The Founding Fathers Would Have Wanted Gun Control
So says Justice Stephen Breyer in an interview with Fox News. How does he know? According to Breyer, historians say that James Madison (the primary author of the the Second Amendment) wrote the provision “to appease the states” who were concerned about maintaining control over local militia. Madison’s “motive,” says Breyer was not to create an individual right to carry guns.
Who cares what Madison’s “motive” was? Originalism – properly understood – is not about trying to “channel” the hopes and dreams of the Founders. It’s about understanding what the text of the constitution and amendments would have meant to the public at the time of ratification. It doesn’t matter if James Madison thought the Second Amendment was a recipe for fruitcake. All that matters is the text.
Admittedly, the Second Amendment presents a difficult text: one clause granting a “right to keep and bear arms” preceded by an introductory clause talking about militias. If Breyer wants to debate the meaning of the text, fair enough. But this attempt to guess at what James Madison’s secret intention was is worse than useless.
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May '10
Re: The Founding Fathers Would Have Wanted Gun Control
Stephen Breyer wouldn't understand the intent of the Founding Fathers if a zombie John Adams bit him in the rear...
Jul '10
Re: The Founding Fathers Would Have Wanted Gun Control
Every one of the first ten amendments was adopted in order to achieve consensus among the Framers. So what?
Would Breyer then assert that the entire Bill of Rights was nothing but a cynical scam? Or does he just want to pick and choose?
Edited on Dec 15, 2010 at 12:43pmJun '10
Re: The Founding Fathers Would Have Wanted Gun Control
The best evidence of what they were thinking is what they wrote. Anything else is just useless mind-reading, and postmortem mind-reading at that.
Sep '10
Re: The Founding Fathers Would Have Wanted Gun Control
It probably has a lot to do with my preconceived notions, but every time I see a Scalia v. Breyer debate on YouTube I feel like I just watched a replay of Tyson v. McNeely.
Oct '10
Re: The Founding Fathers Would Have Wanted Gun Control
Does the word RATIONALIZATION come to mind??????????
Oct '10
Re: The Founding Fathers Would Have Wanted Gun Control
The clause "the right of the people to keep and bear arms shall not be infringed" seems pretty darn clear to me. You can't obfuscate it with the well regulated militia part without understanding that in the 18th century the militia included every able bodied man and was not controlled by the government.
Nov '10
Re: The Founding Fathers Would Have Wanted Gun Control
There is no ambiguity. If the Second Amendment is placed within the context of other things written by our Founding Fathers, it is clear that they believed that the citizenry should be armed, in order to protect themselves against government over-reach and tyranny — which is exactly why progressives are so eager to disarm us.
Stephen Breyer is the sputtering bulb on the Christmas tree, so to speak.
Jul '10
Re: The Founding Fathers Would Have Wanted Gun Control
The words, "The People" appear nine times in the Constitution of the United States.
The first time is "We the People of the United States" in the Preamble
The second time is in Article one, "chosen every second Year by the People of the several States"
The third time is in Ammendment 1, " the right of the people peaceably to assemble"
Then comes the Foourth time, "the right of the people to keep and bear Arms, shall not be infringed" in Amendment 2.
Followed by Amendment 4, "The right of the people to be secure in their persons"
After that, Amendment 9, "or disparage others retained by the people"
Then Amendment 10, "States respectively, or to the people"
These being the first 7 that the founders were dealing with, it shows up again in Amendment 17 twice, "elected by the people thereof" and "until the people fill the vacancies by election"
I submit to you that "The People" means the same thing every time it is mentioned, and that what this man Breyer would like you to believe is that it doesn't. It somehow has a different meaning in the 2nd Amendment.
That is Nonsense, plain and simple.
Jul '10
Re: The Founding Fathers Would Have Wanted Gun Control
Lady Kurobara: There is no ambiguity. If the Second Amendment is placed within the context of other things written by our Founding Fathers, it is clear that they believed that the citizenry should be armed, in order to protect themselves against government over-reach and tyranny — which is exactly why progressives are so eager to disarm us.
Stephen Breyer is the sputtering bulb on the Christmas tree, so to speak. · Dec 15 at 1:05pm
Breyer appears not to know his history. The battles of Lexington and Concord happened because American patriots were racing to prevent the redcoats' seizure of our armories.
Nov '10
Re: The Founding Fathers Would Have Wanted Gun Control
Kenneth
Breyer appears not to know his history. The battles of Lexington and Concord happened because American patriots were racing to prevent the redcoats' seizure of our armories.
That is an excellent point. And those events would have been very recent history in the minds of the men who drafted the Second Amendment.
Aug '10
Re: The Founding Fathers Would Have Wanted Gun Control
I have no doubt that some of the founding fathers may have been in favour of gun control.
Luckily, they were outvoted.
Edited on Dec 15, 2010 at 1:31pmAug '10
Re: The Founding Fathers Would Have Wanted Gun Control
Also called a séance.
Aug '10
Re: The Founding Fathers Would Have Wanted Gun Control
For clarification, how would being bitten in the rear by a zombie John Adams help anyone understand the intent of the Founding Fathers? ;-)
Jul '10
Re: The Founding Fathers Would Have Wanted Gun Control
This is simply a baldfaced usurpation, a justice closing his eyes and imagining the world of law through a solipsistic lens. Penumbras and adumbrations by another name. If he were to rouse himself and find some evidence of an 18th C. American consensus on the matter, then perhaps some respect could be granted and the basis for a counter-argument assembled. But he tells us that our representatives have placed vain dullard on the highest panel of judges in the land, one that wishes to legislate based on whatever product may proceed from his posterior rumblings.
I'm sure there's a pony in there somewhere.
Aug '10
Re: The Founding Fathers Would Have Wanted Gun Control
Sisyphus: This is simply a baldfaced usurpation, a justice closing his eyes and imagining the world of law through a solipsistic lens. Penumbras and adumbrations by another name. If he were to rouse himself and find some evidence of an 18th C. American consensus on the matter, then perhaps some respect could be granted and the basis for a counter-argument assembled. But he tells us that our representatives have placed vain dullard on the highest panel of judges in the land, one that wishes to legislate based on whatever product may proceed from his posterior rumblings.
I'm sure there's a pony in there somewhere. · Dec 15 at 1:55pm
Judging by the vocabulary in this post, I think Sisyphus is Conrad Black.
I kid! I kid!
I kid, because I love.
Re: The Founding Fathers Would Have Wanted Gun Control
Someone should send Justice Breyer a copy of William Blackstone's Commentaries on the Laws of England, which was the book most often cited in the fledgling United States in the 1790s. In his exposition of the passage in the English bill of rights from which the Second Amendment derives, as I noted in Republics Ancient and Modern, Blackstone specifies that, in England, the right to bear arms is an "auxiliary right" much like freedom of speech and freedom of the press. It is conceded as a legal or even constitutional right because it is thought essential to the protection of the more fundamental natural rights to life, personal liberty, and private property. To be precise, the right to keep and bear arms is "a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."
Note its double character. The right to keep and bears arms enables us to protect ourselves and our property when the public authority cannot or will not do so, and it enables us to defend ourselves when the public authority itself is oppressive.
May '10
Re: The Founding Fathers Would Have Wanted Gun Control
Misthiocracy
For clarification, how would being bitten in the rear by a zombie John Adams help anyone understand the intent of the Founding Fathers? ;-)
A) He was a Founding Father B) If he intended to bite him in the rear, he would and C) Breyer still wouldn't understand.
Do I have to photoshop you a picture?
Oct '10
Re: The Founding Fathers Would Have Wanted Gun Control
I wonder if Justice Breyer has ever been asked why a militia needs the right to keep and bear arms. I mean, by definition, a militia is a group of armed men. It's like saying the Constitution gives us the right to pay taxes.
Nov '10
Re: The Founding Fathers Would Have Wanted Gun Control
If, as some people argue, the language of the Second Amendment only guarantees us the right to become soldiers, then this nation's history of conscription would argue that it is a right we have to force people to enjoy.
Nov '10
Re: The Founding Fathers Would Have Wanted Gun Control
So, the right of the People (capitalized, notice) to keep and bear arms shall not be infringed because a militia is necessary for the security of a free state. I would imagine the two to be pretty inseparably connected there. But maybe it would be good to define "militia"? Bereket above defined it pretty well, methinks, but something a little more official may do. US law defines the militia as non-felon males of a certain age, as well as females, who are not in the military.
Why not in the military? Is not the military also necessary for security? Of course. But it says "free state." The military can easily be used as a tool of oppression, if it has a monopoly on force. Thus, the militia is also necessary.
But what about the National Guard?
Well, I think we can ask all those Guardsmen who went to Iraq whether the NG is a part of the military or not.