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Tuesday, December 14, 2010

Justice Breyer

I am generally very impressed with Supreme Court Justice Stephen Breyer he leads me to entertain beliefs in things I am predisposed to doubt. He is a persuasive supporter of the principle of a "living constitution" and by that he does not mean "it can be amended". (added 12/15 - he did NOT look good in this interview)

In an interview with Chris Wallace on FoxNews Sunday on Dec. 12, 2010 he explained why he had voted with the dissenters in the 2008 case “D.C. v. Heller” which dealt with the Washington, D.C. handgun ban which the majority struck down as being in violation of the second amendment.

Breyer's argument was this: When Madison wrote the second amendment he was trying to get "that document" ratified by the states. The states were worried about the power of the federal government. The Congress might nationalize their militias. To show that that could not happen, Madison wrote the amendment to satisfy the states.

Amendment 2
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.

Breyer apparently believes that James Madison, who was at least a fair to middlin' writer, wrote an amendment to prevent the Congress from nationalizing state militias, and in that amendment he did not mention either Congress or nationalizing militias.

In at least two different places in the constitution there is a provision for doing exactly that which Breyer says the states were afraid of: nationalizing of the militia. The states had already approved that constitution. On June 11, 1963, President Kennedy nationalized the Alabama militia which ordered Gov. George Wallace to step out of the schoolhouse door. Breyer apparently believes that that was a violation of the second amendment.

Now if you, in your childlike understanding, are having difficulty with his reasoning, perhaps it is because you have limited experience with "living documents."



  1. OK, I freely admit to having difficulty here and if (by definition) that make my reasoning childlike, so be it.

    As Wayne states, the Constitution (in at least 2 places) provides for use of militia (state resources) by the Federal government. Article 1 Section 8 Clause 15 for example.

    Is Justice Breyer suggesting that the Constitution (including amendments) is self contradictory? Perhaps this is nothing more than an ambiguous usage of the word Nationalization. As I read Article 1 Section 8 Clause 15 I see a constitutional right for the Fed to USE the state militia, but not the right to OWN it (Clause 16) or take it away from the States. I am not seeing any conflict with the 2nd amendment nor do I see Kennedy’s USE of the Guard in the Wallace incident as unconstitutional and that is saying a lot since I have a strong bias against Federal intervention.

    What am I missing here? Is Breyer suggesting that we interpret the Constitution based on Madison’s motives in writing the 2nd amendment? Should we interpret the Constitution based on context at the time it was written? What?

  2. Aside from the strangeness in the original post I think that he is arguing that Madison only put this in here because the states wouldn't accept the document without it. Therefore, (hold on tight) he didn't really mean it. Therefore, it is not really in the constitution.

    It is worth noting that the same argument applies to the first amendment.

    I thought it was a stunning performance.
    He closed with: Do you want to shoot targets with a handgun? Get on a subway and go to Maryland. (!!!)