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.