As Marbury v. Madison showed us, the law is what the Court says it is; that is, until a subsequent Court decides otherwise or Congress nullifies it. A couple cases in point: Dred Scott v. Sandford (overturned by the 14th Amendment); Plessy v. Ferguson (Brown v. Board of Education rendered it moot); United States v. Cruikshank (D.C. v. Heller and MacDonald v. City of Chicago eviscerated that).
Dred Scott was not overturned by Congress. An Amendment is not ratified by Congress. Congress lacks the power to overturn a Supreme Court interpretation of the Constitution. It can issue legislation which overturns a Supreme Court interpretation of a Federal statute. A constitutional amendment is not a legislative act. It is a sovereign act of the people.
Brown directly overturned Plessy, stating that separate but equal was not equal.
Heller and McDonald did not eviscerate Cruikshank. As the Court stated at 570 U.S. 620-21,
We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment.United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment … means no more than that it shall not be infringed by Congress.” 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). We described the right protected by the Second Amendment as “'bearing arms for a lawful purpose’”22 and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.23
22 Justice Stevens’ accusation that this is “not accurate,” post, at 39, is wrong. It is true it was the indictment that described the right as “bearing arms for a lawful purpose.” But, in explicit reference to the right described in the indictment, the Court stated that “The second amendment declares that it [i.e., the right of bearing arms for a lawful purpose] shall not be infringed.” 92 U. S., at 553.
23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
And at 554 U.S. 625, Opinion of the Court,
We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.
Cruikshank considered whether the 2nd Amendment applied to the States under the Privileges and Immunities clause. It did not consider whether it applied under the Due Proccess clause. That argument was not made to the Cruikshank court. Heller was a case brought by the District of Columbia and did not apply to the States. McDonald found that the Second Amendment applied to the States under the Due Process clause.
Only such provisions of the Bill of Rights that have been selectively incorporated by the Supreme Court against the States are applicable to the States. I promise I am not the one who created the process of selective incorporation.
McDonald v. Chicago, 561 U.S. 742, 757-759 (2010)
The Court reversed all of the convictions, including those relating to the deprivation of the victims’ right to bear arms. Cruikshank, 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose “is not a right granted by the Constitution” and is not “in any manner dependent upon that instrument for its existence.” Id., at 553. “The second amendment,” the Court continued, “declares that it shall not be infringed; but this … means no more than that it shall not be infringed by Congress.” Ibid. “Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” Heller, 554 U. S., at 620, n. 23.[...]
As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of “selective incorporation” under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory.
Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are binding on the States through the Due Process Clause. In Cruikshank, the Court held that the general “right of the people peaceably to assemble for lawful purposes,” which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551–552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a “fundamental righ[t] … safeguarded by the due process clause of the Fourteenth Amendment.” De Jonge v. Oregon, 299 U. S. 353, 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.
“Dred Scott was not overturned by Congress.”
Did you not read my exact comment? I said, “Dred Scott v. Sandford (overturned by the 14th Amendment).” I didn’t say Dred Scott was overturned by Congress.
“Heller and McDonald did not eviscerate Cruikshank. As the Court stated at 570 U.S. 620-21...”
Yeah, I think they did. Cruikshank sidelined the Fourteenth Amendment by establishing the State Action Doctrine, which meant the Fourteenth Amendment only applied to state and local government, but not to private individuals (which, in my opinion, was a very twisted interpretation of the Fourteenth Amendment). Cruikshank established that the Second Amendment only protects an individual’s rights to bear arms but only the states can create that right. In other words, Cruikshank held that there was no Constitutional right to “keep and bear arms,” but that right can only be created by the state or local government, and the Second Amendment would “protect” that right if created by state or local government. Not surprisingly, Cruikshank was applied to deny blacks their Second Amendment rights.
From the Cruikshank ruling: “This (the Second Amendment) 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, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constitution of the United States.”
Heller endorsed the right of the individual to keep and bear arms in his or her own self defense, independent of any state power to restrict that right to service in a state militia.
In McDonald v. Chicago (2010), SCOTUS held that the Fourteenth Amendment made the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states (i.e., that the right is pre-existing, and is not dependent on a state creating one, and the states must abide by that).
Anyway, that’s how I read them.