December 13, 2010

Justice Stephen Breyer on "Fox News Sunday."

Watch here. Chris Wallace does a great job of needling him about things Breyer's written about constitutional interpretation and, Breyer, as I'd expect, rises to the occasion. Breyer literally waves the Constitution around, in tiny booklet form, and figuratively waves around a bigger book, his book "Making Our Democracy Work."

Now, let's rummage through the transcript. Chris Wallace questions him about "just applying the law as written," and Breyer plugs in the expected elementary lesson about the concision of the phrases in the Constitution and the need to apply them in the changed circumstances of the modern world (airplanes! the internet!), and then Wallace displays the text of the 2d Amendment:
WALLACE: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms" -- the right of the people to keep and bear arms -- "shall not be infringed." Now, Justice, I understand why, as a matter of policy, in a world with a lot of urban violence and big cities, that some people would say we need gun control, particularly in a big city like Washington, as they have here, and in Chicago. You ruled in both of those cases. And in both cases the court voted twice over your dissent that the founders meant what they said, people have a right to bear arms.
Breyer, of course, is ready for this:
BREYER: Yes. Yes. That's a wonderful example because, of course, it's not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."  What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, "I've got to get this document ratified," was worried about opponents who would think Congress would call up state militias and nationalize them. "That can't happen," said Madison. And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right.
There's some talk about judges acting like judges and how history can't answer some of the details. How do the old words and the old intent apply to new things? Breyer lists machine guns and torpedoes, and then, deviously, handguns. Wallace responds:
WALLACE: I understand. But it certainly didn't provide for a ban, at least that's what the court's decision was, your court's -- it didn't provide for a ban on all handguns as they have here in Washington, D.C.

BREYER: 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...

WALLACE: But -- but it's...

BREYER: ... a gun.

WALLACE: ... but that's a policy issue. That's not a constitutional issue.
Breyer chooses not to jump on this point, perhaps because he'd have to say things that conservatives say. He'd have to promote federalism. Let me sketch it out.

If there isn't a right covering this particular subject, then state and local government will be able to legislate the policies that they, as a community, think are best. Yes, it's a policy issue, and — Breyer would say, if he'd gone on — that's why it's appropriate for legislative bodies to make decisions about it. If you don't like those decisions, the great thing about the United States is that you can move around and go to places that have policy preferences that suit your tastes. You have a right to travel and a right to change your residence to another state. And you also have the right to participate in politics, so there's also the alternative of trying to get the law in your state or city changed, so that handguns are not banned. Breyer's approach to the Second Amendment lets the people make the gun control laws what they want them to be and, when they do, they won't get caught up in litigation over the choices they make.

This is what conservatives say all the time about abortion and the separation of church and state (to cite the 2 most glaring examples). But here's Right Wing News — Chris Wysocki — excoriating Breyer for saying "get on the subway and go to Maryland."
Mind-boggling really, isn't it? Gee little black girl, do you want to go to the same school as white girls? Well, get on the subway and go to Maryland!
Well, no. There is a federal constitutional right covering that point, so you don't get the state-to-state variation. And that's the question: Is it a federal constitutional right or not? When you're arguing that there isn't a right, you're saying the law can vary from state to state. When is that intolerable and when isn't it? We all agree (now) to the uniform resolution of the school segregation problem that excluded decentralized decisionmaking. There is an Equal Protection right.

But there was, recently, a disagreement about the Second Amendment, and Breyer was on the side that thought there was no individual right. Put another way, Breyer's side of the Court thought that decentralized policymaking could govern. Do you think that's terrible? If you believe that there's a right, then, yes, of course, you do. But think of something else, where you think the Court is wrong about saying there's a right — perhaps, for you, abortion — and then, don't you remember all the times you made the argument that it wouldn't be so terrible because individual states could make their own decisions and people could move (or travel) to the states that gave them what they wanted?


Wysocki continues:
So mister, what if you are in a wheelchair? This doctor's office has stairs. If you want to see an accessible doctor, get on the subway and go to Maryland!
Whoa! You think the Constitution obliges private citizens, like doctors, to make their buildings wheelchair accessible?! That's so left-wing! Check your blog's name! What's the "Right Wing News" today, that righties have gone all lefty? That would be news!

***

(I have some more things to say about the Breyer interview, but I'll start a new post for that.)

CORRECTION: Sorry, I had "Chris Matthews" in the first sentence of this post. It's Chris Wallace.

129 comments:

AllenS said...

Don't you mean Chris Wallace?

Big Mike said...

Did he really say that the Founding Fathers would have supported gun control? Does he think that colonial-era Americans did not support self defense?

victoria said...

I have to say I think Breyer was successful in his Chis Wallace smackdown. Never saw a host so eviscerated with such class and assurance. I realize again how smart these people are, the judges I mean, not the hosts. You go Stephen!!!


Vicki from Pasadena

GMay said...

"Don't you mean Chris Wallace?"

That's what made me click through. The thought of Thriller working on eeeeevil FOX was too much for me to ignore.

mRed said...

Breyer came off as a self-absorbed and smarmy know-it-all. IMO.

Original Mike said...

I found Breyer unpersuasive in his argument that because the world has changed, we need to reinterpret the Founding Fathers. While I do accept that as a given, I think there is a whole lot more reinterpretation than is necessary. For example Breyer pointed out, regarding freedom of speech, that there was no television or internet at the time of the writing of the Constitution. My question is, so what? That doesn't change the principle as far as I'm concerned.

traditionalguy said...

Breyer seems to be Victoria's favorite Philosopher King. That is one great gig if you can get it. You get to argue anything without fear of being shown as inconsistent, and you get to blithely cite what ever theory sounds like it agrees with your goals for structuring American life. Plato was right. It's really all about the most elegant shadows put on a wall by a puppeteer.

Peano said...

"Breyer came off as a self-absorbed and smarmy know-it-all."

I've never seen him come off otherwise.

EDH said...

I thought Breyer came across as evasive and nonresponsive, and not just on the subject of particular rulings.

Pastafarian said...

Wow. What an idiot.

Here's his defense of pretending that the second amendment doesn't mean what it says (paraphrasing):

'You live in DC? You like to shoot handguns at targets? Get on the subway and go to Maryland. There is no problem.'

Sweet merciful Jesus. If this is indicative of the depth of thought and knowledge of history of these robed demigods that sit in ultimate judgment over the most fundamental issues of the day...We're in some deep shit.

Original Mike said...

@Pastafarian: Yeah, that was pretty bad. The best light you can put on that is, hopefully, he was just trying to be a smart ass.

Ralph L said...

Remember, he's a "moderate."

Fen said...

Breyer: You live in DC? You like to shoot handguns at targets? Get on the subway and go to Maryland. There is no problem.

Hey dumbass, the 2nd is about self-defense, not sporting or hunting.

Fen said...

You like to express your political beliefs? Get on the subway and go to Virginia. There is no problem.

c3 said...

I couldn't watch the whole thing. I liked it better when SCOTUS justices kept quiet. I don't like them writing books while they're still sitting on the bench.

Fen said...

Hey Breyer, do I hop on the red line or the blue line to exercise my religion?

GMay said...

Breyer: "If we're going to decide everything on the basis of history..."

He really starts to go downhill fast after that remark at 3:57.

Breyer: "What is the scope of the right to keep and bear arms? Machineguns? Torpedoes? Handguns?"

Wallace: "[The Constitution] didn't provide for a ban on all handguns. Especially like the one they have on handguns like they one they have here in DC."

Breyer: "Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland."

He then proceeds to completely deflect, but in his deflection makes an important point which seems to undermine his already weak position.

Breyer: "How do those words [of the Constitution] apply? ... What a difficult question. And I tell you we can find the answer to this question, in large part, by looking at the values that Madison, Hamilton, and the other wrote in this document. And it's very hard to find the answer to this question by looking at the word."

Then he goes on to try and snark about Madison not knowing about the internet in the context of his comments on intent.

So if I have this straight, he thinks we should look to the values of the FFs. Yet small arms technology was not only widely available, but a part of the culture and value of American society of the day. So the actual wording of the Constitution aside (which also seems to clearly contradict Breyer's opinion), he seems rather self contradictory here.

As a result, we see him completely deflect Wallace's apt questioning with a well-intoned snark about teh intarwebs??

And these people are brilliant???

What else, other than book hawking, goes on in this clip because after that little display of crap by Breyer, I found it unwatchable.

HDHouse said...

actually the 2nd is about the defense of a free state as Breyer points out and the state's control of the militia. If you took a few minutes at looked at the drafts prior to the wording adopted you'd see the evolution of the amendment is as Breyer describes.

remember, his audience was Faux Noise - old, pigheaded, lied to constantly etc. - he had to use simple words or bam zip right over their heads.

GMay said...

Fen noted: "You like to express your political beliefs? Get on the subway and go to Virginia. There is no problem."

I thought the exact thing when he pulled that line. This guy obviously doesn't think things through.

As Pastafarian said: we're in deep shit if these guys are our deep thinkers.

traditionalguy said...

If Bryer were not on the SCOTUS, then he would be seen as the epitome of "weak and limp", and he knows that. He has a profound Uriah Heep in his character, not seen since Dickens. He would also fit in as one of the Judges in Bleak House.

Joe said...

(The Crypto Jew)
Breyer: You live in DC? You like to shoot handguns at targets? Get on the subway and go to Maryland. There is no problem.

Hey dumbass, the 2nd is about self-defense, not sporting or hunting.

Certainly not an original thought, but how about this, “Can’t get an abortion in Delaware, just take the AMTRAK to Maryland” or “Can’t Protest BusHitler in Utah, get on the highway and go to California.” Funny how SOME Constitutional Rights are sacrosanct and others, well others can be limited geographically and it’s OK.

Larry J said...

Breyer reinforces my notion that many (perhaps most) judges are little more than failed lawyers with political connections. His judicial philosophy is to cherry pick ideas from foreign law that fit his views and when that fails, to make up shit.

Joe said...

(The Crypto Jew)
actually the 2nd is about the defense of a free state as Breyer points out and the state's control of the militia. If you took a few minutes at looked at the drafts prior to the wording adopted you'd see the evolution of the amendment is as Breyer describes..
FREE State, not just a state, HD...and the “militia” was EVERY Able-bodied man…not simply the organized, State-Controlled militia…so no your “read” is not entirely accurate…it is an INDIVIDUAL right, conferred to protect FREE States from rapacious government(s)…it’s not simply a National Security amendment. And Lawrence Tribe agrees, and he’s no flaming wingnut…it IS an individual right.

Fen said...
This comment has been removed by the author.
Fen said...

HdHouse: the 2nd is about the defense of a free state as Breyer points out and the state's control of the militia.

Hey HD, explain how you defend yourself from the State using the State controlled militia?

"A well-educated Congress, being necessary to the security of a free state, the right of the People to keep and read books, shall not be infringed" does not limit books to Congress-critters or Libraries.

Scott M said...

Funny how SOME Constitutional Rights are sacrosanct and others, well others can be limited geographically and it’s OK.

If the federal government were to live by a guiding principle that we are a united republic of individual sovereign states (as originally intended) then each state having it's own laboratory with laws within it's borders would work. Unfortunately, we're not and it doesn't.

Beldar said...

Breyer and Wallace talked past, no to, each other, and Wallace was emphatically the more human and normal of the two. Breyer was simply awful -- a caricature of either a conservative's or a libertarian's worst nightmares about SCOTUS Justices, with a healthy dose of smarmy-smug law prof thrown in to boot. If he'd go on TV more often, he'd turn federal judicial nominations into an issue that would materially help the defeat of the Dems in 2012.

rastajenk said...

Can you carry a gun on a subway?

Beldar said...

Yikes, 'scuse the typo. "Past, not to, each other," I meant to say.

HDHouse said...

Fen said...
"Hey HD, explain how you defend yourself from the State using the State controlled militia?"

Well Fen, I don't think that the founding fathers, in constructing the constitution, ever, in their wildest dreams had you in mind.

GMay said...

HDHouse opined: "actually the 2nd is about the defense of a free state as Breyer points out and the state's control of the militia."

HDH, do you know what a militia is? Since it was Faux Snooze, that word should be small enough not to bang zip right over your head.

Do you know who supplies militia folks their weapons?

Hint: When the final document (not the "evolution" of the document) says the right of the people to keep and bear arms, then when you support a ban on handgun ownership, you're blatantly violating the people's constitutional rights.

Looks like the Constitution goes bang zip right over your tiny little pighead.

Joe said...

(The Crypto Jew)
Can you carry a gun on a subway?
Not easily answered…are “you” a felon? Does your state allow open or concealed carry? And why should it make any difference if it’s the subway, a street, or a bank? Can you speak freely on the subway?

HDHouse said...

@Beldar....thank the lord for impartial viewers.

i guess you are why trial lawyers make out so well when they get an "eye witness" on the stand.....was the a white man in a black shirt or the reverse?

GMay said...

HDH displayed some knowledge: "I don't think that the founding fathers, in constructing the constitution, ever, in their wildest dreams had you in mind."

Looks like someone doesn't know the Founding Fathers, or their history in general very well. At all.

Browndog said...

This is what happens when law students are taught that "precedent" trumps, replacing the text of the Constitution with conflicting interpretations of the Constitution. The tragedy is, these students become lawyers, then professors and judges, creating a closed circuit, insulated, and beyond reproach.

Ann Althouse said...

Refresh the post. I have a lot of new material about the Second Amendment.

I'm starting a new post about the part of the interview after the gun control stuff.

Maguro said...

What House is saying is that the Founders went to the trouble of writing the 2nd Amendment to make sure the Army was allowed to have guns.

Jay said...

BREYER: 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...


Um, huh?

Are handguns permitted on the DC Metro?

Why do residents of DC have to "go to Maryland" in order to shoot pistols?

The arrogance of leftists never ceases to amaze...

Jay said...

There is no problem.


Uh, yeah, there certainly is.

Rocco said...

Fen asked:
"Hey Breyer, do I hop on the red line or the blue line to exercise my religion?"

It depends. If you're a radical Islamist, take the Blue Line. If you're just about any other religion, take the Red Line.

Joe said...

(The Crypto Jew)

Well Althouse, on Abortion, a Federal “Right” versus the Second Amendment, there’s a little factual dispute…on Arms, we have an AMENDMENT discussing the right to keep and bear, whereas with abortion we have NO amendment or section, merely emanations and penumbras….I view Roe the same was as I view Dred Scott, bad interpretation.

Scott M said...

What House is saying is that the Founders went to the trouble of writing the 2nd Amendment to make sure the Army was allowed to have guns.

If that's true, then he is incorrect. The founders were highly skeptical of standing armies, but understood the reality of the professional armies of the era in Europe. They were unsure of how exactly to deal with that so they, in effect, punted. They figured it was better to have a well-equipped (see "regulated" and it's common contextual usages from that time) populace as simply one facet of insuring liberty.

The fact that we now have standing, professional armed forces doesn't change this a whip.

Joe said...

(The Crypto Jew)

Ah, Rastajenk, I see your point..."Can I carry my pistol on the subawy to Maryland?"

I believe the answer is "No." But in a certain theoretical sense you do have the right to keep and Bear, just like MLK had a certain theoretical right to serve on a jury in AL or to vote there...

Chip Ahoy said...

Where Fox demonstrates once again that no segment is complete without a clip of Obama.

You know what's great about my job emotionally? I sit in my chair. Every day. And I see people of every race, every religion, and EVERY point of view, and as my mother used to say, there is no point of view so odd that somebody doesn't hold it in this country, and all those people, 370 million, who have SO [doink] many points of view, who have so many [wave] different backgrounds, they come into their {back} court, into the courts to decide differences under law where differences in other countries might drive them into the streets and KILL each other. I tell you, it's a PRIVILEGE to sit right there and see that happen. So I'm used to seeing people thinking different things. It doesn't bother me, and part of me says, "good."

* sits back smugly*

Well BFD, Mr. Justice. In that sense he sees and hears the same thing seen and heard at pretty much any given MacDonald's. He does see and hear them, but he doesn't actually work with people hailing from other countries, and the educations of the people with whom he works are pretty much identical.

He seems a sanctimonious creep and I will not be buying his book for more of it. He's got his constitutional intentionalism, I've got mine.

Jay said...

Hey dumbass, the 2nd is about self-defense, not sporting or hunting.


I rather enjoy when these gun grabbing marxists are reduced to talking about "sportsmen"

Remember Kerry out duck hunting?

former law student said...

James Madison.... was worried about opponents who would think Congress would call up state militias and nationalize them. "That can't happen," said Madison. And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right.

Funny that the Second Amendment was not cited in Perpich v. Department of Defense, (Federal Government can summon National Guard for duty overseas without either consent of the state Governor or a national emergency) only the Militia Clauses.

Does Breyer think Perpich was wrongly decided? It was before he joined the court.

Jay said...

BREYER: 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...

How can you "get on the subway" with a pistol when handguns are banned?

former law student said...

The fact that we now have standing, professional armed forces doesn't change this a whip.

The Army is unconstitutional; the Navy, constitutional.

former law student said...

Jay -- you would store your pistol at the range they way they did in UK before all handguns were banned.

Maguro said...

That must be why Navy always kicks Army's ass in football.

Scott M said...

FLS

That's why I said it doesn't change it a whip.

Paul Zrimsek said...

Justice Breyer picks up his new Volvo:

Breyer: Hey! Where are the floormats?

Honest Al, of Honest Al's Yankee Volvo: What floormats?

Breyer: The floormats that are supposed to come with the car! See, it says right here in the sales agreement that I get floormats.

Honest Al: But I'm the one who wrote up that agreement, and I never intended to throw in floormats. I only put in the part about the floormats because I thought you might not sign if I didn't. So the part about the floormats doesn't really mean anything.

Breyer:

Breyer:

GMay said...

AA updated: "Well, no. There is a federal constitutional right covering that point, so you don't get the state-to-state variation. And that's the question: Is it a federal constitutional right or not? When you're arguing that there isn't a right, you're saying the law can vary from state to state. When is that intolerable and when isn't it? We all agree (now) to the uniform resolution of the school segregation problem that excluded decentralized decisionmaking. There is an Equal Protection right."

It's strange how easily visible this particular right is, yet one that is far older and more clear seems to be up for discussion. The parallel Wysocki was drawing was very apt and you seem to miss his point.

"But there was, recently, a disagreement about the Second Amendment, and Breyer was on the side that thought there was no individual right. Put another way, Breyer's side of the Court thought that decentralized policymaking could govern. Do you think that's terrible? If you believe that there's a right, then, yes, of course, you do."

Part of the problem here is that you use the word "believe". The federal right enumerated by the 2nd ammendment is not an article of faith. The onus is on someone who disagrees with this fundamental right to prove why it can be ignored, then propose a constitutional ammendment.

If I'm way off base, I'd appreciate an explanation.

Joe said...

(The Crypto Jew)
The Army is unconstitutional; the Navy, constitutional.
No, FLS, “armies” are PERMISSIVE, the Navy is MANDATORY…we MAY have an Army, we SHALL have a Navy…nice try though.

victoria said...

Pastafarian, I didn't think Wallace was that much of an idiot.


Vicki

Quayle said...

A well organized militia is necessary, and, according to Breyer, with it comes the right of citizens to keep and bear arms.

Which is why my national guardsman neighbor parks his M1 tank in his driveway, and my cousin Air National Guardsman has a basement full of tactical nukes.

They're allowed to keep and bear arms derived from their work in the militia.

former law student said...

we MAY have an Army

Read carefully. Congress may maintain a Navy, but raise and fund an Army for no longer than two years. They were worried about standing armies, but conceded that they would occasionally be necessary. Originalists (or original public meaning types like Scalia) should be ready to defund the army.

Jay said...

uh-oh:

BREAKING: Court Rules In Favor Of Virginia Challenge To ObamaCare


It is going to be an interesting day...

Pastafarian said...

Althouse said: "...and then, don't you remember all the times you made the argument that it wouldn't be so terrible because individual states could make their own decisions and people could move (or travel) to the states that gave them what they wanted?"

Implying, I guess, that conservatives are hypocritical, because we don't mind sending someone who wants an abortion across the state line to Maryland, where, apparently, everything goes. It's the wild fucking west in Maryland. But we do mind sending "sportsmen" over there to do their "target shooting".

A couple of small differences between abortion and the right to keep and bear arms.

One (I'll let you guess which) is a fundamental human right, explicitly included right up at the top of the Bill of Rights.

In fact, it's arguably the most fundamental right: It's the right that ensures that we still have all the other rights. If you think we're free men because of laws and lawyers (and law profs), you're naive.

In fact, the amendment states that it shall not be abridged. It doesn't say that "Congress shall make no law", preventing only congress from abridging it; no, it says it shall not be abridged period, by anybody.

Point out to me where there's such an explicit guarantee about abortion rights, and I'll accept the parallel.

former law student said...

Which is why my national guardsman neighbor parks his M1 tank in his driveway, and my cousin Air National Guardsman has a basement full of tactical nukes.

The Second Amendment does not protect ownership of any arm that you can't carry, per the ordinary meaning of "bear" in the late 1700s.

virgil xenophon said...

Sportsfans, no less than that great conservative thinker Larry Tribe believes the 2nd Amend. confers gun ownership rights directly on individuals. "Without individual gun ownership we don't get Lexington or Concord" Tribe is on record as stating. Hello?

Joe said...

(The Crypto Jew)
Article 1 - The Legislative Branch
Section 8 - Powers of Congress:
________________________________________________________________________
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;

And this ‘proves” armies are unconstitutional, HOW? Again nice try…should the US Congress attempt to maintain the Army longer than two years, you’d be getting closer…I realize you are trying to “prove” Conservatives like Scalia are wrong or two-faced, but this ain’t going to do it. But thank you for playing.

traditionalguy said...

My only question is how long will it take Breyer to come to my home or neighborhood with his guns blazing to defend me? Thirty days after my funeral? Or if I am favored, maybe after my death and the before the casket is lowered and the dirt is filled in on top of it. But I am sure that he is the really nice little man he pretends to be, who is only thinking about what is really best for surplus people. We have got your number, Breyer.

Pastafarian said...

FLS, I think there were a few founding fathers who personally owned armed frigates who might disagree with that "bear" interpretation.

Rialby said...

I couldn't watch the interview. His condescending, halting way of speaking, pausing after each 5 words drove me up and down the living room wall. What a pedantic fuck.

LakeLevel said...

You expect Left Wingers to be consistent in their arguments? There is a reason that truth is relative in Lefty World: When you dig deep enough in their arguments, there is always some refutable foundation.

Skyler said...

The problem with the abortion decisions (Roe and Casey) is not only that they create a fundamental right that was never hinted at in the Constitution, or that they denied states the ability to set separate policy, it was that the Supreme Court of the United States recognized that the fetus has some sort of right at some point, but explicitly refused to balance their rights at all.

Everywhere else in law, courts do their balancing of rights. Usually, they conclude that the party most able to control whether something happens has more responsibility and burden when there are consequences for what happened.

The fireworks manufacturer is responsible if his factory explodes and property is damaged.

The doctor is responsible for making medical mistakes, but is not responsible for the initial injury.

The person who touches the fragile person is responsible for any injury sustained no matter how innocently intended

Yet, when a woman who has cheap access to any number of different kinds of effective birth control, both before and immediately after conception, fails to prevent an unwanted pregnancy, she is not held responsible at all, and the entire burden of her poor planning and immature behavior is borne by the unborn.

So, when you argue that wanting federal protection for arms rights requires you to have federal protection for abortion rights, you're only looking at half the equation. The child requires protection from those that would kill it. The child has no say it where it can live or what jurisdiction's laws apply.

Joe said...

(The Crypto Jew)

I mentioned Dred Scott earlier. I think we are STILL living with the repercussions of Dred Scott. Because SCOTUS ruled as it did about slaves, NEVER being free and having standing, the US passed the 13th, 14th, and 15th Amendments. The 14th Amendment’s Due Process Clause began the long march of “incorporation” of the Federal Bill of Rights into the states. By “discovering” a Federal Right to abortion, the SCOTUS, via the 14th forced it onto states. When properly it was and IS an issue for states to deal with.

Ann Althouse said...

"I couldn't watch the interview. His condescending, halting way of speaking, pausing after each 5 words drove me up and down the living room wall. What a pedantic fuck."

I totally know what you mean, but at the same time, I've always enjoyed the way he speaks. I think there's a real charm and modesty. Well, it's pretty Obama-like, really. It can easily strike you as friendly or aloof.

Chef Mojo said...

Off topic, but the Drudge reaction to the Virginia v. Sebelius decision is priceless!

A picture of Obama standing partly behind a blue curtain, with "Unconstitutional" as the caption.

The man behind the curtain, indeed.

former law student said...

I don't have time to give a class in constitutional interpretation right now. Perhaps you'd take John Adams' word?

. . . all nations, under all governments, must have parties; the great secret is to control them; there are but two ways, either by monarchy and standing army, or by balance in the Constitution where the people have a voice, and there is no balance, there will be everlasting fluctuations, revolutions, and horrors, until a standing army, with a general at its head, commands the peace, or the necessity of an equilibrium is made appear to all, and is adopted by all.

Or the commentary on the Constitution by the great Justice Story:

The militia is the natural defense of a free country against sudden foreign invasions, domestic usurpation of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expense with which they afford ambitious and unprincipled rulers to subvert the government, or trammel upon the rights of the people. The rights of the citizens to keep and bear arms, has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary powers of rulers: and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

The contemporary rationale against maintaining a standing item was put forth in Virginia's Bill of Rights of 1776:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state: that standing armies in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Browndog said...

Joe said...

"When properly it was and IS an issue for states to deal with."

Be careful using such unambiguous language. You'll force the hand of the lawyerly, scrambling to parse the nuances of your usage of the word "IS", and how you applied it, and how it is to be "correctly" applied...today.

Joe said...

(The Crypto Jew)

Wow, FLS, you mean that the Founders were suspicious of standing armies? Who knew, I guess that whole New Model Army thing and Cromwell must have been instructive. However, what this has to do with the constitutionality of the Army, US (Standing) or the Right to Keep and Bear, is beyond me.

And just to throw fat on the fire…the whole “standing army” v. militia thing was a nice polite fiction, none of the Founders believed a militia was the equal to a standing army. They just didn’t think they were going to need an army, facing Indians, and pretty much nothing else. The “militia” got its @rse handed to it EVERY time it met the dangerous standing British Army…Citizen Soldiers STINK, unless they’ve got some professionals providing staff work and backbone.

Freeman Hunt said...
This comment has been removed by the author.
Alex said...

Rednecks think they have the god-given right to own 100 guns and 30,000 rounds of ammo. Hee-haw!

Freeman Hunt said...

A parallel between abortion rights and second amendment rights seems rather weak considering that one does not appear in the Constitution and one explicitly does.

Joe said...

(The Crypto Jew)
A parallel between abortion rights and second amendment rights seems rather weak considering that one does not appear in the Constitution and one explicitly does.
It’s a “living document” Freeman. Second Amendment has died a Natural Death, Abortion has taken its place, this is not hard to understand, Womon….Sheeesh, next you’ll be trying to say Obama and Bush AREN’T War Criminals.

Charlie Martin said...

Doesn't Breyer's argument apply equally well to all ten amendment in the Bill of Rights? After all, Madison didn't think any of them were necessary. So, it would appear if the right to keep and bear arms is contingent, mutable, depending on local decisions, then the rights to free speech, the press, and freedom of religion are too.

EDH said...

Didn't most of the state laws restricting abortion that have been struck down by the court regulate the offering of abortion services by medical providers, not the right of individuals to undergo one?

I don't think anybody argued that an individual 2nd Amend right to own a gun in the home equals you have a right to buy one in DC.

HDHouse said...

@former law student:

I've been referencing that and other similar contemporary writings for years on here to no avail. just ask some of these pin heads to define "well regulated" some time.

since ann is going to have a "red meat" tuesday, we can only hope that these 'gottahavemygun" types and come out with something other than "cold dead hands".

Jay said...

It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace,

Um, that's great, but nowhere in anything you've cited is "Congress Shall not"

You do realize that "against sound policy" is not "unconstitutional" right?

Jay said...

just ask some of these pin heads to define "well regulated" some time.


Imbecile:
It isn't that hard.
It means: "a properly functioning militia"

You are not that bright and easily misled.

Lucien said...

So is Breyer saying that we should look to the intent of the "Framers" of the Consitution or to the original public meaning of the words used in it?

By bringing up the need to have tha Constitution ratified, he nods to the fact that the way the people who actually voted (or not) to ratify the thing understood it is significant in some way. Yet by channeling Madison he seems to be saying that if, by some artifice, the Framers could obtain ratification, then what matters most is their subjective intent, not the understanding that the ratifying voters had based on the artifice employed. Is that what he really believes? Is that how he does contract law too?

Since a nationalized militia could, so far as I can see, be "well regulated", how does the Second Amendment prevent it, unless the right of the people to keep and bear arms would survuve any such nationalization? If so, then the text does support that right and Breyer's argument would seem to be that as a matter of policy the militia right is obsolete. But if that is the case, then isn't the remedy an Amendment doing away with the right to keep and bear arms, rather than a ploy to interpret it out of existence?

Is Breyer saying that handguns aren't "arms" or would not be understood as such? If so, he should read more about Burr and Hamilton. The rationale for banning some arms seems to be one of shifting principles. In one case (Miller?) the Court said there was no right to own a sawed-off shotgun because such weapons had no military use. Now, presumably, we have many gun rights oponents who would ban some arms on the grounds that they have only military uses.

Rialby said...

What's funny is that I proposed just this solution - vote with your feet - to a liberal friend who was complaining about the lack of congressional representation for DC. I suggested that it's always been that way, that you shouldn't have moved there knowing that if you wanted it and that, if you were born there, and wanted representation, you should move to Maryland or VA. You'd thought I told her to move to Marakesh.

I guess it's all about what you value.

Skyler said...

"Citizen Soldiers STINK, unless they’ve got some professionals providing staff work and backbone."

As a citizen soldier, I can tell you as a fact that we do indeed stink because when we mobilize we are usually in the field and showers are infrequent.

But your larger point is correct that we could not be effective without the backbone of the active forces.

former law student said...

The Constitution granted limited powers to the Federal government and must be interpreted that way. Any error should tend to restrain the government.

Hoosier Daddy said...

It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace,...

FLS brings up an excellent point. The Founding Fathers were indeed suspicious of professional standing armies and through the majority of our history we had a inconsequential military force. At the beginning of the War of Northern Agression, the US regular army consisted of 16,000 enlisted and officers. Individual states raised their own regiments and the quality (or lack thereof) showed for the first several years. After that, we demobilized and 50 years later had to start from scratch when Germany dragged us into WW1. After that we demobolized and 20 years later our lack of a professional standing army showed its mettle at the Philipines and Kasserine Pass. Then we again demobilized and 7 short years later were hastily refurbishing stripped out Sherman tanks at the local VFW to try and save South Korea.

Hoosier Daddy said...

During the time of the Founding, our 'well regulated militias' were anything but. Typically they consisted of the able bodied men who, when feeling the need to get out of the cabin for while, would attend 'drill' which usually consisted of sitting around a fire and getting drunk.

Cedarford said...

former law student said...
"Which is why my national guardsman neighbor parks his M1 tank in his driveway, and my cousin Air National Guardsman has a basement full of tactical nukes."

FLS - "The Second Amendment does not protect ownership of any arm that you can't carry, per the ordinary meaning of "bear" in the late 1700s."

FLS wrong on several counts. Par for usual.

1. Nothing in the Amendment talks about arms you can physically carry. People who word-parse the Sacred Parchment aside. But late 18th Century language was a follow-up to the 1688 Glorious Revolution where openly carrying, displaying certain arms like swords was allowed citizens themselves to "bear" vs. limiting them to soldiers of the Crown or an aristocrat and his retainers previously.

2. Most interpretations state they meant small arms. And made no distinction if someone was on foot or using a boat or a horse to carry them. Guns were single shot. It was not uncommon for hunters to go out in a boat with multiple fowling pieces. Only right wing and libertarian nut-cases think the 2nd extends to all modern weapons and support technologies needed to wage effective war.

3. The same nutcases would love FLS's naive limit - anything you can personally carry.
That would mean MANPADs, the mini-gun Jesse Ventura had in "Predator" save all the smaller machine guns. Flamethrowers, enough anthrax spores to wipe out a 3rd of a city, enough C-4 or claymore mines to kill thousands.

And of course, special nuke weapons. Already man-portable since the 50s, and miniaturized since then. And most the weight of one is not the detonation apparatus but the weight of heavy lead/DU inertial nuclear tampers and permissive action links.
Get rid of the PALs and use rebar and concrete to substitute for tamper components once you get the nuke in and sited in the target area - the "business part" of special demolition munitions can be carried by a kid with a backpack. (suitcase nukes the slang equibalent)

rick said...

c3 said "I couldn't watch the whole thing. I liked it better when SCOTUS justices kept quiet. I don't like them writing books while they're still sitting on the bench."

I disagree. Let these justices speak their as frequently as possible. It reveals a new level of educated ignorance rarely seen by the American public. This guy is a flaming idiot. Reasoning /logic skills of a third grader.

We'll off to Maryland I go, gun in hand, bible on the front seat to exercise my rights.

West said...

This is so JUST LIKE abortion and school desegregation. I am going to stroll right over to my bookshelf and re-read those provisions of the constitution that roll off the tongue so nicely:

"The Right to an Abortion Shall Not Be Infringed"

And

"To Promote The General Welfare by Providing State-Controlled and Financed Education"

You can just feel the weight of history, can't you?

Daniel Fielding said...

Justice Breyer was so very predictable. I didnt expect him to say anything that his background as a effete, left-leaning man with an urban upbringing wouldnt say.

Joe said...

(The Crypto Jew)
The same nutcases would love FLS's naive limit - anything you can personally carry.
That would mean … the mini-gun Jesse Ventura had in "Predator

You make that sound like a bad thing. The “Six-Pac” is Da Bomb, dood…of course you really can’t fire it at the rated RoF, even if you are Sgt. Rock.
The scene were the team unloads on the Predator, after Ventura eats it, is classic, they must level .5 Hectares! Until the “Lobby Scene” in The Matrix there was no better movie ultra-violence……

former law student said...

cedar: you're arguing that limiting arms to what can be carried is too restrictive or too generous?

Cedarford said...

EDH said...
Didn't most of the state laws restricting abortion that have been struck down by the court regulate the offering of abortion services by medical providers, not the right of individuals to undergo one?

I don't think anybody argued that an individual 2nd Amend right to own a gun in the home equals you have a right to buy one in DC.

===================
The problem, EDH, is that Fed legislation that blocked mail order sales of firearms and prohibited sales to non-residents means that for a DC or NJ resident to own a gun, they must buy in their place of residence. And if they cannot buy because of outright ban or near-impossible "permissions" that state or municipal officials control - they cannot own.
You likely don't own a weapon, or you would know you simply can't go from DC to Virginia or LA to Vegas to do your gun shopping.

The right to own a gun is indeed limited to the right to buy one.

Make your own? Nope, homemade guns are illegal, save certain blackpowder guns that can be assembled from licensed kits.

Saint Croix said...

Now this is a judge who sees in the Constitution a right to induce labor, deliver a baby, and inject poison into her neck. From this we know that Breyer is an assshole. And a liar. So it shouldn't shock anybody that he is completely willing to make other Constitutional provisions--that are actually written in--disappear. If he can make people disappear he can make laws disappear.

But it is kind of annoying for him to pretend that he gives a shit about history. "Congress shall not nationalize any state militias," would be a clear and concise way of stating what Breyer says Madison meant. Apparently Madison is a moron who can't draft a decent law. All those Americans who think they have a right to bear arms, they're confused because Madison is such a pisspoor writer. Thank goodness Mr. Free Floating Fetal Head is there to tell us what Madison meant to say.

Fucking asshole.

george said...
This comment has been removed by the author.
Browndog said...

"Ignorance of the Law is no excuse"

What that law is-is subject to debate, and changes daily as judges play "Dances with Nuance" with every definitive ruling, cherry picking case law to support today's "new"law.

The law IS what it says it is.

Unless, the meaning of the word "is" is no longer what it was, but is now what it is-

Laws don't change. The meaning of the words that define the law changes, changing the law.

Zen, and the Art of Language Maintenance.

It's a lawyers world, and we're just living in it.

george said...
This comment has been removed by the author.
Skyler said...

"3. The same nutcases would love FLS's naive limit - anything you can personally carry.
That would mean MANPADs, the mini-gun Jesse Ventura had in "Predator" save all the smaller machine guns. Flamethrowers, enough anthrax spores to wipe out a 3rd of a city, enough C-4 or claymore mines to kill thousands."

Yes, all weapons should be allowed. Except that we don't even allow nation-states to possess biological or chemical weapons, let alone nuclear weapons.

I'm all in favor of owning machine guns. Even artillery. I just can't afford an M-198 howitzer, nor do I have a place to store it.

george said...
This comment has been removed by the author.
george said...

When the Founders wrote the Constitution limiting the power of government it was people like Breyer whom they had in mind as being the threat against which they were guarding. They knew his sort as the type drawn to the abuse of power. If it is anything, our Constitution is an acknowledgment that the fox will always end up guarding the hen house so hen house guards should be chosen carefully ... and the hens should damn well arm themselves just in case!

Cedarford said...

former law student said...
cedar: you're arguing that limiting arms to what can be carried is too restrictive or too generous....

I'm saying FLS, that "arms one person can physically carry" has no relation to "keep and bear". Apples and oranges.

What one can carry even back then in the 18th century had limits in rules of war. One did not carry a bag of arsenic to poison wells of people hostilities were underway against, the British Army's strategy in MW America and in Canada of sending Indians aligned with the French off carrying gift trunks loaded with smallpox infested blankets was quickly detected and ended as "unacceptable" weaponry by the Crown when they discovered it was going on.

Also, clearly, weapons that relied on a horse or boat to use them effectively were allowed to private individuals. One weapon in common use we forget about was the horse-carried long lance. Lancers had a 900 year history, up to WWI. Quite common in America for wars, intimidation, and hunting well into the 19th century.
Always allowed civilians for hunting and defense, but relatively useless without a horse. (the pikes of footsoldiers are similar-looking, but used very differently.)
And a mounted archer is essentially also using a common weapon in a very different way than a foot soldier. But no one thought of a "horse use prohibition".

traditionalguy said...

Professor...You spoke about Breyer's style of presenting his arguments as done in a charming way. Yes, but what he says is, "Trust Me ...I am well meaning and harmless." He is asking us to be sheep surrounded by wolves who lay down arms and Trust Him. To me that throws up more red flags than a presentation by a commenter like shouting Thomas.

former law student said...

george -- can you delete some of your reposts? blogger complains about long comments but then posts them anyways.

lyssalovelyredhead said...

Haven't read the comments yet, but my response to the issue of federalism verses rights is that it comes down to government oppression.

For example, we have to have a nationwide right to free speech, because the main reason that that freedom is valuable is that we can use it to speak out against the gov't. No freedom of speech = too much gov't control.

It's the same with gun control- the gun grabbers have, in most cases, taken away the rights of law abiding citizens to protect themselves, making them more reliant on the gov't. More gov't reliance = more gov't control. The second amendment protects against it, so it is not appropriate for that to vary by locality.

- Lyssa

J said...

I like the current system for appointing SC justices, but we really do need a California style ratification system so voters have the opportunity to fire people like Breyer.

jcr said...

Gee, Mr. Justice... If I want to defend my family, my home, and my neighbors, do I have to jump on the subway? What if the perp doesn't accommodate me by jumping on the subway with me, instead of attacking my home in a city with a gun ban?

We don't all have government goons following us around to provide round the clock security like you do, you ivory-tower putz.

Cedarford said...

Skyler - "That would mean MANPADs, the mini-gun Jesse Ventura had in "Predator" save all the smaller machine guns. Flamethrowers, enough anthrax spores to wipe out a 3rd of a city, enough C-4 or claymore mines to kill thousands."

Yes, all weapons should be allowed. Except that we don't even allow nation-states to possess biological or chemical weapons, let alone nuclear weapons.

I'm all in favor of owning machine guns. Even artillery.


Somehow, Skler, I think your libertarian "Freedom of Arms for Freedom Lovers" sort of collapses...

On the notion of a raving lunatic Unabomber type out purchasing Russian SA-24 Man portable air defense missiles.

Or the trading action at the local mosque as freedom-loving Islamoids haggle and trade blocks of C-4 for machine guns or swap SAWs for 200 meter lethal radius heavy mortars and dozens of rounds.
Or MANPADs....

george said...

Sorry for the multiple posts. That was the first time I ran into that problem. Serves me right for being so long winded. I just left a short version since upon further reflection I don't think Breyer made an argument worth a response.

I did find this earlier quote where Adams justifies the right to bear arms to be interesting though.

"since it offers a strong moral check against the usurpation and arbitrary powers of rulers: and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

This is the absolutely essential argument in my opinion. I don't believe I have heard a lawyer use it in a courtroom since it basically says that if judges get out of line they are subject to execution by the public. Revolution is a chancy enough business that it is self-limiting and conditions have to be particularly onerous to drive people to seek such a remedy but it is absolutely essential that it be there when it is needed.

It also explains the left's hostility to the 2nd amendment. When everything you advocate has to be achieved by force it helps if you have a monopoly on it. Everything else is just a side issue.

former law student said...

george -- it's a quirk of blogger. But I know our hostess dislikes reposts, so I thought I'd give you a heads up.

Paul Zrimsek said...

It occurs to me that some of the questions in this interview were just the sort that judicial nominees say it would be improper to answer in a confirmation hearing. This might help explain Breyer's sympathy with what he imagines to have been Madison's attempt to bamboozle the ratifiers.

Pogo said...

Which words appear in US Constitution as an enumerated right?
a) gay marriage
b) abortion on demand
c) health care
d) keep and bear arms

HINT: It's the only one the left does not recognize as a right, and so wants to severely limit.

luagha said...

This is something I often have to explain - you might have seen me post on it before although I don't think to this site.

A ‘well-regulated militia’ means a well-trained militia who can move as a unit, fire to a commanded point of aim, and who will not break under fire.

You would be more familiar with the opposite term, an ‘irregular militia’. The most likely fiction you would have come across the term in is Sherlock Holmes’s books, movies, and cartoons; where he maintains what he calls the ‘Baker’s Street Irregulars.’ They are his pack of orphans and street kids whom he pays to keep him informed and whom he can marshal into a dangerous slingshot-wielding cadre at a moment’s notice. You might see them in the next Sherlock Holmes movie.

‘Irregulars’ can be dangerous troops to fight, but have a tendency to break and run. Famously, President Theodore Roosevelt fought in the American First Irregular Cavalry in his famous charge up San Juan Hill. The First Irregular Cavalry was made up of highly skilled volunteers — all famous lawmen, trackers, sharpshooters, and rangers — but because they had never had the opportunity to train together, they were called ‘Irregular Cavalry’ as opposed to ‘Well-Regulated.’

If you ever read western fiction, or histories from the Western and Civil war area, people often refer to ‘regulars’ or ‘regulators’. A ‘pack of regulators comin’ over the hill’ means an armed group who is trained to work together is on their way - and it's that training that makes them scary.

Obviously, in the Revolutionary War period, the United States did not have a standing army and would not for many years. A ‘well-regulated’ militia did not mean one controlled by rules from the government, but one which had drilled together and practiced with their weapons so that when they were called out, they could march to where they were needed and shoot at what they were supposed to shoot at.

And a 'Minuteman' was, famously, a well-regulated militiaman who could be out the door and on his horse with kit and arms in under a minute.

Freeman Hunt said...

Pogo, are you saying that your copy of the Constitution does not include the issue du jour amendment?

Congress shall make no law abridging whatever practice is currently considered acceptable by the urban well-heeled and super credentialed. Any rights provided for that are deemed unacceptable by these same persons may be considered null and void for the duration of such persons' disdain.

I mean, we all know that that must be in there. So many cases are decided on its basis.

Pogo said...

Geez, I missed that.

Is it penciled in on the backside of the Constitution?

Maybe my copy is defective.
Maybe it even has lead in it!

HDHouse said...

Jay said...
"Imbecile:
It isn't that hard.
It means: "a properly functioning militia"

Actually Jay, it does NOT. Regulated means:

1. To control or direct according to rule, principle, or law.
2. To adjust to a particular specification or requirement: regulate temperature.
3. To adjust (a mechanism) for accurate and proper functioning.
4. To put or maintain in order

A militia operating under a set of rules.

How quaint. Long way away from i don't want to register my machine gun huh Jay?

HDHouse said...

Hoosier Daddy said...
"... they consisted of the able bodied men who, when feeling the need to get out of the cabin for while, would attend 'drill' which usually consisted of sitting around a fire and getting drunk."

Ahhh those are tailgaters at IU football games Hoosier. Same clothes and stuff so I can see your mistake.

Jay said...

Actually Jay, it does NOT. Regulated means:

Your assertion doesn't carry any weight, clown.

Jay said...

Actually Jay, it does NOT. Regulated means:

Do you want to take a guess as to why you're trying to define "regulated" and not discussing the term well regulated militia in the context of the 18th century standard usage?

former law student said...

hdh -- well-regulated means "properly functioning." In order for the militia to work as it should everyone had to be able to arm themselves. The best way to learn marksmanship was to practice with your own weapon.

Don Meaker said...

Consider that the "Letters of Marque and Reprisal" clause presumes private ownership of ships with cannons, which certainly are crew served weapons. That would mean that the original constitution without the 2nd Amendment permits and encourages in certain circumstances, private ownership of machineguns, cannon, torpedoes, missiles. The original constitution (Article IV) also has a Priviledges and Immunities clause which would prevent restrictions of crew served weapons legal in one state from being illegal in another state. Now add the further restrictions on federal and state power of the 2nd and 14th Amendments.

Don Meaker said...

By the way, the Navy (and Marines) were disbanded by the Founders. The last Continental Navy ship, the Alliance, was given to France in partial payment of debt.

The Army was small, but never disbanded, with the cannon (many recovered originally from Crown Point and Ticondaroga by Gen. Knox) were stationed at West Point and guarded by Regulars.

That should put paid to the notion that the Army is somehow more dispensable than the Navy. Rather, the founders put the Army, as a potentially greater threat to liberty than the Navy, on a tighter financial leash.

The Continental Navy was pretty ineffective. By comparison, the Revolutionary war privateers had much more influence.

Kirk Parker said...

Lucien,

"In one case (Miller?) the Court said there was no right to own a sawed-off shotgun because such weapons had no military use.

NOOOOOO! (Please don't be the kind of advocate that makes people say, "With advocates like that, who needs opponents?") Miller did not say that. Miller said that no such argument had been actually advanced, and reversed and remanded.

Then Miller had the ill grace to make the issue moot by dying (or, iirc as more likely, geting whacked) so the rehearing never happened.

m00tpoint said...

As we all know, the "Grand Compromise" of proportional representation in the House and equal representation in the Senate was made for one reason -- so that enough states would vote to ratify the Constitution.

Therefore the SCOTUS can and should declare the Senate unconstitutional. Clearly the Founders did not intend to give small states proportionally more power than big states. They just did that to buy votes.

Having discerned what their true values reallly were, as opposed to political necessity, SCOTUS can do what the Founders would have done (whatever that was) if state legislators (like James Madison) hadn't been such unenlightened boobs.

wtf??

m00t

Wylie E. Coyote said...

#23 Beyer has zippo idea where Rights come from!

See he thinks that Madison, et al “Created” the right to bear arms ie this is something bestowed to people by the ruling elite (that is to say Men)!

Nope the right to bear arms is meerly a codification of your God-given Right to Life, Liberty, and the Pursuit of Happiness…..that is too say you have the inherent right to defend your life, your freedom, and your property from those who want to violate or infringe upon them!

The Right to self defense (bearing arms) is inherent in the PEOPLE and is this power is LOANED to the state (and its officers) not the other way around how Beyers puts it!

Again, supposed “Conservatives” get suckered into giving up the arguement to the left – the question is NOT what Beyers would have you think (what was Madison’s intent?) but rather it should be WERE does the right to bear arms derive from (our Inalienable Rights from the Creator)…….

I can count dozens of “conservative” blogs I read today who simply argue tit-for-tat with Beyer by pulling out some contrary Quote from Madison supporting the 2nd amendment…..its not a question of Madison (or other founders opinions) its a the proper understanding of where Rights dervive from and the proper role of governments in a free Society!

We the People AGREE to allow the State to act on our behalf to Protect those Rights (ie we consent to grant them part of our 2nd amendment right to self-defense by giving them the power to create a police force or Military to protect our rights in collective defense situations!)……..

We need to get a grip ASAP on the concept of Natural Rights, Soverignity of the People, and the proper role of government or else Statists will run circles around us and continue to bamboolze the public with bogus arguments like Beyers creates to justify arbitrary and unlimited govt/elitest power!

Kirk Parker said...
This comment has been removed by the author.
Kirk Parker said...

Oops, pardon my metonymy (and, in particular, then bailing on it for the final paragraph--with a little work, I think you can distinguish "Miller" the case from "Miller" the defendant.)

philmon said...

So ... the second amendment doesn't protect handguns because they're not mentioned. Got it.

It doesn't mention hunting or sport shooting, either -- so presumably those activities aren't protected by it either. But oddly, this is what lefties keep bringing up to "soothe" us.

"the right of the people to keep and bear Arms, shall not be infringed."

It doesn't say "the right of the people to bear arms for militia purposes shall not be infringed."
It does have that introductory clause that provides one important justification -- but again, if you're really going to try to sell us on the fact that the second amendment means we can go sports shooting or hunting and yet we can't keep one for our defense or the defense of others -- let's just remember that the amendment doesn't mention either of those.

What the main clause of the amendment says is:

"the right of the people to keep and bear Arms, shall not be infringed."

It is very general because it is meant to be very general. It is a general right. If they only meant for us to be able to keep ... and BEAR them ... for a set of specific purposes, it would have listed those purposes.

Hunting, sports shooting, and self-defense were clearly understood to be covered, as we didn't immediately start defining those away as invalid. The militia clause can only be interpreted then as an additional, "oh, by the way, and we mean THIS, too". As in "in addition to" what's generally understood.