U.S. Supreme Court Justice Stephen Breyer demonstrated some typically muddled progressive reasoning on Fox News Sunday, contending the founders would have supported modern gun control laws and sided with the dissenters in the 2008 case D.C. v. Heller.
In a nutshell, Breyer says the framers (James Madison in particular) put the Second Amendment in the Constitution, but they didn’t really mean it.
He argues that the Second Amendment was included simply to ensure ratification of the Constitution, but that the framers didn’t really philosophically believe in protecting the individual right to bear arms.
He buoys his argument by claiming “most historians” agree.
“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.”
As if Breyer really has any idea what “most” historians think.
But I digress.
In fact, Madison wrote in Federalist 46 that an armed citizenry provides a check against overreaching government. And any fair reading of the founders reveals a fear of centralized power and that they advocated for an armed citizenry to provide balance and protect liberty.
Noah Webster wrote in An Examination into the Leading Principles of the Federal Constitution, a 1787 pamphlet aimed at swaying Pennsylvania toward ratification, “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States.”
Apparently, despite his familiarity with “most historians”, the actual reason the founders insisted on protecting the right to bear arms – self protection – is lost on 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 a gun,” Breyer said of the D.C. gun ban.
But let’s accept Breyer’s premise at face value. Let’s assume that Madison didn’t really believe in an individual right to bear arms, and that he would support gun regulation today. And let’s take it a step further and assume many of the framers agreed with him.
The fact remains, the Second Amendment was proposed and it was ratified by the States. That a right to keep and bear arms was only added to ensure state ratification of the Constitution does not diminish its power. The Second Amendment exists, duly ratified by the states, and thus binds the federal government to abide by it – regardless of the reason it was proposed.
Breyer argues the framers added the Second Amendment only to ensure passage, but didn’t really believe in it , so that justifies us ignoring its provisions today. In fact, that the framers found it necessary to add a Second Amendment to gain the support of the people and to “appease the states” should strengthen our resolve to abide by its provisions. We the people, after all, are the source and grantors of all power to the federal government.
But a close examination of Breyer’s comments, and his judicial philosophy in general, reveal an apparent belief that all power flows from government – specifically the judiciary. While playing lip service to the idea of unchanging values, it’s up to him to decide what those are and how to apply them.
Breyer’s revealed the truly muddled-headed nature of his judicial philosophy in his recent book, Making Our Democracy Work , writing that courts should take a pragmatic approach and “should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”
Unwavering flexibility – or something.
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