From Patterico's Pontifications
Justice Breyer is an Originalist on the Right to Bear Arms!*
[Guest post by Aaron Worthing; if you have tips, please send them here.]
*Please note, I am being sarcastic.
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In Ex Parte Bain, the Supreme Court said quite logically that:
Madison himself, far from being a reluctant supporter of the right to bear arms, rebutted the fear that the Federal Government would try to create a dictatorship in Federalist 46 by imagining an armed public resisting such an imagined coup. Indeed, he went as far as to write that in Europe “the governments are afraid to trust the people with arms” going on to suppose that the right to bear arms alone could take down many european tyrannies. And this was written over a year before Madison introduced the original proposal for the bill of rights.
Further, Madison’s entire objection to the Bill of Rights, historians know, is his fear of the principle of expressio unius would be used to enlarge the power of the federal governemtn. That is, he was afraid that by expressly protecting some rights, they were implying that these were the only limitations on the power of the Federal Government. When introducing his original Bill of Rights, he said:
The idea that Madison wanted or desired a constitution so badly he didn’t care about the protections of the Bill of Rights is bizarre. It is a little frightening to see a justice think this way.
And it is even more frightening that he would think that this justifies ignoring the constitution. Even if Madison felt that ratification was “held hostage” (to borrow from the Presidents post-partisan rhetoric) to those who wanted a bill of rights, the fact is he did present these amendments. The American people did ratify it. The idea that Madison’s subjective desire that the amendment should not exist at all should have the effect of vetoing the decision of the people to ratify it is terrifying.
This is doubly true because this logic would apply to every single one of the Bill of Rights. Madison never specifically opposed the second amendment. He opposed the entire idea of a Bill of Rights, for exactly the reason I discussed. So if his supposed reticence regarding the second amendment is a justification for ignoring it, then it is a justification for ignoring everything else in the Bill of Rights.
Of course all that historical background will get you nowhere without the text in support, but in this case we have exactly that. To put it simply, the founding fathers believed in, and recently practiced, the God-given right of rebellion, and while our constitution does not (and indeed, cannot) legalize rebellion, with the first and second amendments Congress did the next best thing. We were granted the right to voice our complaints, to put those complaints in print, to assemble ourselves into a group to address those complaints…
And for that assembly to be armed.
I want to be clear that I don’t believe we have to exercise this kind of “second amendment solution” any time soon. But as Judge Kosinski once wrote:
*Please note, I am being sarcastic.
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In Ex Parte Bain, the Supreme Court said quite logically that:
It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.Justice Breyer would have us believe that he was doing that when he dissented from the decisions extending the right to bear arms:
If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.
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.”What a load of crap. First, if we are going to talk about things other than the words of the Second Amendment, you will lose this debate, Stevie. The idea that our founders, having only recently resisted the British by arms, would turn around and surrender those same weapons to the Federal Government is ahistorical claptrap. The founders were specifically afraid that the Federal Government would lead to tyranny, and the notion that they would be afraid of the Federal Government turning to tyranny and then disarm in the face of that fear is lunacy.
Madison himself, far from being a reluctant supporter of the right to bear arms, rebutted the fear that the Federal Government would try to create a dictatorship in Federalist 46 by imagining an armed public resisting such an imagined coup. Indeed, he went as far as to write that in Europe “the governments are afraid to trust the people with arms” going on to suppose that the right to bear arms alone could take down many european tyrannies. And this was written over a year before Madison introduced the original proposal for the bill of rights.
Further, Madison’s entire objection to the Bill of Rights, historians know, is his fear of the principle of expressio unius would be used to enlarge the power of the federal governemtn. That is, he was afraid that by expressly protecting some rights, they were implying that these were the only limitations on the power of the Federal Government. When introducing his original Bill of Rights, he said:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.And what he was referring to as the “last clause of the fourth resolution” was the original draft of the 9th amendment. The point was that Madison’s reticence was based on a concern that future congresses and future courts would interpret the Bill of Rights as the only limitations on the power of the Federal Government. And Breyer would interpet them even more narrowly, saying that since Madison “didn’t really mean it” even the Bill of Rights themselves would not be actually read as a limitation on the power of the Federal Government. The Federal Government could then do what it was expressly forbidden from doing.
The idea that Madison wanted or desired a constitution so badly he didn’t care about the protections of the Bill of Rights is bizarre. It is a little frightening to see a justice think this way.
And it is even more frightening that he would think that this justifies ignoring the constitution. Even if Madison felt that ratification was “held hostage” (to borrow from the Presidents post-partisan rhetoric) to those who wanted a bill of rights, the fact is he did present these amendments. The American people did ratify it. The idea that Madison’s subjective desire that the amendment should not exist at all should have the effect of vetoing the decision of the people to ratify it is terrifying.
This is doubly true because this logic would apply to every single one of the Bill of Rights. Madison never specifically opposed the second amendment. He opposed the entire idea of a Bill of Rights, for exactly the reason I discussed. So if his supposed reticence regarding the second amendment is a justification for ignoring it, then it is a justification for ignoring everything else in the Bill of Rights.
Of course all that historical background will get you nowhere without the text in support, but in this case we have exactly that. To put it simply, the founding fathers believed in, and recently practiced, the God-given right of rebellion, and while our constitution does not (and indeed, cannot) legalize rebellion, with the first and second amendments Congress did the next best thing. We were granted the right to voice our complaints, to put those complaints in print, to assemble ourselves into a group to address those complaints…
And for that assembly to be armed.
I want to be clear that I don’t believe we have to exercise this kind of “second amendment solution” any time soon. But as Judge Kosinski once wrote:
The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.[Posted and authored by Aaron Worthing.]
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