Breyer: Founding Fathers Would Have Allowed Restrictions on Guns

BY Herschel Smith
13 years, 7 months ago

From FoxNews:

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.?

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  1. On December 13, 2010 at 11:37 am, Burk said:

    Hi, Capt’n-

    I would agree that leaning on unwritten and unlegislated intentions of this sort is terrible law/judgement. But on the other hand, the more basic reasoning of historians stands- that the amendment was never meant to be a blanket individual right, but was a state right for organized militia maintenance. For instance, it does nothing to draw a distinction between artillary and small arms. Why not allow private persons to hold nuclear “arms”? There is no constitutional rationale.

  2. On December 13, 2010 at 1:36 pm, rbj said:

    Burk, the same could be said for the First Amendment. And indeed some states, such as Massachusetts, did initially pay ministers of some denominations (Episcopalian, IIRC) while not others, such as Baptist.

    But then, especially what Breyer is doing, is there’s this pesky 14th Amendment which has incorporated at least some of the first ten amendments to the states. And if you’re incorporating some, why not the others?

    Neck, there’s a stronger argument not to incorporate the First rather than the Second, as the First starts out with “Congress shall make no law. . .” A clear intent to only limit Congress’s power, the Second only says ‘the Right of the People.”

  3. On December 13, 2010 at 1:42 pm, Fox said:

    Well said, but do me a favor and change “slight” to “sleight”, and then nuke my comment before someone from the Word Police decides to deride the entire post due to a common spelling error.

    Because, if you can’t win the argument, argue the punctuation! Or the spelling! <=====(Or the fragmented sentences!)

    HPS: Corrected and thanks for the editorial review. My prose sometimes stands as a testament to what happens when things are typed way too late at night.

  4. On December 13, 2010 at 1:44 pm, hitnrun said:

    So because the Madison faction (supposedly) made a deal with the majority of conventioneers who would refused to go along with regulating firearms, it was “not the intent of our founding fathers” to limit the ability of Congress to regulate firearms, if by “our founding fathers” you mean His Majesty King James Madison I.

  5. On December 13, 2010 at 2:15 pm, Baltar said:

    “Why not allow private persons to hold nuclear ‘arms’? There is no constitutional rationale.”

    Really? [said with the same disdain as the fellow watching someone pluck a cell phone out of the urinal in those Microsoft commercials] OK, I’ll play:

    “According to the constitutional philosophy of penumbras and emanations, there’s no distinction between unwanted collections of cells inside the womb or outside. Why not allow women to commit infanticide? There’s no constitutional rationale.”

    Do you find this argument fatuous? Do you see it full of fallacies and counterproductive to the the issue at hand?

    Good. Now I don’t have to waste my time with a refutation of your argument.

  6. On December 13, 2010 at 2:19 pm, Casey said:

    Burk, aside from the rhetorical weakness of referring generically to “historians” (All, or some? Which?), I may consider you have a point about artillery when you explain just how someone can “carry & bear” a cannon? Or a nuke, for that matter.

    Then there’s the matter of self-defense; I would love to hear someone explain how one may use even a 1-kiloton bomb to ward off a mugger or rapist. It might work as a home-defense weapon, but I expect that would upset the neighbors, if you managed to survive the detonation. :)

  7. On December 13, 2010 at 2:30 pm, John Primmer said:

    Here’s a question for Justice Bryer. If Madison tolerated the Second Amendment solely because it was needed to get his document (the Constitution) adopted by the States, then why didn’t he bother to include it in the Constitution, which was ratified May 29, 1790? The Second Amendment is not to be found in the Constitution adopted on that date. It was added later, as part of the Bill of Rights, which was ratified a year and a half later. Hey, could this be why the Second (as well as the First and Third through Tenth) are called “Amendments?” Maybe we should refer to this particular activist Justice as Steven (Don’t Know Much About History) Bryer.

  8. On December 13, 2010 at 2:31 pm, Kazinski said:

    Madison (may have) had his fingers crossed is a constitutional argument?

    Actually, that does Madison a disservice, because there is no evidence Madison had any intention of going back on his word, surely if he had any intention of repealing the 2nd amendment he had the opportunity to propose it while he was President. Breyer’s argument seems to be, Madison didn’t have the opportunity to renege, so we’ll do it for him.

    And in Breyer’s ridiculous argument is the unspoken concession that the 2nd amendment did intend to protect the individual right to keep and bear arms.

  9. On December 13, 2010 at 2:32 pm, hitnrun said:

    @Burk: Spoken like a true law student. You don’t see where in the Constitution or constitutionally faithful law a person can be forbidden from owning a weapon that is not even theoretically possible to use without killing at least hundreds, if not millions of people?

    As for the thrust of your point – and the more medicated suggestion about artillery – you’re right, there is no distinction. Scary, huh? That means people are allowed to not only own weapons, but *effective* weapons. Why, it’s almost as if the framers wanted the people to have the means to overthrow the very government they were setting up if it were to become tyrannical! Didn’t they know about Medicare?

  10. On December 13, 2010 at 2:36 pm, Jim O'Sullivan said:

    Either I’m confused, or someone else is. The Constitution was ratified in 1787. The Bill of Rights, 1791. I find it hard to believe that the ratifiiers of the constitution (at least the first 11 states) were relying on Madison’s promise to add a Bill of Rights when so many of the Constitution’s supporters (notably including Hamilton, principal author of the Federalist Papers) opposed it. So how could those first 11 states have “voted to ratify the Constitution because the Bill of Rights contained the Second Amendment”?
    I’m not trying to be smug or snarky. I just can’t understand why those 11 would not have instead returned it to sender with a note saying, “get back to us when you tack on a Bill of Rights.” Why would they have ratified it with the B of R still hanging in the balance, if the 2nd Amnendment is what motivated ratification? Does not compute.

  11. On December 13, 2010 at 3:00 pm, Jim O'Sullivan said:

    John Primmer’s comment was posted as I was typing mine. I didn’t of that. Maybe I was giving Breyer too much credit. If there’s a Supreme
    Court Justice who doesn’t know that the Constituion and the BR were not passed simultaneously, God help us.

  12. On December 13, 2010 at 3:00 pm, Alexander the great said:

    Breyer is right. It’s right there in the Constitution. If you are unable to exercise your freedoms in one state, just get on your horse buggy and ride somewhere else.

  13. On December 13, 2010 at 3:21 pm, SChaser said:

    It gets worse. In the interview, he saw no problem with guns being outlawed in DC because “if you want to go to a shooting range, just drive to Virginia” – as if the only purpose of guns was sport.

  14. On December 13, 2010 at 3:22 pm, RSweeney said:

    With a wave of his hand, history is erased and replaced with a government unrestrained.

    The Pennsylvania Constitutional Convention Dissent was among the first and most influential calls for a Bill of Rights. Undeniable authority on the original intent of the founders as to the right to bear arms.

    It clearly stated that one of those rights was that of the individual citizens to own and carry firearms for personal protection, for protection of the community, for hunting of game and for the common defense against both invasion and the overthrow of a tyrannical government.

    Breyer is PRECISELY the kind of statist sophist that the founders feared would attempt to subvert the Constitution and the concept of limited enumerated powers.

  15. On December 13, 2010 at 4:33 pm, Gryphon said:

    Wonder if Breyer would like to go on a pheasant shoot…. Hmm?

  16. On December 13, 2010 at 5:05 pm, Andy Freeman said:

    Since DC’s subway system does not allow ordinary folks to carry guns, his “get on a subway” advice is curious.

    Is he suggesting that he’d vote to overturn the DC subway policy?

  17. On December 13, 2010 at 5:35 pm, tom swift said:

    Among the many weak points in Breyer’s argument is that he apparently assumes that Madison was anti-gun.

    Madison is known to have had a pair of dueling pistols, and if I may speculate as wildly as Breyer, he had them for dealing with unusually obstinate types.

    And of course they all knew about artillery in those days. They not only believed that private owners would have artillery, they relied on it. Artillery rivaling that of the Royal Navy was routine on ships, even privately owned ships (as the vast majority of them were). And no licensing was needed, despite the fact that it’s difficult to “bear” artillery in the same sense that one can “bear” a sword, pike, or shotgun. In other words, “bear” does not seem to have been considered the key word in the text of the Second Am.

  18. On December 13, 2010 at 7:43 pm, Don Rodrigo said:

    Has Breyer ever read “Federalist 46” where Madison extensively explained the right of individuals to bear arms? That he put it in the context of state and local militias of the times notwithstanding, the abiltiy to form militias was predicated on the notion that individuals would posess their own rifles and muskets. His important message was the need for citizens to be armed in such numbers as to be potentially capable of overwhelming any standing army that a small central government could possibly maintain.

    The various states and localities did not consolidate these private weapons and never intended to. State armories held cannon, shot and powder, and at most a limited number of muskets of the type that would take bayonets, but that’s it. Madison quantified his arguments very precisely, and also pointed out that Americans were better armed at the private/individual level than any other country’s citizens or subjects of the time. This suited Madison just fine.

    And finally: who cares, even if Breyer were correct in his assumptions? The Constitution gives us the right to bear arms as individuals, whatever “motivation” this alternate-universe “Madison” that Breyer invented may have had.

  19. On December 13, 2010 at 7:48 pm, Don Rodrigo said:

    On December 13, 2010 at 3:21 pm, SChaser said:

    It gets worse. In the interview, he saw no problem with guns being outlawed in DC because “if you want to go to a shooting range, just drive to Virginia” – as if the only purpose of guns was sport.

    No. Wrong. Worse than that: he said take the subway to Maryland, a gun-control state. Also, good luck with carrying a gun on the subway.

    How clueless is this man? I don’t really want to know.

  20. On December 13, 2010 at 8:10 pm, Don M said:

    Article 1 anticipates private ownership of crew served weapons (such as a ship with cannon!) in its grant of congressional powers to grant Letters of Marque and Reprisal. Article 4 Priviledges and Immunities clause forbids states from regulating privately owned crew served weapons differently for citizens from other states, than it would for citizens of its own states. Now add the 2nd Amendment which extends rights necessary to assure a trained militia (keep and bear, as well as practice) beyond the militia to the people. Now add the 14th amendment to limit state power and extend rights to the people even contrary to the legislated desire of the states to restrict rights from “undesireable” elements.

    Breyer is disingenuous at best.

  21. On December 13, 2010 at 8:21 pm, Don M said:

    The 1792 and 1795 militia acts each mention pistols, muskets, and artillery, indicating that the militia was expected to have access to crew served weapons. The Dick Act (~1903?) refers to naval militia, further providing justification for crew served weapons. The most recent use of Letters of Marque and Reprisal was in 1941-1942, to Goodyear, to provide legal cover for their use of their airships to search for Submarines off the US west coast, while Navy airships were fully occupied on the US east coast.

    I can hear it now. “Why would anyone want a privately owned airship?” That people object to private ownership of weapons because it would permit an atrocity is not an indictment of law abiding Americans, but rather an indictment of the writer, who projects his/her evil intentions onto the rest of us. I don’t think that the few people who could afford multiple millions of dollars for a nuclear weapon would be likely to murder themselves by detonating a nuclear bomb out of pique with the neighbors, except perhaps George Soros.

  22. On December 13, 2010 at 9:06 pm, Herschel Smith said:

    Thanks for all of the thoughtful comments. Please note that I granted Breyer’s assumption for the sake of argument. I do indeed question his historical understanding of things, partly because they, unlike us, didn’t live in a push-button society where one button calls for chicken fingers and the other dials 911 for supposed police protection. Whatever Breyer thinks that he knows about those times, he is probably wrong.

  23. On December 14, 2010 at 12:13 am, dmouse said:

    Could be some pushing on the hill soon,what with all are guns being sold to the drug lords. Who will be the first to take up the cause.?

  24. On December 14, 2010 at 1:11 am, zach said:

    I don’t intend to change any minds with this post. This argument is a matter of fundamental beliefs based lifelong experiences and influences. People who believe that gun control is unconstitutional are never going to change their minds and people who believe that sometimes GUNS DO kill people will always believe that should be stronger regulation. While I agree that Supreme Court Justice Bryer was foolish to use an argument so incredibly vulnerable to attack, I am for stronger regulations on gun control. This is not to say I don’t believe in the right to bear arms. I have a shotgun in the closet with two shells above it on the shelf. I hunt and even skeet shoot from time to time. At the same time, if you can’t handle having to wait a few weeks, even a few months to have a background check clear, then you probably ought not have a gun let alone carry one in your belt. Militias’ today love to fantasize about “Red Dawn” scenarios and play army in the woods while real men die to protect their rights. Let’s get over the ego based idea that any of us know what our forefathers intended and start seeking a solution. Oh and “Baltar” before you foolishly use a fallacy to disprove a fallacy with such smug cynicism, take philosophy course. Otherwise make known to all who read how logically ignorant you are.

  25. On December 14, 2010 at 11:30 am, Delobius said:

    Zach, how would a slower background check system impede criminal access to guns? Is there reason to believe that the current instant-check system (NICS) has failed to screen ineligible gun owners? What effect would a months-long background check system possibly have, except to make it more difficult for normal citizens to acquire guns – citizens that would almost inevitably pass the check anyway?

  26. On December 14, 2010 at 12:05 pm, Burk said:

    Don Rodrigo-

    Thank you for your learned reply. That is a wonderful Federalist paper. Its context is state’s rights and resistance to the encroachment of federal power. The state’s sympathetic residents, and their organised militias, complete with armed citizens, would be a final bulwark.

    It seems more than ironic to cite this paper as allowing a bunch of Federal judges to strike down the ability of states and localities to regulate arms as they see fit- especially arms with no military value, but with great local costs to those citizens getting killed in anarchic drug wars. But no matter!

  27. On December 14, 2010 at 5:09 pm, scott s. said:

    If we consider Breyer’s assertion of historians’ opinions regarding Madison’s intent correct, it seems reasonable to me to consider what wording of a proposed second amendment would result in the desired construction. That would seem to be something along the lines of “congress shall make no law restricting the right of states to form militias”. I don’t know the legislative history of the exact wording, but it just seems to me problematic that the resulting wording would have been created if Breyer’s idea is correct.

    However, I think we can consider what the interpretation of the second amendment would be to the states. Now, if we set aside the creation of the states of Vermont and Maine as anomalous for historical reasons, the first states created under the new constitution would be Kentucky and Tennessee. Just considering Kentucky, a look at the constitution of 1792 is illuminating (the same can be said for Tenn): Article VI section 2 can be reasonably read as providing for the militia (though the term is not used) “The free men of this Commonwealth shall be armed and disciplined for its defense. …” That I suppose can be taken to mean the “well-regulated” aspect of the 2d. But Kentucky goes further. Article XII section 23 states “The right of the citizens to bear arms in defense of themselves and their State shall not be questioned”.

    So at least in the context of 1792, with the adoption of the federal constitution fresh in everyone’s mind, the new states seem to believe that the right to arms extends to the people, and not as part of a general militia authorization.

  28. On December 14, 2010 at 9:06 pm, Herschel Smith said:

    Look folks. To Burk and other defenders of Breyer, let me say a few things. Blogging is an experience in saying things succinctly. I have my readers for, oh, two, maybe two and a half minutes. There are special occasions for some of my featured articles when I have them longer, but not usually. I just can’t cover everything in one post.

    But it warrants being pointed out that your positions cry out against common sense. Folk around the time this was all done knew the value of firearms, and not just for holding the state (read here, federal government) accountable. Failure to kill the fox meant death of your chickens, and you didn’t eat. Failure to defend your farm against the thief meant loss of mules, and no way to till the soil. Failure to defend your home against invasion meant death of your wife or children. Failure to kill that bear meant that your children were under threat. There was no 911, no knee-jerk reflexive reversion to the state to protect and defend you and your family.

    And today? Well, the vast majority of crime happens and is finished before the police ever arrive. It isn’t their job to defend you. It’s their job to fill out incident reports and enforce arrest warrants. My point is that defenders of the constitution see the world the same way today as we did 200 years ago.

    There is no possibility – none – whatsoever – that there was ever an intent to confiscate firearms from common folks and keep them locked up in some sort of armory because the people couldn’t be trusted. That position would have been laughable and preposterous 200 years ago, and it is today as well. If you had wanted to confiscate weapons 200 years ago they would have locked you up in an insane asylum, in the bottom of it, in chains, never to see the light of day because you are a danger to society.

    Really. Proponents of gun control need to revert back to history themselves. You need to read secondary literature, and also primary literature. You need to read not only textbooks and personal accounts, but newspapers from that time as well. Only from placing yourself in such times can you possibly hope to understand the cultural milieu that is the framework for the constitution and the bill of rights.

    Claiming that the founding fathers, all of whom had weapons, taught their sons to use them, killed animals with them, and defended their homes with them, would have ever thought of confiscating them is so manifestly ridiculous that it makes us distrust everything else you say as disingenuous.

  29. On December 18, 2010 at 9:54 am, Mr. Mark said:

    To apply Breyer’s logic, any state government could eschew all other constitutional rights as well.

    I’d like to point out that we have a right to keep and bear arms SPECIFICALLY because Madison, Mason, and their peers had the foresight to anticipate people like Breyer. It ain’t for hunting or target plinking – it’s so we can forcibly resist a government that tosses the Constitution.

    Disclaimer: This is no call to arms – just a comment on their purpose of the amendment.

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