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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Whatever.

Proud Rino on December 13, 2010 at 11:24 AM

That statement is always a good sign that you’re speaking with a douche.

MadisonConservative on December 13, 2010 at 11:36 AM

If the true purpose of the Second Amendment is to arm the citizenry against the federal government

Proud Rino on December 13, 2010 at 11:28 AM

Specious argument. The second amendment says nothing about arming the citizenry against the federal government.

Vashta.Nerada on December 13, 2010 at 11:36 AM

Well, that’s your opinion buddy and you know what they say about opinions. Now, go back to your gardening or whatever it is you do these days.

rplat on December 13, 2010 at 11:37 AM

I love Texas, when our child was taking Out Door Trails, her teacher told the parents if your child has a gun, I will be happy to teach them how to use it. A little off topic but she placed very well in the archery competition. Her teacher said she was a natural ;)

I wonder what Madison’s position was on bows and arrows (pro or con) LOL!

Dr Evil on December 13, 2010 at 11:37 AM

I wonder when I’m going to get an answer to my question.

Proud Rino on December 13, 2010 at 11:37 AM

Whoa! That’s just too simple.

DarkCurrent on December 13, 2010 at 11:35 AM

Yeah.

Then we’d have to go about changing laws via legislatures and through the democratic process.

And that’s like, hard, messy and takes time and stuff.

Good Lt on December 13, 2010 at 11:38 AM

Specious argument. The second amendment says nothing about arming the citizenry against the federal government.

Vashta.Nerada on December 13, 2010 at 11:36 AM

That’s a non sequitur. I never made the claim that it did.

Proud Rino on December 13, 2010 at 11:38 AM

I’m still waiting on an answer to my question. Everyone seems to agree that it’s a stupid question, but no one wants to answer it. Which is kind of weird, since the Second Amendment is so clear!

Proud Rino on December 13, 2010 at 11:36 AM

arm
2    /ɑrm/ Show Spelled[ahrm] Show IPA
–noun
1.
Usually, arms. weapons, esp. firearms.

Now go away, you feckless nincompoop.

MadisonConservative on December 13, 2010 at 11:38 AM

Yeah, because the dangers of nuclear power really have shown their hand in France, where they use nuclear more than any other country, right?

MadisonConservative on December 13, 2010 at 11:35 AM

Science fail, MadCon.

Nuclear power plants have literally hundreds of safety devices, with dozens of people watching 24/7 to see that nothing goes wrong. In an emergency they can call on a small army of other people, all trained experts, from around the globe to assist them.

You won’t get anywhere near that level of safety in a personal vehicle, or even a bus-sized one.

Dark-Star on December 13, 2010 at 11:39 AM

Do people have the right to keep arms? Biological weapons? Chemical weapons? What’s an “arm”, exactly?

Proud Rino on December 13, 2010 at 11:15 AM

Lets stick to the general from of arms that existed when the document was written.

Count to 10 on December 13, 2010 at 11:39 AM

Do people have the right to keep arms? Biological weapons? Chemical weapons? What’s an “arm”, exactly?

Proud Rino on December 13, 2010 at 11:15 AM

ALL OF IT. Arms == Weapons.

Don’t be obtuse, read it. Read the Federalist Papers. Is it really that hard?

Every Amendment in the Bill of Rights, speaks to Individual Rights.

Whether you like it or not, hundreds of everyday items can and will be made into weapons. Horrible, ugly, destructive and deadly weapons.

I have 2 questions for people who “hate guns”? Why do you hate the fact that another person may own, have and use a gun? What are you really afraid of?

orbitalair on December 13, 2010 at 11:39 AM

Then we’d have to go about changing laws via legislatures and through the democratic process.

And that’s like, hard, messy and takes time and stuff.

Good Lt on December 13, 2010 at 11:38 AM

Yeah, unless the law involves gun control, in which case it’ best to let judges decide what the people are ‘allowed’ to decide via the democratic process.

Proud Rino on December 13, 2010 at 11:39 AM

Oh he doesn’t just like his guns, he talks about teaching his sons how to use guns…Begala is a Texan after all.

Dr Evil on December 13, 2010 at 11:33 AM

There’s a reason even some libs have to respect the Second Amendment – harsh reality makes one realize the necessity of the right to keep and bear arms.

MadisonConservative on December 13, 2010 at 11:40 AM

Lets stick to the general from of arms that existed when the document was written.

Count to 10 on December 13, 2010 at 11:39 AM

So, people are allowed to keep flintlock muskets, but that’s it?

Proud Rino on December 13, 2010 at 11:41 AM

Then we’d have to go about changing laws via legislatures and through the democratic process.

And that’s like, hard, messy and takes time and stuff.

Good Lt on December 13, 2010 at 11:38 AM

Good lord that’s some powerful irony.

crr6 on December 13, 2010 at 11:41 AM

Yeah, unless the law involves gun control, in which case it’ best to let judges decide what the people are ‘allowed’ to decide via the democratic process.

Proud Rino on December 13, 2010 at 11:39 AM

You mean like abortion, gay marriage, and border control in AZ?

ladyingray on December 13, 2010 at 11:42 AM

Proud Rino on December 13, 2010 at 11:32 AM

The 2nd was created to allow the citizenry to protect themselves against criminal elements and against a rogue government, all of it enshrined in the natural rights of man. But in doing so a citizen cannot act in an indiscriminate manner against those who are NOT trying to harm them.

It’s simple really, if you take the time to get past the “But why can’t I pull Little Boy behind me in a wagon everywhere I go?” stupidity.

Bishop on December 13, 2010 at 11:42 AM

If the British had the gear in the 1700′s that we did today, we’d all be drinking tea and singing “God Save the Queen”.

Dark-Star on December 13, 2010 at 11:34 AM

The British were THE most powerful nation in the world at that time.
When Washington was headquartered in NYC, the British had the largest armada ever assembled (Yes, bigger even than the one against the Spanish Armada!) sail around the island to intimidate him and we had no navy at all.
They threw everything they had at us at the time, which is all anyone can fight with, and we still ain’t drinking tea and singing God Save the Queen!

Jenfidel on December 13, 2010 at 11:42 AM

Science fail, MadCon.

Nuclear power plants have literally hundreds of safety devices, with dozens of people watching 24/7 to see that nothing goes wrong. In an emergency they can call on a small army of other people, all trained experts, from around the globe to assist them.

You won’t get anywhere near that level of safety in a personal vehicle, or even a bus-sized one.

Dark-Star on December 13, 2010 at 11:39 AM

Science fail, Dark-Star. The size and scope of a nuclear-based engine for a mid-sized car would be far smaller and less dangerous than what you would find in a power plant designed to power millions of homes, and hence sufficient and even overzealous safeties would be entirely within the grasp of modern engineering.

Really, how many times do I have to say this? Learn more before you open your mouth and prove you know very little about which you’re speaking.

MadisonConservative on December 13, 2010 at 11:43 AM

Good lord that’s some powerful irony.

crr6 on December 13, 2010 at 11:41 AM

Really?

I’m advocating that laws and amendments be decided through the democratic process, through legislatures and elections rather than through through judicial fiat, and that’s, um, ironic?

Do explain.

Good Lt on December 13, 2010 at 11:44 AM

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?

Yes and yes!!!

Do people have the right to keep arms? Biological weapons? Chemical weapons? What’s an “arm”, exactly?

Proud Rino on December 13, 2010 at 11:15 AM

It’s exactly this kind of thinking that’s tanked this country. Common sense is dead! Literally!!! That is the same kind of thinking lawyers used to sue McDonalds because the coffee was *GASP* HOT!!! *SIGH*

The founders didn’t envision government on any level being able to utterly secure public safety, not even in the cities.
You just pulled that out of thin air. I agree with your conclusion, that a) Madison was not reluctant in his writings and b) it doesn’t freaking matter one way or the other, but you really did pull that one out of thin air.

ernesto on December 13, 2010 at 11:13 AM

So you believe government, on any level should supply an armed guard or police officer to each and every door, to protect the citizens?

I think this (“utterly secure public safety”) statement, if read correctly is not pulling anything out of thin air, but is accurate, and true.

Sheesh. For people wanting to base their arguments by rearranging, or outright changing what the words mean…they sure do miss what the words DO mean.

capejasmine on December 13, 2010 at 11:45 AM

Proud Rino on December 13, 2010 at 11:36 AM

I will take a stab at it. Most people accept that firearms can reasonably be controlled when used. NBC are indiscriminate and have the capacity to injure/kill far outside the range of force needed to defend yourself. Are they correct in excluding it from protection under the 2nd Amendment some would argue yes some would argue no.

chemman on December 13, 2010 at 11:45 AM

I’m still waiting on an answer to my question.

Proud Rino on December 13, 2010 at 11:36 AM

Do people have the right to keep arms? Biological weapons? Chemical weapons? What’s an “arm”, exactly?

Proud Rino on December 13, 2010 at 11:15 AM

ALL OF IT. Arms == Weapons

orbitalair on December 13, 2010 at 11:39 AM

And there it is, folks. The ultimate example of raving right-wing gun-fanatic nonsense.

Orbitalair, if you REALLY believe that (I suspect you don’t and you’re only pretending to be a total loon), I invite you to try and secure your own personal stocks of such weapons.

Your ‘right’ to keep them might be recognized all of sixty seconds…until the federal agents who’ve stormed your house can stop laughing.

Dark-Star on December 13, 2010 at 11:45 AM

I’m advocating that laws and amendments be decided through the democratic process, through legislatures and elections rather than through through judicial fiat, and that’s, um, ironic?

Do explain.

Good Lt on December 13, 2010 at 11:44 AM

Do you support Heller and McDonald?

crr6 on December 13, 2010 at 11:45 AM

All the rev0lution fantasies in the world won’t make up for a gigantic technology imbalance.

Dark-Star on December 13, 2010 at 11:34 AM

Yes, the fact that the US successfully forced their will on Vietnam is proof of this.

blink on December 13, 2010 at 11:40 AM

True, the US war machine has a great big long supply and maintenance train to keep the spear tip sharp. That will all fall apart once conflict starts here. You will be amazed how fast it falls apart. All these ‘high tech’ things requires a deal of effort to keep running.

Besides we seem to be doing such a great job in the hellhole. Right?

Hearts and minds.

orbitalair on December 13, 2010 at 11:46 AM

Yeah, unless the law involves gun control, in which case it’ best to let judges decide what the people are ‘allowed’ to decide via the democratic process.

Proud Rino on December 13, 2010 at 11:39 AM

I really hope that was sarcasm. If not…good f**king grief.

MadisonConservative on December 13, 2010 at 11:46 AM

Yeah, unless the law involves gun control, in which case it’ best to let judges decide what the people are ‘allowed’ to decide via the democratic process.

Proud Rino on December 13, 2010 at 11:39 AM

Are you trying to be ironic, or are you expressing disagreement with the way that some justices (like Breyer) seem to see their role in “allowing” the populace to receive the freedoms granted to it via the Constitution and the Bill of Rights?

Good Lt on December 13, 2010 at 11:46 AM

So, people are allowed to keep flintlock muskets, but that’s it?

Proud Rino on December 13, 2010 at 11:41 AM

You and Breyer love to dance around on semantics, nuances and background historical footnotes, eh?
Apparently, 99.9% of the citizenry have no trouble understanding what “arms” mean except you.

Think the NRA should become the National Nuke & Armored Tank Association just to keep up?

Jenfidel on December 13, 2010 at 11:46 AM

The 2nd was created to allow the citizenry to protect themselves against criminal elements and against a rogue government, all of it enshrined in the natural rights of man. But in doing so a citizen cannot act in an indiscriminate manner against those who are NOT trying to harm them.

Well, if that’s the reason why the 2nd Amendment was created – by the way, where does it say that in the Constitution? I don’t see it – then I think I should be able to have weapons that are capable of fighting against a potentially rogue federal government, which means I should have access to all the weapons they have. Otherwise, the 2nd Amendment is just kind of a scam, isn’t it?

Nobody cares about your stupid question.

blink on December 13, 2010 at 11:44 AM

Of course not. Remember back when we all thought the 2nd Amendment was SO CLEAR and obvious? Now we’re at, “Nobody cares about your stupid question,” which is wonderful, except I’d think that if it were really that clear what the 2nd Amendment meant, I would have gotten a good answer by now.

Proud Rino on December 13, 2010 at 11:48 AM

Well, that’s your opinion buddy and you know what they say about opinions. Now, go back to your gardening or whatever it is you do these days.

rplat on December 13, 2010 at 11:37 AM

Unfortunately, what he does these days is rule on Supreme Court cases. Breyer’s not retired (maybe I misunderstood your comment though).

SoRight on December 13, 2010 at 11:49 AM

I will take a stab at it. Most people accept that firearms can reasonably be controlled when used. NBC are indiscriminate and have the capacity to injure/kill far outside the range of force needed to defend yourself. Are they correct in excluding it from protection under the 2nd Amendment some would argue yes some would argue no.

chemman on December 13, 2010 at 11:45 AM

Fair enough, but I don’t see anything like that written in the Second Amendment.

Proud Rino on December 13, 2010 at 11:49 AM

…from the article…
(snip)
“We’re acting as judges. If we’re going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns?” he asked.

Hmmm… I see what you did there, Breyer. Torpedoes? Really? Since Madison knew what cannons and catapults were, and didn’t use that specific language in the 2nd Amendment; I’m willing to bet that he meant “arms” as in “firearms”. We are, after all, discussing the intent, right?

But it’s that kind of ‘clear language’ that the Left often has such a problem with that they resort to straw man arguments when logic doesn’t win the day.

stevezilla on December 13, 2010 at 11:49 AM

I have 2 questions for people who “hate guns”? Why do you hate the fact that another person may own, have and use a gun? What are you really afraid of?

orbitalair on December 13, 2010 at 11:39 AM

The fear in people like Proud Rino is rooted in intense narcissism, the belief that the masses are far more ignorant that they are. They buy the stereotypes that these witless masses are just itching to use their weapons to harm intellectual giants such as themselves.

In other words, it’s their own bigotry that makes them fear the notion of their countrymen being armed. They’re such self-absorbed and self-obsessed loons that they imagine themselves to be targets for the unwashed, dirty, and stupid throngs of peasants.

MadisonConservative on December 13, 2010 at 11:50 AM

So Paul Begala – Gun Nut?
Dr Evil on December 13, 2010 at 11:18 AM

Oh man…as a gun nut I have to group myself with Paul Begala? Ouch.

Bishop on December 13, 2010 at 11:27 AM

He really is Dr. Evil!

tom on December 13, 2010 at 11:50 AM

Do you support Heller and McDonald?

crr6 on December 13, 2010 at 11:45 AM

Do you support Roe and Kelo? What about the gay marriage decisions by judges, and the decision against AZ’s border security law?

ladyingray on December 13, 2010 at 11:50 AM

I’m still waiting on an answer to my question.

Proud Rino on December 13, 2010 at 11:36 AM

From Heller: Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

I find it difficult to see how one takes into ones hands a nuclear weapon. I also think you are confusing arms with munitions as Heller further states “The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”

Ash on December 13, 2010 at 11:50 AM

The British were THE most powerful nation in the world at that time.

Jenfidel on December 13, 2010 at 11:42 AM

Yeah, and their army was busy empire-building all over the world, their homeland was thousands of miles away, communication between the HQ and the commanders in the field took months, and their government was filled with complete idiots.

They were mighty…but their might mostly amounted to numbers. No air support, no night-vision, single-shot weapons.

Dark-Star on December 13, 2010 at 11:51 AM

Whatever reason you think Mr. Madison wrote the 2nd amendment, he did write it and it stands in the Constitution. A lot of good it did us as we have grown a mighty and powerful federal govt anyway.

Kissmygrits on December 13, 2010 at 11:51 AM

Unfortunately, what he does these days is rule on Supreme Court cases. Breyer’s not retired (maybe I misunderstood your comment though).

SoRight on December 13, 2010 at 11:49 AM

Yes, you’re absolutely correct and my comment was unclear and misleading.

Thanks.

rplat on December 13, 2010 at 11:51 AM

So, people are allowed to keep flintlock muskets, but that’s it?

Proud Rino on December 13, 2010 at 11:41 AM

Citizens are allowed to keep any kind of arm, including machine guns. They may be prevented from some form or armanments, but not under the second amendment. You want to buy an RPG? It would be either stolen property of the army, or illegally imported goods, thus prosecutable under other federal laws. You want chemical weapons or a nuke? Go ahead, but you will fall foul of the Geneva convention and other resolutions that the US is signatory of.

Vashta.Nerada on December 13, 2010 at 11:51 AM

Do you support Roe and Kelo? What about the gay marriage decisions by judges, and the decision against AZ’s border security law?

ladyingray on December 13, 2010 at 11:50 AM

Yeah, no, yeah, yeah.

crr6 on December 13, 2010 at 11:52 AM

So, people are allowed to keep flintlock muskets, but that’s it?
Proud Rino on December 13, 2010 at 11:41 AM

Revolutionary War-era soldiers also carried tomahawks, halberds, swords, daggers, pistols, pikes, bows, and axes.

The federal government should take a hand in banning all of these things, as well as rocks or sticks that desperate soldiers might have grabbed as they engaged in hand to hand combat.

Bishop on December 13, 2010 at 11:52 AM

Orbitalair, if you REALLY believe that (I suspect you don’t and you’re only pretending to be a total loon), I invite you to try and secure your own personal stocks of such weapons.

Your ‘right’ to keep them might be recognized all of sixty seconds…until the federal agents who’ve stormed your house can stop laughing.

Dark-Star on December 13, 2010 at 11:45 AM

Shocker that an anti-gun elitist like yourself would goad someone into breaking the law.

Here’s the hint: just because something is the law, doesn’t mean that law is constitutional. With the size and inefficiency of the current legislative process, unconstitutional law passes muster on a regular basis.

MadisonConservative on December 13, 2010 at 11:52 AM

if it were really that clear what the 2nd Amendment meant, I would have gotten a good answer by now.

Proud Rino on December 13, 2010 at 11:48 AM

Tell ya what…Buy a nuke: I hear Russia’s selling or if not them, try A.Q. Kahn in Pakistan.
Bring it here.
Wait for the radiation it emits to give your location away.
When you go to jail, take your case to SCOTUS and tell them you were only exercising your 2nd Amendment Rights!
I’m sure you’ll win.
I’m making popcorn now.

ROFL! (This is cracking me up!)

Jenfidel on December 13, 2010 at 11:52 AM

I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.

Breyer has violated his oath of office, picking and choosing which parts of the Constitution are “valid” or no based on his own personal opinion, and should be removed posthaste.

Rebar on December 13, 2010 at 11:53 AM

if it were really that clear what the 2nd Amendment meant, I would have gotten a good answer by now.

Proud Rino on December 13, 2010 at 11:48 AM

Tell ya what…Buy a nuclear weapon: I hear Russia’s selling or if not them, try A.Q. Kahn in Pakistan.
Bring it here.
Wait for the radiation it emits to give your location away.
When you go to jail, take your case to SCOTUS and tell them you were only exercising your 2nd Amendment Rights!
I’m sure you’ll win.
I’m making popcorn now.

ROFL! (This is cracking me up!)

Jenfidel on December 13, 2010 at 11:53 AM

WELL WELL WELL
Another over educated nin-com-POOP-head.
You can make the same claim about all the ammendments.
The first was written to appease the people.
I could go on but short n sweet!
STFU .

ColdWarrior57 on December 13, 2010 at 11:53 AM

Yeah, and their army was busy empire-building all over the world…and their government was filled with complete idiots.

Dark-Star on December 13, 2010 at 11:51 AM

Oh, yeah. Completely different from what we have now.

MadisonConservative on December 13, 2010 at 11:54 AM

Citizens are allowed to keep any kind of arm, including machine guns. They may be prevented from some form or armanments, but not under the second amendment. You want to buy an RPG? It would be either stolen property of the army, or illegally imported goods, thus prosecutable under other federal laws. You want chemical weapons or a nuke? Go ahead, but you will fall foul of the Geneva convention and other resolutions that the US is signatory of.

Vashta.Nerada on December 13, 2010 at 11:51 AM

Read the Second Amendment sometime, it actually says the right to keep and bear arms shall not be infringed. Ergo, making federal laws that prevent me from purchasing a tank or whatever are in direct violation of the Second Amendment and are unconstitutional.

Proud Rino on December 13, 2010 at 11:54 AM

Yeah, no, yeah, yeah.

crr6 on December 13, 2010 at 11:52 AM

So you like judges making decisions instead of elected representatives? Then shut up about this. SCOTUS decided it, just as they decided Roe. If you still think Breyer’s comments are relevant, show me where the right to privacy is mentioned in the US Constitution.

ladyingray on December 13, 2010 at 11:54 AM

If the British had the gear in the 1700′s that we did today, we’d all be drinking tea and singing “God Save the Queen”.

Dark-Star on December 13, 2010 at 11:34 AM

Yeah, because Vietnam proved that you can’t lose a war if you have the best gear, right? You could also ask the Russians how that theory worked out. Or the French in Algeria.

England DID have better technology. And they lost the Revolution for the same reasons the Russians lost the Cold War. They couldn’t maintain the finances and the willpower to continue fighting.

You think the average American could afford an 86-gun man-of-war? Or a cannon with a dozen rounds of grapeshot? Or a cavalry horse and saber?

Washington’s forces often were without even shoes and bread. Ammunition was scarce. We didn’t win the revolution because we had more toys. We won because we had an idea worth fighting for.

hawksruleva on December 13, 2010 at 11:54 AM

Breyer has violated his oath of office, picking and choosing which parts of the Constitution are “valid” or no based on his own personal opinion, and should be removed posthaste.

Rebar on December 13, 2010 at 11:53 AM

Nay, forthwith!

crr6 on December 13, 2010 at 11:54 AM

Shocker that an anti-gun elitist like yourself would goad someone into breaking the law.

MadisonConservative on December 13, 2010 at 11:52 AM

Take your strawman and go back to Redneckistan.

If challenging the most idiotic gun-nut logic ever – that private citizens should be able to keep NBC weaponry – equals ‘elitism’ to you, you are truly a classless hick.

Dark-Star on December 13, 2010 at 11:54 AM

Yo Darkstar,

I have them. The Feds and State let me pay taxes on them.
Please, I am trying to get you to THINK for once in your life.

You might have even driven yourself to work in one of the deadliest devices we have ever created, a car.

Just because a device exists, its not the answer to ban, and control them. Weapons are everywhere, can be anything.
The will to kill, thats inside your own head. Morals to do right and good, thats what keeps society going.

What you need is to stop crushing people with laws, stigmas, and stupidity, like the Left is doing.

orbitalair on December 13, 2010 at 11:55 AM

Breyer is not ignorant. He is disingenuous, he is agenda driven, and he is and has been a scourge on these United States.

Anything more to be said would include profanity. Ergo, my litany of blue, profane, and derogatory language expressing truly felt emotions are withheld for the protection of our children and the tender of ear.

Woody

“Knowing the past, I’ll not surrender any arms and march less prepared into the future.”

woodcdi on December 13, 2010 at 11:55 AM

They were mighty…but their might mostly amounted to numbers. No air support, no night-vision, single-shot weapons.

Dark-Star on December 13, 2010 at 11:51 AM

Don’t kid yourself by trying to impose modern standards on an 18th Century conflict, thereby minimizing what a feat it was that we won.
The British threw everything they had at the Colonies.
We were their most prosperous holding and they weren’t about to let us go.

Jenfidel on December 13, 2010 at 11:56 AM

Ergo, making federal laws that prevent me from purchasing a tank or whatever are in direct violation of the Second Amendment and are unconstitutional.

Proud Rino on December 13, 2010 at 11:54 AM

You are absolutely right. If you want to spend your money on an F-15, feel free. I don’t think the line for buying them will be very long, especially these days.

hawksruleva on December 13, 2010 at 11:56 AM

So you like judges making decisions instead of elected representatives?

In cases where minority rights are implicated, yes. In other cases, generally no.

But I don’t see how any of that is relevant to GoodLT’s hypocrisy.

crr6 on December 13, 2010 at 11:56 AM

Do you support Heller and McDonald?

crr6 on December 13, 2010 at 11:45 AM

If by Heller, you mean that the SCOTUS affirming the right to keep and bear arms in a federal enclave vs. in the states, then yes. I support that.

MacDonald incorporated the Heller decision to the states through the DPC of the 14th Amendment.

So you suddenly have a problem with applying clearly-stated constitutional law to the states through constitutional amendments?

Do you feel that way about, say, incorporating ObamaCare into enforceable law using the CC as the constitutional mechanism through which it’s applied?

Square the circle. I know you’re in favor of ObamaCare. Apply your reasoning, and explain why you take a different tack when the same sort of maneuvering is applied to gun rights granted rather explicitly in the 2nd amendment.

Good Lt on December 13, 2010 at 11:56 AM

Oh, yeah. Completely different from what we have now.

MadisonConservative on December 13, 2010 at 11:54 AM

You’ve actually made a valid point. One of the few things that could keep our armed forces from squashing a rev0lutionary force like a bug…would be if they weren’t here to begin with. Our military is darn good, but they can’t violate the laws of physics and be in two places at once.

All the more reason to end the permawars in Iraq and A$$crackistan, IMHO.

Dark-Star on December 13, 2010 at 11:57 AM

Proud Rino on December 13, 2010 at 11:49 AM

Of course it doesn’t. Which is why your question reached the level of straw-man.

chemman on December 13, 2010 at 11:57 AM

making federal laws that prevent me from purchasing a tank or whatever are in direct violation of the Second Amendment and are unconstitutional.

Proud Rino on December 13, 2010 at 11:54 AM

A tank isn’t an “arm.”
You’re just being obtuse and silly.

Jenfidel on December 13, 2010 at 11:58 AM

That textualist Scalia fanboys are annoying. If you go to law school you’ll run into hordes of them.

crr6 on December 13, 2010 at 11:06 AM

So are liberal Breyer apologist fanboys, though I’m hardly surprised, since your views on the ICC basically mirror his.

Good Solid B-Plus on December 13, 2010 at 11:58 AM

So, people are allowed to keep flintlock muskets, but that’s it?

Proud Rino on December 13, 2010 at 11:41 AM

Or any the modern variant that serves the same purpose, allowing for the technological advances of bullet jackets, refiling and reload mechanisms. At the time, “arms” were hand-held melee and projectile weaponry that were appropriate for single combat, so cannons, machine-guns, grenades, and WMDs don’t really qualify, and it’s debatable if full auto disqualifies assault rifles and SMGs.
Don’t forget that they had pistols at the time, too.

Count to 10 on December 13, 2010 at 11:59 AM

From Heller: Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

I find it difficult to see how one takes into ones hands a nuclear weapon.

Reading fail.

or useth in wrath to cast at or strike another.

I also think you are confusing arms with munitions as Heller further states “The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”

Ash on December 13, 2010 at 11:50 AM

It’s not to be used in a military capacity? Interesting, doesn’t the first part of the Second Amendment say, “A well regulated Militia, being necessary to the security of a free State“?

And yet, it’s only for weapons NOT to be employed in a military capacity?

Proud Rino on December 13, 2010 at 11:59 AM

Our military is darn good, but they can’t violate the laws of physics and be in two places at once.

All the more reason to end the permawars in Iraq and A$$crackistan, IMHO.

Dark-Star on December 13, 2010 at 11:57 AM

Uh, we have language in our founding documents about having a standing army on home soil, too and “quartering troops.”
It is not permitted.
It’s a little thing called “posse comitatus” and it matters not whether or not our military is committed to an overseas conflict.

Jenfidel on December 13, 2010 at 12:01 PM

Read the Second Amendment sometime, it actually says the right to keep and bear arms shall not be infringed. Ergo, making federal laws that prevent me from purchasing a tank or whatever are in direct violation of the Second Amendment and are unconstitutional.

Proud Rino on December 13, 2010 at 11:54 AM

I know it by heart, thanks. Go ahead and file suit if you are so inclined. Note that the laws and regulations were specifically written to get around the second amendment right of citizens to keep and bear arms.
The laws use fees and licensing as a method of restricting access to certain arms without denying the right to own them. I know a guy who has two tanks in his backyard.

Vashta.Nerada on December 13, 2010 at 12:01 PM

If by Heller, you mean that the SCOTUS affirming the right to keep and bear arms in a federal enclave vs. in the states, then yes. I support that.

MacDonald incorporated the Heller decision to the states through the DPC of the 14th Amendment.

So you suddenly have a problem with applying clearly-stated constitutional law to the states through constitutional amendments?

No. I have a problem with you saying you’re all for respecting the wishes of democratically elected legislatures, and against impositions by “judicial fiat” except when those fiats invalidate gun control laws.

Do you feel that way about, say, incorporating ObamaCare into enforceable law using the CC as the constitutional mechanism through which it’s applied?

huh? The CC doesn’t limit the federal government’s power, it’s a source of the federal government’s power. And the mandate doesn’t invalidate state laws, it simply acts on individuals.

Square the circle. I know you’re in favor of ObamaCare. Apply your reasoning, and explain why you take a different tack when the same sort of maneuvering is applied to gun rights granted rather explicitly in the 2nd amendment.

Good Lt on December 13, 2010 at 11:56 AM

I honestly don’t see how the situations are analogous, You’ll need to explain it better.

crr6 on December 13, 2010 at 12:01 PM

Take your strawman and go back to Redneckistan.

Not a strawman, and it’s exactly what you said. And if you want to continue to parrot toddler-level slurs, I live in Madison, Wisconsin. Kind of the opposite of “Redneckistan”, you gormless cretin.

If challenging the most idiotic gun-nut logic ever – that private citizens should be able to keep NBC weaponry – equals ‘elitism’ to you, you are truly a classless hick.

Dark-Star on December 13, 2010 at 11:54 AM

And you truly are a myopic twit to consider that a militia should not have access to weaponry that would be used by potential enemies. Otherwise, what is the point of a militia?

MadisonConservative on December 13, 2010 at 12:02 PM

So are liberal Breyer apologist fanboys

Good Solid B-Plus on December 13, 2010 at 11:58 AM

There’s no such thing. Because purposivism isn’t like, totally dreamy and simple like textualism.

crr6 on December 13, 2010 at 12:02 PM

You won’t get anywhere near that level of safety in a personal vehicle, or even a bus-sized one.

Dark-Star on December 13, 2010 at 11:39 AM

PM-3A powered more than a bus, true, but just one example showing that small nuclear reactors can be operated safely without dozens of staff on hand 24/7.

DarkCurrent on December 13, 2010 at 12:02 PM

that private citizens should be able to keep NBC weaponry – equals ‘elitism’ to you, you are truly a classless hick.

Dark-Star on December 13, 2010 at 11:54 AM

Why are you afraid of private citizens keeping at least the BC portion of NBC?

chemman on December 13, 2010 at 12:03 PM

All the more reason to end the permawars in Iraq and A$$crackistan, IMHO.

Dark-Star on December 13, 2010 at 11:57 AM

Wow.

You want to end the wars because you want troops at home able to suppress the populace and neutralize the power of the Second Amendment.

Eat s**t, motherf**ker.

MadisonConservative on December 13, 2010 at 12:03 PM

A tank isn’t an “arm.”
You’re just being obtuse and silly.

Jenfidel on December 13, 2010 at 11:58 AM

Who says? Is there a definition for ‘arm’ in the Constitution that I’m missing? I mean, it’s supposed to be clear and I keep getting all these different, shifting responses from you guys.

Proud Rino on December 13, 2010 at 12:03 PM

If you go to law school you’ll run into hordes of them.

crr6 on December 13, 2010 at 11:06 AM

Must be a bummer for the profs. All those corrupted minds to lecture to in vain.

Limerick on December 13, 2010 at 12:04 PM

In cases where minority rights are implicated, yes. In other cases, generally no.

But I don’t see how any of that is relevant to GoodLT’s hypocrisy.

crr6 on December 13, 2010 at 11:56 AM

So if gun owners truly were a small minority, you’d be a big fan of Heller and McDonald?

Good Solid B-Plus on December 13, 2010 at 12:04 PM

The British threw everything they had at the Colonies.
We were their most prosperous holding and they weren’t about to let us go.

Jenfidel on December 13, 2010 at 11:56 AM

Actually, that may not be quite true. India and the West Indies were generating huge sums of money. Both England and France was eyeing the Carribean as the big prize during the 1770s and ’80s. In fact, DeGrasse could only stay at Yorktown briefly, he had commitments with the Spanish in the Caribbean.

The English lost in large part because they were stretched thin, financially and emotionally. We were an investment with a huge upside, but weren’t really the money-maker that they had hoped. And they were spending huge sums fighting other wars around the world. And the American ideas were compelling for people everywhere, meaning a sizeable number of English citizens were somewhat supportive of us.

hawksruleva on December 13, 2010 at 12:04 PM

then I think I should be able to have weapons that are capable of fighting against a potentially rogue federal government, which means I should have access to all the weapons they have. Otherwise, the 2nd Amendment is just kind of a scam, isn’t it?

Is it? If the feds were armed with nothing but sharp sticks would you feel that having a bow would be unfair escalation beyond the scope and intent of the 2nd amendment?

I know you are trying awfully hard to create a loophole into which any semantic truck can be driven, but the Founders weren’t going to put together a million-word amendment to satisfy those such as yourselves. You could just as well deconstruct any parts of the Constitution or the BOR to the same degree, but YOU won’t.

The best argument was presented by another commenter, the ability to discriminate between the innocent and the criminal, to keep from harming an innocent’s right to life and liberty while protecting yourself.

Bishop on December 13, 2010 at 12:04 PM

Read the Second Amendment sometime, it actually says the right to keep and bear arms shall not be infringed. Ergo, making federal laws that prevent me from purchasing a tank or whatever are in direct violation of the Second Amendment and are unconstitutional.

Proud Rino on December 13, 2010 at 11:54 AM

Arms ~= combat vehicles

Count to 10 on December 13, 2010 at 12:05 PM

crr6 on December 13, 2010 at 11:56 AM

How does Roe protect minority rights? How does the AZ law restrict minority rights for legal citizens and legal immigrants?

ladyingray on December 13, 2010 at 12:06 PM

Madison wrote 2nd Amendment to appease the states

Good for the states then. Wow, 230 years ago they were able to foresee the power hungry b@$tard$ in D.C. and the leftist dupes in the rest of the country, and prepare against them.

The soft liberals in Cape Cod probably wouldn’t fight back against the Bolsheviks burning their houses down, in the name of Class Warfare….. But be assured that when you Bolshys come to burn down houses in ‘flyover country’ you won’t find it a very healthy thing to do.

LegendHasIt on December 13, 2010 at 12:06 PM

Textualism solves most of these “what if” questions, Rhino.

Whew!

Arms

In Colonial times “arms” usually meant weapons that could be carried. This included knives, swords, rifles and pistols. Dictionaries of the time had a separate definition for “ordinance” (as it was spelled then) meaning cannon. Any hand held, non-ordnance type weapons, are theoretically constitutionally protected. Obviously nuclear weapons, tanks, rockets, fighter planes, and submarines are not.

warden on December 13, 2010 at 11:59 AM

Where is that in the Constitution? Nowhere? OK. I find it pretty amusing that the argument is now, apparently, that people are to keep and bear arms to defend themselves against tyranny, and the government gets to have all the good weapons and you get to have a handgun. Good luck fighting that fight. Also kind of incredible when you consider that the Second Amendment actually specifically refers to a well-regulated Militia and says NOTHING about a citizen’s self-defense. Remarkable all the new and interesting stuff we’re now reading into the Constitution.

Proud Rino on December 13, 2010 at 12:06 PM

Who says? Is there a definition for ‘arm’ in the Constitution that I’m missing? I mean, it’s supposed to be clear and I keep getting all these different, shifting responses from you guys.

Proud Rino on December 13, 2010 at 12:03 PM

I’d say a tank is an arm. I’d also say that it’s ok to own a tank, as long as you don’t kill anyone with it.

After all, cars and private aircraft can kill people more easily than a gun, and yet we can own them.

hawksruleva on December 13, 2010 at 12:07 PM

I’m still waiting on an answer to my question.

Proud Rino on December 13, 2010 at 11:36 AM

What question? You’re just engaging in the usual pseudo-clever sophistry: If people can’t own a nuclear device, then they don’t have a Second Amendment right to ANY sort of weapon. That’s like saying that since I can’t have access to any and every federal document I can’t have access to ANY books or periodicals.

ddrintn on December 13, 2010 at 12:07 PM

Justice Breyer wants history to be to his interpretation. As I recall when I went to college back in the dark ages, the various states wouldn’t accept the new Constitution unless there was a Bill of Rights attached. So, the first ten amendments were added, not just the Second.

Liberals seem to pick and choose their facts in order to support their argument. They certainly don’t want actual historic fact to get in their way.

Special Forces Grunt on December 13, 2010 at 12:07 PM

Arms ~= combat vehicles

Count to 10 on December 13, 2010 at 12:05 PM

Not exactly true. Any vehicle which includes weapons as part of its design is technically considered a weapon, and therefore would be an “arm”. Now, if you were to remove the weapon from the vehicle, such as a .30 automatic machine gun from a turret on a hummer, it could be reclassified as a regular vehicle. Can’t really do that with a tank, though.

MadisonConservative on December 13, 2010 at 12:08 PM

the ability to discriminate between the innocent and the criminal, to keep from harming an innocent’s right to life and liberty while protecting yourself.

Bishop on December 13, 2010 at 12:04 PM

The right to reason is not in the Constitution. Just ask any college professor.

Limerick on December 13, 2010 at 12:08 PM

I find it pretty amusing that the argument is now, apparently, that people are to keep and bear arms to defend themselves against tyranny

Proud Rino on December 13, 2010 at 12:06 PM

Where in the amendment is the word “tyranny” ever mentioned?

ddrintn on December 13, 2010 at 12:08 PM

So if gun owners truly were a small minority, you’d be a big fan of Heller and McDonald?

Good Solid B-Plus on December 13, 2010 at 12:04 PM

In this context, minority=groups which are unable to adequately protect their interests through traditional democratic processes. There was a colorable argument that could have been made 100 years or so ago that the 2nd amendment protected minority rights by preventing whites from disarming and terrorizing blacks. I don’t think that’s a particularly compelling argument anymore. But if it were, yes I’d be a BIG fan of Heller and McDonald.

crr6 on December 13, 2010 at 12:08 PM

In cases where minority rights are implicated, yes. In other cases, generally no.

But I don’t see how any of that is relevant to GoodLT’s hypocrisy.

crr6 on December 13, 2010 at 11:56 AM

Nice revelation of your own hypocrisy…

OT: VA Federal judge declares 1501 is unconstitutional.

ladyingray on December 13, 2010 at 12:08 PM

Madison, quoted from the Congressional Record, 8 June, 1789…

It may be said, indeed it has been said, that a bill of rights is not necessary, because the establishment of this Government has not repealed those declarations of rights which are added to the several State constitutions; that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

That certainly doesn’t sound like someone who didn’t want the Bill of Rights, and a bill of rights lacking protection for the one right that can protect all the other rights is ludicrous.

Woody

woodcdi on December 13, 2010 at 12:09 PM

hawksruleva on December 13, 2010 at 12:04 PM

Hmmm.
What you say conflicts with the history I’ve read and heard.
We both need to do more research, but I’m fairly sure that we were indeed their most profitable colony and I know for a fact that they sent the largest armada in the history of the world to NY harbor to frighten Washington and the Continental Army.

Jenfidel on December 13, 2010 at 12:09 PM

You can buy a tank if you want, go online and you will find them for sale. The best place to get one is Russia or the old old USSR satellites, they have old tanks coming out of their ears; good luck with shipping though.

Bishop on December 13, 2010 at 12:10 PM

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