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February 12, 2011, 09:25 PM
The SCOTUS operates on the basis of stare decisis.

stare decisis: a doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice

Buck Snort
February 12, 2011, 10:03 PM
Let's not start speculating over things we no control over. We could have a serious outbreak of website paranoia!

February 12, 2011, 10:21 PM
I am much more worried about administrative chipping away within ATF's regulations than I am about Heller or MacDonald being overturned. That will probably take decades.

XD Fan
February 12, 2011, 10:36 PM
I do not think this is a likely or imminent scenario. I am just curious about potential.

February 13, 2011, 02:01 PM
The best way to prevent any reversal of either Heller or McDonald is to make sure a pro gun President has the chance to replace retiring judges on SCOTUS from 2012 on.

XD Fan
February 13, 2011, 02:03 PM
Amen to that, DonP!

February 13, 2011, 02:46 PM
I wonder if there is any reasonable expectation that Heller and McDonald could be reversed and we could be back to arguing the OP's positions (which I and apparently the Robert's court agree with). I know that any thing is theoretically possible, but I am asking about reasonable possibilities.

The SCOTUS operates on the basis of stare decisis.

It purports to at least.

An outright reversal is very very unlikely. The bigger concern is that that the battle would simply be lost in the subsequent cases which will define the scope of the right. That is while the court is unlikely to say no right exists there are still a number of cases to come that will decide what the that right actually entails and what types of restrictions on it are permissible.

More often than outright reversal the court distinguishes and narrows, often through some impressive mental gymnastics. Thus you get cases that although never reversed are essentially limited to their facts.

If you use the first amendment as a point of comparison the jurisprudence there has changed dramatically in the last century and continues to grow more nuanced.

The court has yet to decide any standard of review for restrictions on the second amendment. The spectrum is rational basis on one end, which would permit practically any restriction outside of an outright ban and strict scrutiny on the other which would make any restriction extremely suspect. A more realistic fear than reversal of Heller and McDonald is that the court would establish a level or scrutiny or a test for restrictions that was very easily passed and in effect largely cabin the individual right.

It is frightening to think that these cases are coming out 5-4 on partisan lines. I think it shows how political as opposed to legal they were (particularly McDonald). It is scary to think that if the balance of the court shifted things could go south. As mentioned the surest way to avoid that is a change in the white house to an administration that is not hostile to second amendment and would be MUCH more likely to appoint justices that would give the bill of rights a more proper reading on that point.

XD Fan
February 13, 2011, 03:18 PM
Thanks for the insights, Girodin.

Standing Wolf
February 13, 2011, 03:26 PM
Thanks for the insights, Girodin.


February 13, 2011, 03:36 PM
It is actually very rare for the SCOTUS to outright reverse itslel.

The more common method is to find another basis to make a decision that avoids an actual reversal.

This is how the court breathed life back into the 14th amanemdnet after the Miller court gutted it.
They switched emphasis to the process clause after the Privileges and Immunities clause was rendered almost powerless.

There have been a very few, but Dred Scott took a Constitutional amendment to overrule the decision.

February 13, 2011, 07:59 PM
As far as stare decisis goes, the supreme court usually does at least maintain appearances of abiding by it, but what they do is find ways to limit the effect of the previous decision that they disagree with and in the process make the case at hand come out how they want it to.

Keep in mind that the four justices that dissented in Heller dissented in McDonald on the grounds that Heller had been improperly decided.

The next cases will be about the scope of the second amendment rights. What restrictions are reasonable and which ones are not. It would be very easy for a future court to restrict the second amendment to the point of being meaningless by allowing significant restrictions.

February 14, 2011, 03:40 PM
I find it hard to believe that 4 justices couldn't find in favor of Heller. Historically (from when the Constitution was written) it meant the people. Surely with the Friend of the Court brief's they could see the light! Obviously not! That is why support of pro Constitution politicians is imperative. Nothing is guaranteed.

February 14, 2011, 03:56 PM
Girodin: I have no disagreement with anything you said, but would like to point out that most dedicated antis think that the "individual/collective right" question was decided in favor of "collective" in U.S. v. Miller, and that it is Heller, and subsequent rulings citing Heller, that are violating stare decisis.

February 14, 2011, 04:06 PM
The Supreme Court has shown itself to be very reluctant to reverse itself even when the political makeup of the court changes. Put in the most simple terms this is because reversing themselves often would render the court a largely meaningless symbolic body.

Please also remember that not only is there Heller and McDonald, there is the Second Amendment that they must, and do consider.

Despite the 5-4 margin on each, Heller and McDonald are on the books and were taken very seriously. I think a reversal of either as highly unlikely.

However, someday, should the makeup of the court change, we will see anti-based lawsuits settled in a way we might object to. Speculating on the substance of such a thing would be folly. But I still don't think we'd see these decision overturned.

February 15, 2011, 05:17 PM
This is a good argument for term limits in all elected, and appointed, political offices. It should also include judicial review by the populace. This IMO would stop a lot of "favors" done by and for politicians.

February 15, 2011, 08:20 PM
xfyrfiter said: This is a good argument for term limits in all elected, and appointed, political offices.

Ironically the Supreme Court specifically has no term limits to avoid that, because the reality is it often works in reverse.
People elected or appointed for a limited time have a specific amount of time to make contacts, pass legislation, and gather favors, and set up future options for when their term limits are up.
The political position is merely a stepping stone in their life, and so they often do all they can while in a position of authority to make people happy that will return the favor later when they are no longer in that position.
Government contracts, programs, "pork" and similar things are a big way such things are done and rarely noticed by the population. The Right and Left do it all the time.
Most of the population is more inclined to notice campaign donations and more blatant things spelled out to them, and miss most of the rest.

Do you think it is any coincidence that many federal politicians that go to Washington broke are wealthy when they leave?
It's not because they steal money like some third world politician, but rather they use their authority to manipulate and line up a more lucrative future for themselves. Learn tricks of manipulation, inside information, etc

Term limits can be good sometimes, but they also tell the individual no matter how good of a job they do, it is not a lifelong position they will retire from.
So they cannot just focus on doing the job well, but must focus on what they will do next, what options they can create for themselves in the meantime that will help them when their term is up.

As for the OP, Girodin summed it up well.
The Court does in fact almost reverse itself, but it almost never says so in a decision. The Court narrows previous rulings, cites various legal logics, and almost always makes it appear they are not actually making a decision, but continuing something someone else did.
They will cite prior opinions and other court cases, and make a strong case that sounds solid for doing what they want.
Yet if they wanted to come to the opposite conclusion they could do the exact same thing, citing different prior cases or even the same cases highlighting a different portion of them.
Future courts will then do the same thing with their case.

As Girodin put it "impressive mental gymnastics" are used by these typically bright legal minds to accomplish whatever their goal is, while often giving the appearance to the lay person it was never up to them, it was previously decided in a prior case.

You can take any prior case and highlight or diminish specific portions to create almost contrary interpretations of what the case meant, and future cases do so to alter prior interpretations.
Let us take Heller for example.

It can be interpreted to allow most military and police weapons "in common usage" for the historical purpose cited. It could be interpreted that anything that restricts or reduces the ability to acquire arms is a violation.
That registration poses a great risk of future infringement and is prohibited (already prohibited by FOPA federally.) That any required payment for a "license", "permit", "processing" etc is just as unconstitutional as the poll tax to vote was found to be for exactly the same reasons.

However Heller's "reasonable restrictions" for example could be extended to allow almost anything short of a ban, and virtually remove any real RKBA, bringing the country to worse restrictive levels than in much of Europe or other places without the RKBA. Where they have mandatory membership in special clubs for X months or years for Y type of guns, after various background checks, government permission, and so many hoops to jump through that only a small minority have firearms, limited types, can be discretionarily denied at many steps in the process, and can have them revoked for getting a traffic ticket.
You could have license types A-Z for different types of guns. Increasingly difficult for to acquire for different types of firearms, with most license types never issues to regular people, similar to the situation in Australia.

(Guns are not really "banned" almost anywhere in the world. The requirements for most types, including many we can buy at 18 with no trouble, are just put beyond the reach of regular people. )

What a case means in the long term all depends on what portions are defined narrowly, and what portions are expanded on in the future.
After 20-50 years go by people can claim something within a decision completely contrary to anything everyone today know means a specific thing was meant by a prior case, and most of the population won't know any better.
We have seen it done plenty of times. Heller could be claimed to have been an anti-gun decision in 50 years, legalizing all "reasonable" restrictions, with a definition of "reasonable" that exceeds anything imaginable to us today.
It happened with the Miller case. In Miller the court practically said if it had been a militia useful weapon (like a machinegun) instead of a short barreled shotgun it would have been constitutionally protected. Yet it became the anti-gun precedent decades later.

February 15, 2011, 08:23 PM
This is why elections matter. If you want to keep SCOTUS with a conservative 5-4 majority to secure 2A rights, then stay active in the political process.

Art Eatman
February 15, 2011, 09:25 PM
The legal aspects seem to have been well-covered, and we don't need any more politics. :)

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