6 years, 4 months ago
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.”
That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.
In July 2008, the concurring opinion in “D.C. v. Heller” written by Justice Antonin Scalia and shared by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. found that the district’s ban on handgun possession at home “violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”
The ruling raised concerns by dissenters like Breyer that gun laws nationwide would be thrown out. That has not happened yet.
Breyer, who just published “Making Our Democracy Work,” a book about the role of the court in American life, outlined his judicial philosophy as one in which the court must take a pragmatic approach in which it “should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”
Since the Founding Fathers could not foresee the impact of modern day communications and technology, the only option is to take the values of the Founding Fathers and apply them to today’s challenges.
“The difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing,” Breyer said. “It’s not a matter of policy. It is a matter of what those framers intended.”
He suggested that those values and intentions mean that the Second Amendment allows for restrictions on the individual, including an all-out ban on handguns in the nation’s capital.
Let’s assume for the sake of argument that his history is correct. Breyer’s rationale is this. Because ratification of the constitution was a priority, Madison made it abundantly clear that the federal government had no business in the affairs of states regarding the bearing of arms. The amendment was ratified, solidifying for all time this watershed statement of limits of control by the federal government.
Next step. Because Madison made this deal, contrary to his intent (which Breyer implies but presupposes rather than proves), one may infer from this very amendment the right for states to regulate firearms, up to banning them outright. But notice the sleight of hand. Breyer has turned something dispositive and affirming concerning our rights (see the language in the Second Amendment) and flipped it on its head to mean that it’s merely the federal government that doesn’t have the right to remove our firearms. Someone else does.
He further muddles his logic by referring to deals made in order to get necessary votes in place. As one commenter notes, “Others have picked up on this point, but whether James Madison liked the idea or not, the states voted to ratify the Constitution because the Bill of Rights contained the Second Amendment. So the best that could be said, accurately, is that “a” founding father might have favored restricting weapons, but he obviously did not reflect the majority view.”
And one more commenter observes concerning Breyer’s logic, “So then by this logic, a single payer health system could be adopted through the Supreme Court since the “intent” of the law was to have a single payer system, but since the Libs just wanted to get it passed, they stripped out that part. Laughable and nothing but revisionist history and judicial activism.”
Rhetorical sleight of hand, and logical blunders. And this is the level of scholarship on the Supreme Court of the U.S.?