Wednesday, December 15, 2010


"If that was his motive historically, the dissenters were right."

According to Justice Breyer, the founding fathers would have supported restrictions on gun ownership. He suggests that Madison only helped craft the 2nd amendment protecting the ownership to mollify states worried about the federal government taking their militias away. Fox News reports that in an interview, Justice Breyer stated
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."
He went on to state that the founding fathers couldn't have envisioned how weapons were going to turn out and would want them restricted heavily today. In fact, his version of events is utterly without historical basis, and Madison made his position on the topic utterly plain repeatedly and without any hint of these concerns. Here's a few quotes from the actual man rather than speculation by a leftist judge:
A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country.

The Constitution preserves "the advantage of being armed which Americans possess over the people of almost every other nation. . . (where) the governments are afraid to trust the people with arms."

"To these (federal troops attempting to impose tyranny) would be opposed a militia amounting to near half a million of citizens with arms in their hands."
However, in a sense, I believe Justice Breyer is right, but only in a sense. The founding fathers actually passed laws limiting the ownership of some weapons. Only the military could have cannons and warships, for instance. There has always been a distinction between self defense or hunting weapons and military heavy weaponry. In America, you can't own an atomic bomb, but you can have a high-powered rifle.

The principle of limiting liberty is not new to America nor a principle which the founding fathers utterly rejected. They recognized that some speech had to be limited in order to have any sort of coherent society, and that without giving up some non essential expression of some rights, no one would have any rights. Before you start typing your comment, let me explain.

Everyone has the right to liberty. However, we put some people in jail. This restricts the free expression of their right to liberty, and as a society we all agree that happens to people who so abuse their liberty that for our good and their punishment they must be restricted.

Or, consider speech. You have the right to freedom of speech, but that right cannot be freely expressed to deliberately cause monetary or reputational harm to anyone. Slander and libel are both illegal because they cause more harm to society than restricting speech does.

All liberties face some restriction, for without any restrictions at all, none would have liberty at all, either. Oppression by those who were strongest and least limited by honor and virtue would result in less liberty for all the rest. If anyone can do anything, the only the worst and strongest will be free. So we all give up just a little bit to enjoy a great deal more: this is the essence of the "social contract."

So in that sense, Breyer is correct; the founding fathers saw some limits on ownership of weapons. But he takes it too far and in the wrong directions. For instance, he envisions the bill of rights differently than the founding fathers did, arguing that a Washington DC ban on all handguns is perfectly constitutional. Why?
"Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun."
Again, in a sense I agree. This is the basic principle of modern federalism, where individual states are free to pass laws and allow things that others do not. If you want to have socialized medicine in your state, then you're free to do so, even if its a really bad idea. If you want gay "marriage" in your state and can get the majority of fellow voters to agree, then you can, while other states can deny it.

The problem here is that Justice Breyer is taking a US Constitutional law - the 2nd amendment - and acting as if its optional. The US Constitution is not optional to the states, all states must obey the law of the land in every state, regardless of their whims and the votes of the people living there. This isn't negotiable, every amendment of the constitution is nation wide. No matter how people vote or what the government of Ohio thinks is best for its citizens, they cannot ignore the 13th amendment and establish slavery there.

Justice Breyer's political and judicial philosophy demands that we interpret the constitution by modern events and ideals rather than the other way around. While it is true that the constitution was deliberately left flexible like a green tree to bend and shift to the changes in culture and technology the Founding Fathers could only have dreamed of, leftists take this a bit further by demanding it become like putty which can be reshaped into anything which fits the whims of the elite academia and cultural warriors on the left.

Liberty has to be restricted to have order and civilization, but only in the least manner possible and with the greatest caution. Justice Breyer would have states able to defy the constitution and limit our rights for the latest political wind from the left, but the founding fathers would have utterly and categorically disagreed.

*This originally ran on the Washington Examiner Opinion Zone in a more limited form. This comment by Eve101 also ran there:
Even if Breyer is correct about Madison's intent (and there is ample evidence, including Madison's own writings, that he's not), Breyer is still wrong as a matter of law on how that affects the meaning of the 2nd Amendment. It is accepted law that the intent of one or a group of legislators is not relevant to the interpretation of constitutional amendments. What congress thought in passing it, and what the People thought in ratifying it, count for more.

That's precisely why the court still does not recognize the intended meaning of the Privileges or Immunities clause of the 14th Amendment, even though its author (in the same role as Madison in relation to the 2nd) not only explicitly stated his intent on the floor of congress, but in public as well. Also, it was very openly and often stated that one of the individual rights to be protected that most by the 14th Amendment was an individual right to keep and bear arms, which was also explicitly described as including the right to carry guns in public for self defense.

So, if we are to take Breyer at his word about the intent of the author, then we would expect that he and the other Heller (and McDonald) dissenters would change their votes to side with the majority based on the intended meaning of the 14th Amendment, which would supersede whatever Madison intended with the 2nd Amendment anyway. So, if Breyer wants to overturn court doctrine and start relying on the intent of the author, the court better hurry up and start striking down every single state gun control law, all of which are blatantly in violation of the intent of the author of the 14th Amendment.

1 comment:

Alex VanderWoude said...

Excellent article! I particularly like your comparison of the green tree that is flexible (but not infinitely) with the putty that is infinitely malleable to fit the fashions of the time.