Breyer: Madison wrote 2nd Amendment to appease the states

posted at 10:12 am on December 13, 2010 by Ed Morrissey

It’s not just the Constitution that is a “living document,” as Supreme Court Justice Stephen Breyer proved yesterday when discussing the Second Amendment.  Breyer argued that James Madison only included the right to bear arms reluctantly, and only because the states wouldn’t sign the Constitution for fear of creating an overmighty central government.  That’s why he voted against the majority in the Heller decision that overturned the federal handgun ban in Washington DC:

Appearing on “Fox News Sunday,” Breyer said history stands with the dissenters in the court’s decision to overturn a Washington, D.C., handgun ban in the 2008 case “D.C. v. Heller.”

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,” said Breyer, adding that historians characterize Madison’s priority as, “I’ve got to get this document ratified.”

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

That’s a mighty big if, and it depends on ignoring the entire context of colonial life.  The founders didn’t envision government on any level being able to utterly secure public safety, not even in the cities.  Families needed guns for self-defense, and not just on the frontier from animals and hostile Native Americans and French and Spanish explorers, either.  Then, as now, if families waited for the local constabulary to protect them from thieves and marauders, they’d find themselves either dead or homeless in short order.

Madison also considered the right to bear arms an important check on federal power, too, and didn’t reluctantly come to that position to appease the states into signing the Constitution.  All Breyer needed to do to discover this was actually read Madison on the subject in Federalist 46, where Madison makes clear the role of states and men at arms in keeping the central government from overwhelming their sovereignty, emphases mine:

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.

On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

That doesn’t sound at all like a man who had to reluctantly guarantee that Americans would have those arms at hand in the extremity of need.  Indeed, Madison makes his case poetically clear that the individual liberties the Constitution guaranteed against federal incursion were in fact guaranteed by the Second Amendment.  Breyer’s argument is fanciful at best, and self-serving to an inordinate degree.

Update: The American Pundit adds an important argument — so what?

But there’s another point here: Who cares what Madison’s intent was? Who cares why the Second Amendment was added? Who cares what the motivation for its inclusion was? It’s there.

Is Breyer now saying that judges, including the Supreme Court, can ignore rights specifically guaranteed in the Constitution based upon the motivation for their inclusion? That judges can decide explicit rights don’t exist because they weren’t included in good faith? Wow.

To say that’s a dangerous precedent is probably the biggest understatement on this blog. That would mean a judge could decide you no longer have the right to free speech or freedom of the press because, hey, those rights were only included to appease one group needed for ratification.

There is a difference between treating a constitution of any form as a philosophical statement and as a legal document.  The former is open for interpretation, while the latter should be used textually in order to make compliance and enforcement plain.  We have always considered the Constitution to be the foundational legal document of the United States, and that’s how the court should use it as well.  The Second Amendment, and everything else that’s in the Constitution, should be assumed to mean what it says, and if Congress and the states find that problematic, then they can amend it through the processes the Constitution prescribes for that purpose.


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Being liberal means never having to say anything that is factually accurate.

coldwarrior on December 13, 2010 at 10:15 AM

No matter what Madison’s motive, the plain language is there, and you have to uphold it. The Constitution is not a Chinese menu where you get to choose one from column A and one from column B.

rbj on December 13, 2010 at 10:16 AM

Let’s accept for a moment that Breyer is right and Madison reluctantly included it in the Constitution to appease the states. It’s wrong, of course, but let’s accept it.

By Breyer’s logic we can ignore rights present in the Constitution because the motive behind including them wasn’t pure? We can throw out rights present in the Constitution if we decide the individual who authored them had the wrong intentions?

Good Lord.

amerpundit on December 13, 2010 at 10:16 AM

Bozos at the helm.

Shy Guy on December 13, 2010 at 10:17 AM

And they ratified it.

And it’s law.

And you can’t just ignore it because you don’t like it.

Kind of like ObamaCare.

The Constitution. It’s a big f-ing deal. Unless, you know, you don’t like what it says. Then, if you’re a liberal SCOTUS Justice, you ignore it or pretend it says something it doesn’t say.

Good Lt on December 13, 2010 at 10:17 AM

Of course, back in Madison’s day, Breyer would have been considered a traitor and hung from the gallows.

TexasJew on December 13, 2010 at 10:17 AM

I saw this smug nozzle on FNS. This is what passes for intellect on the left.

Joe Mama on December 13, 2010 at 10:17 AM

the plain language is there, and you have to uphold it. The Constitution is not a Chinese menu where you get to choose one from column A and one from column B.

The left believes you can write your own menu.

William Amos on December 13, 2010 at 10:18 AM

Unelected nitwits deciding the most important political questions, and they hold this position for life. You can call a system like this a lot of things, but ‘democratic’ it is not.
Fix this first.

james23 on December 13, 2010 at 10:19 AM

Hey….lawyers go judge-shopping…and judges go historian-shopping.

Patrick S on December 13, 2010 at 10:20 AM

Even if Breyer was right about Madison, that still doesn’t void the 2nd Amendment. With his logic, you could disallow any compromise legislation because they didn’t really mean it! Breyer’s is a stunningly stupid argument.

zmdavid on December 13, 2010 at 10:20 AM

Is Breyer actually arguing that the Constitution is in error because Madison feared it might not be ratified without the 2nd Amendment?

Seems to me he could then argue that any vote that was not unanimous should be invalid.

BobMbx on December 13, 2010 at 10:21 AM

um…*stating the obvious isn’t above my paygrade: the document that was ratified is more important then the documents surrounding the intent of one individual.
Seriously though, these libtards have gone overboard on their hero worship…Their representative SCOTUS is willing to overthrow the agreement that 50 states made for the supposed “intent” of one man? Meh.

Osis on December 13, 2010 at 10:21 AM

Two face Liberal is what Breyer is….

hawkman on December 13, 2010 at 10:23 AM

If he fails to preserve it, protect it, and defend it, then he should be removed from office and replaced with someone who will actually uphold their oath.

Greek Fire on December 13, 2010 at 10:23 AM

I watched this yesterday and was amazed that someone so out of touch with the principles of this nation was already in such a position of power before the two were installed by Obama. He’s like a nutty grand parent that you listen to and agree with to be polite.

Hening on December 13, 2010 at 10:23 AM

And they ratified it.

And it’s law.

And you can’t just ignore it because you don’t like it.

He’s not saying it should be ignored. He’s saying that from a historical perspective, it was drafted to protect the states from the national government federalizing state militias, and to provide a state “check” against federal military power. And so it should be interpreted differently.

The Constitution. It’s a big f-ing deal. Unless, you know, you don’t like what it says. Then, if you’re a liberal SCOTUS Justice, you ignore it or pretend it says something it doesn’t say.

Good Lt on December 13, 2010 at 10:17 AM

Er, he’s not ignoring it. And he’s probably right on the history. Your individual rights view was an extreme minority view until relatively recently. And it still is the minority view among historians. Just a few decades ago, it was Burger who said:

[The Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies–the militias–would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

crr6 on December 13, 2010 at 10:25 AM

So what, even if it is there only to appease the States, then isn’t that part of the deal? “Breyer argued that James Madison only included the right to bear arms reluctantly, and only because the states wouldn’t sign the Constitution for fear of creating an overmighty central government”, and since when did this change? I would argue that it is even more of a threat today than then!

rgranger on December 13, 2010 at 10:25 AM

If the 2nd Amendment was included to appease, then why make it #2? Drop it down the list if it’s a throw-in. As it is, it’s neighbor is #1, the Freedom of Speech thingy. Madison gave gun rights a silver medal to keep a few people happy? Come on, man!!!

joejm65 on December 13, 2010 at 10:25 AM

Take away Breyer’s security detail and then tell him he can’t carry a handgun to protect himself. Perhaps he will rethink his reasoning……….but, I doubt it.

SC.Charlie on December 13, 2010 at 10:25 AM

We need to be able to impeach Justices for incompetence.

zmdavid on December 13, 2010 at 10:25 AM

Is Breyer actually arguing that the Constitution is in error because Madison feared it might not be ratified without the 2nd Amendment?

BobMbx on December 13, 2010 at 10:21 AM

No.

crr6 on December 13, 2010 at 10:25 AM

does the Left even wait anymore for the ink to dry on their re-writes of history before they quote it as fact?

Justrand on December 13, 2010 at 10:25 AM

ALL of the Bill of Rights were added as an “appeasement” to make sure the Constitution would be ratified. Some said the Constitution was clear and that the BoR were redundant.

As we have found out over the years, those that wanted the rights spelled out were correct, and even at that, the plain language is abused at every turn by government.

If Justice Breyer is so worried about the intent of Madison, why does he allow the federal government to become so large and controlling via the Commerce Clause? Obviously, the Founders saw the federal government as small and limited – they would be shocked at the power it now exerts over the daily lives of the citizens.

SouthernRoots on December 13, 2010 at 10:26 AM

So the states were holding the Constitution hostage but those who complained about that were sanctimonious? Who knew?

Seth Halpern on December 13, 2010 at 10:27 AM

They not only needed guns for protection, they needed them to eat. Dad had to go out and shoot dinner, so the family would eat.

Wethal on December 13, 2010 at 10:27 AM

Always remember that whenever anybody says “Madison wanted this to be the case thanks to this provision of the Bill of Rights” the person is treating the first ten amendments as though it was all up to JM. But they were amendments to the Constitution, for crying out loud; they had to be voted up by two-thirds of Congress and three-quarters of the states. Even if Breyer was correct about Madison’s intent, that doesn’t really control the issue, as there were a couple hundred other men who had to be on board for the amendment to pass.

radjah shelduck on December 13, 2010 at 10:27 AM

Breyer is living proof that liberalism is a mental disorder and he is in the latter stages.

volsense on December 13, 2010 at 10:27 AM

Just shocking.

And FWIW

If 2nd amendment doesn’t fit the present day, there is a process for changing the constitution. That should be sufficient.

SarahW on December 13, 2010 at 10:29 AM

It’s so sad that people like this are in Congress, but thank God this ignorant soul is only one out of 435 votes – I mean, it isn’t like he’s a “scholarly” judge in a very powerful position …

toliver on December 13, 2010 at 10:29 AM

Breyer must have taken O’so wrong’s constitutional law course.

hip shot on December 13, 2010 at 10:29 AM

Let’s give his seat to Ed, who gets America.

thebrokenrattle on December 13, 2010 at 10:29 AM

How many cases did Breyer decide based on “intent” as opposed to actual Constitutionality and matters of law? All? Most? A good chunk?

This is how the disease of liberalism poisons the entire well.

The Second Amendment is invalid because of the intent of the writer? How about the rest of them? How about the entire Constitution? Most of the original signers either had slaves or were not so much opposed to slavery. Thus, being “evil” their signatures on this the greatest document are invalid?

Can we establish a national religion because some of the Signers were members of various churches? Thus, we have to question their motives and intent behind the establishment clause? Pick up your copy of the Constitution…and apply Breyer’s stilted logic to any or all of it.

In the end, you have nothing…zero…a bunch of meaningless words.

Or, maybe that is the intent of the liberals?

coldwarrior on December 13, 2010 at 10:29 AM

Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,”

And where are the state militias today, hm?

So glad that Breyer thinks the Second Amendment is toilet paper because Madison made a shortsighted assumption. At this point, I think a quart of Breyer’s Vanilla would be a better SC justice.

MadisonConservative on December 13, 2010 at 10:31 AM

Obama just signed Obamacare into law to appease his base so that he’d get re-elected. We should probably just ignore that, too.

How absurd is it that a judge on the SUPREME COURT is saying we should just ignore written law because of the circumstances under which it was written?? The guy should be impeached.

Mord on December 13, 2010 at 10:31 AM

Using Breyer’s logic one could also argue that the writers of the 14th Amendment never intended most of the crap that judges like Breyer have been ramming down the throats of the American people for two generations.

sdd on December 13, 2010 at 10:32 AM

Just shocking.

SarahW on December 13, 2010 at 10:29 AM

It’s only shocking if your only exposure to the 2nd amendment is from NRA press releases and blog posts on HA. Breyer’s view is the majority view, and it always has been.

crr6 on December 13, 2010 at 10:34 AM

Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

So the next attempt to take away American rights granted to us in the Constitution is to ignore what was ratified and make judgments based on what “you think they meant”.

How about you check your activism at the door and make rulings based on what is actually there and not what you “want” to be there.

Reminds me of the “jobs saved” canard dreamed up by liberals to deflect from the fact that their economic policies did not create jobs.

Baxter Greene on December 13, 2010 at 10:34 AM

How absurd is it that a judge on the SUPREME COURT is saying we should just ignore written law because of the circumstances under which it was written?

Mord on December 13, 2010 at 10:31 AM

He’s not saying that.

crr6 on December 13, 2010 at 10:34 AM

Er, he’s not ignoring it. And he’s probably right on the history. Your individual rights view was an extreme minority view until relatively recently. And it still is the minority view among historians. Just a few decades ago, it was Burger who said:

[The Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies–the militias–would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

crr6 on December 13, 2010 at 10:25 AM

And Burger was an illiterate yutz if he was unable to comprehend the words “the right of the people to keep and bear arms shall not be infringed”. It didn’t say the right of the militias. It said that because we needed militias(uncontested argument of the second amendment), we needed people to be armed to make up those militias.

Oh…and 15 years ago, “militia” and “militiaman” became slurs in the media. Does that opinion ape a civil right?

MadisonConservative on December 13, 2010 at 10:35 AM

They not only needed guns for protection, they needed them to eat. Dad had to go out and shoot dinner, so the family would eat.

Wethal on December 13, 2010 at 10:27 AM

The founders erred by not creating public sector unions. If they had, then state governments would have created hunting organizations that provided food for families hence doing away with the need for “Dad”. Mom would then have been “liberated” and could have petitioned the government for free abortion services provided by the public sector unions.

See all the progress the 2nd Amendment prevented? The evil patriarchy continued for well over a hundred years until women realized they could free their boobs by burning their bras, giving out “free love” and creating a need for abortion.

darwin on December 13, 2010 at 10:36 AM

For all his supposed “intelligence” Breyer is an idiot.

GarandFan on December 13, 2010 at 10:36 AM

You idiots, the Constitution is what I say it is.

Hummer53 on December 13, 2010 at 10:36 AM

It’s only shocking if your only exposure to the 2nd amendment is from NRA press releases and blog posts on HA. Breyer’s view is the majority view, and it always has been.

crr6 on December 13, 2010 at 10:34 AM

Wow. Nice anti-gun talking point. The majority has always had a weapon in the house, so are you arguing that most of those people don’t believe they have a right to that firearm?

MadisonConservative on December 13, 2010 at 10:36 AM

He’s not saying that.

crr6 on December 13, 2010 at 10:34 AM

He’s implying it, and you know it. I know you’re a lib, but can’t you at least be intellectually honest?

MadisonConservative on December 13, 2010 at 10:37 AM

So, basically, what Breyer believes the founders were thinking is more important than what they actually codified.

Vashta.Nerada on December 13, 2010 at 10:39 AM

And Burger was an illiterate yutz

That actually is a fair point. He was at best, a mediocre justice.

if he was unable to comprehend the words “the right of the people to keep and bear arms shall not be infringed”. It didn’t say the right of the militias.

Well there are people in militias. And the preamble does say “militias.”

It said that because we needed militias(uncontested argument of the second amendment), we needed people to be armed to make up those militias.

Sure. Is that your view? Because under it, the amendment only protects arms which are reasonably related to a well regulated militia. Not for strictly private use.

Oh…and 15 years ago, “militia” and “militiaman” became slurs in the media. Does that opinion ape a civil right?

MadisonConservative on December 13, 2010 at 10:35 AM

I’m not sure what your point is here.

crr6 on December 13, 2010 at 10:39 AM

He’s implying it, and you know it. I know you’re a lib, but can’t you at least be intellectually honest?

MadisonConservative on December 13, 2010 at 10:37 AM

Libs can’t ever be intellectually honest!
Everything they believe is bullshit.

Jenfidel on December 13, 2010 at 10:39 AM

this turkey should be impeached

reliapundit on December 13, 2010 at 10:41 AM

How absurd is it that a judge on the SUPREME COURT is saying we should just ignore written law because of the circumstances under which it was written?

Mord on December 13, 2010 at 10:31 AM

He’s not saying that.

crr6 on December 13, 2010 at 10:34 AM

Of course not, he does one better, he’s re-writing history to fit his own agenda, as liberals will always do.

ndanielson on December 13, 2010 at 10:41 AM

He’s not saying that.

crr6 on December 13, 2010 at 10:34 AM

You are either dumb or trying to pick a fight. I don’t think you are dumb.

He wants to ban all private gun ownership. So do you, I suspect. Well, it aint happening but feel free to hold your breath until it does.

Mord on December 13, 2010 at 10:41 AM

It must be nice, to be able to pick and choose the Constitution you feel like forcing on those 307 million Americans he talks about.

Not only does Breyer misinterpret Madison, he denies the existence of virtually every other Founding Father.

” A FREE PEOPLE OUGHT NOT ONLY TO BE ARMED AND DISCIPLINED, BUT THEY SHOULD ALSO HAVE SUFFICIENT ARMS AND AMMUNITION TO MAINTAIN
A STATUS OF INDEPENDENCE FROM ANY WHO MIGHT ATTEMPT TO ABUSE THEM …
WHICH WOULD INCLUDE THEIR OWN GOVERNMENT!”

GEORGE WASHINGTON

Speakup on December 13, 2010 at 10:42 AM

Saw this and couldn’t believe my ears and eyes. The man is personification of a pointy headed Liberal college professor type with a huge ego and know it all attitude that is mostly wrong.

Unfortunately some smoe nominated him to a lifetime position judging the writings of his betters!

dhunter on December 13, 2010 at 10:42 AM

Newsflash: the entire PURPOSE of the Constitution was to set up a system that “appeases” the citizens, and to protect them from an overpowerful federal government.

And that is supposed to be the sole job of all elected and appointed government officials.

How can anyone raised in America — let alone a Supreme Court “justice” — not know that?

logis on December 13, 2010 at 10:42 AM

Breyer’s view is the majority view, and it always has been.

crr6 on December 13, 2010 at 10:34 AM

That doesn’t mean it’s correct.

It was once the majority view of scientists that the sun revolved around the earth. Didn’t make it true.

AZCoyote on December 13, 2010 at 10:42 AM

Madison makes his case poetically clear that the individual liberties the Constitution guaranteed against federal incursion were in fact guaranteed by the Second Amendment.

What happened in Iran is a great example of why we have a second amendment.

…….There where millions of people in Iran that watched election fraud…
….men,women,and children being shot in the streets
…………men,women,and children dragged off to prison for protesting against the government
…………….men,women,and children being beaten and raped

…..who wished they had the right to bear arms.

Baxter Greene on December 13, 2010 at 10:42 AM

Breyer argued that James Madison only included the right to bear arms reluctantly, and only because the states wouldn’t sign the Constitution for fear of creating an over mighty central government.

But he did include the 2nd Amendment and we do have the right to bear arms. So Breyer can sux on it.

COMMUNIST Mao Tse Tung: Political power grows out of the barrel of a gun.

Americans “Roger That”

Dr Evil on December 13, 2010 at 10:44 AM

Clearly there is a significant part of the American population unsuited to self-rule, Stevens among them. I call them neo-monarchists.

For some reason, he thinks that Madison was, and still is, our king. Setting aside the buffoonish historical claims, Stevens does not have the capacity to understand republican governance and the rule of law. As with most Democrats, he needs an authority figure as a guide star to find his place in the world.

HelenW on December 13, 2010 at 10:45 AM

Breyer’s view is the majority view, and it always has been.

crr6 on December 13, 2010 at 10:34 AM

Obviously it wasn’t the majority view on D.C. v. Heller.

DarkCurrent on December 13, 2010 at 10:46 AM

..on a related matter, Ed, how do you write this cogent stuff so early in the morning? I am constantly amazed at your incredible powers of reasoning, logic, rhetoric, and composition for such an early hour. (And, yes, I realize you are on EST.)

If it can be attributed to the caffeine delivery system you put to use, you should seriously consider negotiating an endorsement deal with that product’s company.

The War Planner on December 13, 2010 at 10:46 AM

Breyer’s view is the majority view, and it always has been.

crr6 on December 13, 2010 at 10:34 AM

With whom?

ladyingray on December 13, 2010 at 10:47 AM

Wow. Nice anti-gun talking point. The majority has always had a weapon in the house, so are you arguing that most of those people don’t believe they have a right to that firearm?

MadisonConservative on December 13, 2010 at 10:36 AM

Not sure what getting at here….just because the 2nd amendment isn’t meant to protect an individual right to bear arms, doesn’t mean that people can’t own guns. It just means there’s nothing restricting the federal government from regulating or outright banning gun ownership if they so choose to (of course, as long as doing so doesn’t restrict ownership which is reasonably related to a state militia).

And the people you’re referring to may very well have had a “right to bear arms” under their State Constitution.

He’s implying it, and you know it.

He’s really not. He was talking about the history of the amendment, and mentioned that as an anecdote. Just because he mentioned it doesn’t mean he think the amendment itself is invalid. I’m not sure where people are getting that conclusion from. It’s quite a leap.

I know you’re a lib, but can’t you at least be intellectually honest?

MadisonConservative on December 13, 2010 at 10:37 AM

I actually think that applies to you guys. I don’t mind when you make a normative argument, that the 2nd amendment should protect an individual right to bear arms. But you’re being intellectually dishonest when you make a descriptive argument that historically, the amendment was actually meant to protect an individual right. Now, as I hinted at above some of that isn’t intellectual dishonesty, some of it is the lack of exposure to sources outside of the NRA and blogs like this. But I know you for one are informed enough that you’ve read about the issue more broadly. Can you at least concede Breyer’s view is the majority view?

crr6 on December 13, 2010 at 10:47 AM

This Bill Clintoon for this piece of crap on SCOTUS.

Branch Rickey on December 13, 2010 at 10:47 AM

Sad insight into Breyer’s mindset. Even without the second amendment, I see know enumerated power to forbid\restrict gun ownership in the constitution.

Clearly this is a man who does not believe that the federal government is one of enumerated and limited powers.

WashJeff on December 13, 2010 at 10:47 AM

As with most Democrats, he needs an authority figure as a guide star to find his place in the world.

HelenW on December 13, 2010 at 10:45 AM

Bullcr@p. I hear the same slanderous nonsense from hardcore atheists about anyone who believes in any religion whatsoever.

Dark-Star on December 13, 2010 at 10:48 AM

He wants to ban all private gun ownership. So do you, I suspect.

Mord on December 13, 2010 at 10:41 AM

No he doesn’t and no I don’t.

crr6 on December 13, 2010 at 10:48 AM

It is odd how the Democrats can keep finding nuts to appoint. I would not even know where to start looking if I wanted to find a statist. Maybe it is because I don’t hang out in the “upper echelon” of society.

jeffn21 on December 13, 2010 at 10:48 AM

Update: The American Pundit adds an important argument — so what?

But there’s another point here: Who cares what Madison’s intent was? Who cares why the Second Amendment was added? Who cares what the motivation for its inclusion was? It’s there.

Well technically, it’s the difference between strict constructivism and originalism…

ninjapirate on December 13, 2010 at 10:49 AM

Update: The American Pundit adds an important argument — so what?

But there’s another point here: Who cares what Madison’s intent was? Who cares why the Second Amendment was added? Who cares what the motivation for its inclusion was? It’s there.

ninjapirate on December 13, 2010 at 10:49 AM

Next Breyer will say freedom of religion doesn’t really mean freedom of religion and was included only to appease some fanatics from New Jersey or something.

Oh, and the press … that was only included because Madison held a large interest in some local papers.

Neither are really needed because government can’t function properly with people practicing their faith freely and the press writing about government.

darwin on December 13, 2010 at 10:50 AM

Breyer’s view is the majority view, and it always has been.

crr6 on December 13, 2010 at 10:34 AM

That doesn’t mean it’s correct.

AZCoyote on December 13, 2010 at 10:42 AM

Of course, that’s true. But people here seem to be thinking Breyer’s theory is some wacko out-there idea. It’s really not.

crr6 on December 13, 2010 at 10:50 AM

Well there are people in militias. And the preamble does say “militias.”

It says “a well regulated militia being necessary to the security of a free state”. It’s a qualifier. It’s the reason. It says because we need militias in order to maintain a free and secure state, the right of THE PEOPLE to keep and bear arms shall not be infringed.

Sure. Is that your view? Because under it, the amendment only protects arms which are reasonably related to a well regulated militia. Not for strictly private use.

Well, the militia is made up of private citizens, is it not? That would make the arms private property.

I’m not sure what your point is here.

crr6 on December 13, 2010 at 10:39 AM

My point is that you can come up with what you consider to be “majority views”, but they are meaningless when it comes to the letter of law, particularly when discussing the Constitution.

Additionally, as you’ve stated that you’re in law school, how old are you? I’d be curious how you “know” what a majority view was 40 years ago.

MadisonConservative on December 13, 2010 at 10:50 AM

I’m more of the Jeffersonian view, myself.

Alden Pyle on December 13, 2010 at 10:51 AM

With whom?

ladyingray on December 13, 2010 at 10:47 AM

Big government types.

darwin on December 13, 2010 at 10:51 AM

But you’re being intellectually dishonest when you make a descriptive argument that historically, the amendment was actually meant to protect an individual right.
crr6 on December 13, 2010 at 10:47 AM

What was meant is not all that relevant. The second amendment as written is crystal clear as to the individual right to bear arms.

Vashta.Nerada on December 13, 2010 at 10:51 AM

From the duplicate thread in the headlines:

I saw him on Chris Wallace.

He doesn’t understand the Constitution – and it’s sad.

“A Well Regulated Militia” … now, you have to realize that the founders spoke a lot more formally than we do. They would often say thing like … “That farmer has a ‘well regulated’ field” … which meant, that the farmer had a very healthy and fertile field that produced excellent crops. They were not saying that the farmer “restricted” his field somehow. The term “regulated” was used interchangeably with “healthy”.

And the Militia – was every American citizen – and that has not changed. No libbies – the National Guard is NOT the militia.

And this is what this idiot on the SCOTUS doesn’t understand.

I actually laughed when he said that, if you can’t have a gun in one state – get on a train and go to another where you can. Uhm … does this apply to aboartion also Mr. Rocket Scientist?

HondaV65 on December 13, 2010 at 10:38 AM

toliver on December 13, 2010 at 10:51 AM

Additionally, as you’ve stated that you’re in law school, how old are you? I’d be curious how you “know” what a majority view was 40 years ago.

MadisonConservative on December 13, 2010 at 10:50 AM

Ever heard of this thing called ‘research’?

Wow…just wow.

Dark-Star on December 13, 2010 at 10:52 AM

It’s only shocking if your only exposure to the 2nd amendment is from NRA press releases and blog posts on HA. Breyer’s view is the majority view, and it always has been.
crr6 on December 13, 2010 at 10:34 AM

You don’t even seem like an actual liberal, you’re more like a caricature. Why does every opinion someone here has need to be based on some KOS-derived parody of what conservatives are instead of actual informed views? You act like a clown.

Bishop on December 13, 2010 at 10:52 AM

The question isn’t what Madison “intended” but what the people thought they were agreeing to when they ratified the amendment.

What do the words say? And what did the public think the words meant at that time?

For all we know, Madison could have intended to ban the eating of apple pie. As with all law, it doesn’t matter what they intended to do; it’s what the law says.

SteveMG on December 13, 2010 at 10:52 AM

The 2nd amendment should protect an individual right to bear arms.

The 2nd Amendment not only should protect that right: it does.
Which part of “shall not be infringed” don’t you and Breyer understand?

But you’re being intellectually dishonest when you make a descriptive argument that historically, the amendment was actually meant to protect an individual right.

Who’s being historically dishonest?
The Founders put the 2nd Amendment in there because the Brits had tried to strip the colonists of their right to bear arms!

Can you at least concede Breyer’s view is the majority view?

crr6 on December 13, 2010 at 10:47 AM

It’s not.
And for further enlightenment, research and read Thomas Jefferson’s cogent opinion regarding the proper role of “Judicial Review.”

Jenfidel on December 13, 2010 at 10:53 AM

What was meant is not all that relevant. The second amendment as written is crystal clear as to the individual right to bear arms.

Vashta.Nerada on December 13, 2010 at 10:51 AM

Now that’s intellectually dishonest. If there’s anything both sides agree on, it’s that the amendment isn’t “crystal clear” either way.

crr6 on December 13, 2010 at 10:53 AM

If the 2nd Amendment was solely for the purpose of having militias, then why aren’t the most up to date battle rifles issued to every person upon reaching adulthood? And rarely mentioned in the argument, shouldn’t we also be able to (bear) take those arms anywhere, since we are all part of the militia, according to the definition of the day?

Why do you suppose that the right to keep and bear arms was placed between the right to protest and the prohibition of quartering troops in private homes?

TugboatPhil on December 13, 2010 at 10:54 AM

What do the words say? And what did the public think the words meant at that time?

For all we know, Madison could have intended to ban the eating of apple pie. As with all law, it doesn’t matter what they intended to do; it’s what the law says.

SteveMG on December 13, 2010 at 10:52 AM

Oh great, another textualist, Scalia fanboy.

crr6 on December 13, 2010 at 10:54 AM

Her is a bigger point. Without the 2nd amendment the document might never had been ratified. therefore if madison included it in the document then he needed to to get the document passed. Therefore the 2nd amendment is a core foundation for the consitution. And if people like Breyer take it out then the document becomes meaningless because the rest of the consitution is based oon its inclusion. If people/states would not have voted to ratify without the 2nd amendment the document would not have passed.

unseen on December 13, 2010 at 10:55 AM

It just means there’s nothing restricting the federal government from regulating or outright banning gun ownership if they so choose to (of course, as long as doing so doesn’t restrict ownership which is reasonably related to a state militia).

I’m really wondering what the hell you define as “reasonably related to a state militia”. Automatic weapons produced after 1986 are banned. Aren’t automatic weapons reasonably related to a state militia? Aren’t explosives? Aren’t armored and offensive vehicles? Or are you thinking that the founders meant only flintlocks and muzzleloaders, and that the change in technology is not recognized by the amendment?

If you’re holding true to that definition, then you should personally be against the banning of what I mentioned above. And before you ask, the answer is yes, I am.

I don’t mind when you make a normative argument, that the 2nd amendment should protect an individual right to bear arms. But you’re being intellectually dishonest when you make a descriptive argument that historically, the amendment was actually meant to protect an individual right.

crr6 on December 13, 2010 at 10:47 AM

All I can say is that when you say that “the right of THE PEOPLE to keep and bear arms shall not be infringed” doesn’t mean that the right of THE PEOPLE to keep and bear arms shall not be infringed, you really have no ground to stand on and call anyone else intellectually dishonest.

MadisonConservative on December 13, 2010 at 10:56 AM

crr6 on December 13, 2010 at 10:25 AM

“…the right of the people” was referred to, not spawned, in the 2nd Amendment. It pre-exited the Bill of Rights. It was merely being recognized.

It’s so simple that to miss the point one must be an imbecile or a liberal. I think that means that you are doubly handicapped in this case.

Akzed on December 13, 2010 at 10:56 AM

“I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.”

George Mason/ Father of the Bill of Rights

(intent seems quite clear, eh?)

Ris4victory on December 13, 2010 at 10:56 AM

If there’s anything both sides agree on, it’s that the amendment isn’t “crystal clear” either way.

crr6 on December 13, 2010 at 10:53 AM

“the right of the people to keep and bear arms shall not be infringed”. I don’t see more than one way to read that.

Vashta.Nerada on December 13, 2010 at 10:56 AM

Of course, that’s true. But people here seem to be thinking Breyer’s theory is some wacko out-there idea. It’s really not.

crr6 on December 13, 2010 at 10:50 AM

Yep. It’s one idea popular with other wacko out-there ideas like those held by every tyrannical form of government in history.

Private gun ownership is the best insurance against tyranny.
The Founders knew it when they wrote the Constitution and we know it today.

Jenfidel on December 13, 2010 at 10:56 AM

Bishop on December 13, 2010 at 10:52 AM

Congratulations, you’ve just aptly described a good number of the ‘conservatives’ on HA.

Seriously, between the Palinites to the rabid gun-nuts to the anti-abortion-obsessed, some days coming on here is like browsing a cartoon book of how the left views the right. It’s appalling.

Dark-Star on December 13, 2010 at 10:57 AM

And for further enlightenment, research and read Thomas Jefferson’s cogent opinion regarding the proper role of “Judicial Review.”

Jenfidel on December 13, 2010 at 10:53 AM

Hamiltonians don’t read Jefferson, they are still busy smearing him LOL!

Dr Evil on December 13, 2010 at 10:57 AM

Oh great, another textualist, Scalia fanboy.

crr6 on December 13, 2010 at 10:54 AM

Wow. And you’re busy claiming that Breyer was objective in his opinion. Just breathtaking.

MadisonConservative on December 13, 2010 at 10:57 AM

Oh great, another textualist, Scalia fanboy.
crr6 on December 13, 2010 at 10:54 AM

Do you insist on being allowed to make up words when you play Scrabble?

Akzed on December 13, 2010 at 10:59 AM

Seriously, between the Palinites to the rabid gun-nuts to the anti-abortion-obsessed, some days coming on here is like browsing a cartoon book of how the left views the right. It’s appalling.

Dark-Star on December 13, 2010 at 10:57 AM

Yeah, and not long ago you were defending socialism. Now you come on here and call people who don’t think the 2nd amendment was arbitrary “rabid gun nuts”? Exactly what rights do you value, aside from the right to mouth off? Go back to the kiddies’ table.

MadisonConservative on December 13, 2010 at 10:59 AM

Breyer’s view is the majority view, and it always has been.
crr6 on December 13, 2010 at 10:34 AM

Breyer’s view has been the majority view of progressives for about 100 years it speaks nothing to the majority view since the founding. Don’t mix the two.

chemman on December 13, 2010 at 10:59 AM

There is nothing better than an uneducated public. I’m not suggesting that I knew what Madison wrote in the Federalist Papers but I could possibly be duped without an alternative media. While we need to keep an eye on all of rights, thank God for the First Amendment, long may it reign.

Cindy Munford on December 13, 2010 at 11:00 AM

Who cares what the motivation for its inclusion was? It’s there.

Hmm. As I remember, the concept of strict construction says that you interpret the Constitution in the light of the intent of the framers (either of the document as a whole or of an Amendment). So, you’ve got to give Breyer credit for trying strict construction, even if he gets it wrong. After all, he normally takes the other (“living document”) approach to reasoning…

Since the States were required to ratify any change to the Constitution, no Amendment to it would pass muster unless a supermajority (three fourths) of the States agreed. It took less than two years for that ratification to occur, indicating that the WORDS of the various Amendments were acceptable to the people in their own interpretation.

I think there is an alternative to both “strict construction” and “living document”, and that is to discern the intent of the ratifiers as superior to that of the framers.

unclesmrgol on December 13, 2010 at 11:00 AM

What did Madison think about leftist trash that just makes it up, as they go?

One amendment I could go for (and I go for virtually none when it comes to amending the constitution) is for subjecting supreme court justices to election every 10 years or so, like many states. It’s time to get rid of this dead leftist trash weight…just like Iowa did.

MNHawk on December 13, 2010 at 11:00 AM

Why does every opinion someone here has need to be based on some KOS-derived parody of what conservatives are instead of actual informed views?

Bishop on December 13, 2010 at 10:52 AM

Because a large amount of the opinions here actually are tantamount to a KOS-derived parodies of what conservatives and aren’t based upon actual informed views.

That’s not true for everyone, of course.

crr6 on December 13, 2010 at 11:01 AM

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