Feb 24, 2011

Updated: Justice Stephen Breyer's View of the 2nd Amendment

Here is a 13-minute, Fox News Sunday interview with US Supreme Court Justice Stephen Breyer. Justice Breyer is promoting his latest book. Such interviews are rare and Breyer discusses his view of the proper method of Constitution interpretation. Breyer's defense of his dissent from Heller is classic. He begins by claiming that Madison was compelled to included the 2nd Amendment in 1789--after the Constitution was already ratified--because his opponents would call up the state militias and nationalize them. Next he claims that the majority of historians support his view. The intellectual dishonesty of the man is chilling. This is a must see.

If you think his claims regarding Madison's objectives for the 2nd Amendment are accurate, please read 'Why DC's Gun Law is Unconstitutional'

02/24/2011 Update:  David Young’s outstanding rebuttal above provides a high level review of the critical events during the ratification of the Bill of Rights, but it is of necessity somewhat short on specific references. I therefore thought to do some of my own research into the specific issue of Madison’s intent when he introduced the Bill of Rights in the first Congress. Based on Young’s clues, I easily found a supporting source. In ‘The Bill of Rights: A Documentary History, Volume II’, (Bernard Schwartz, 1971, Chelsea House,) beginning on page 764, Schwartz writes that
[During the Virginia State Ratifying Convention, on June 25, 1788, after the Federalists had defeated Patrick Henry’s effort to require modifications and amendments before ratification, the delegates voted to ratify and recommend amendments after the fact.] The next day, a committee was appointed to prepare and report such amendments as by them shall be deemed necessary, to be recommended. Both [George] Mason and [Patrick] Henry were placed on the drafting committee (along with [James] Madison, [John] Marshall, and [George] Wythe) and were able to secure the origin Henry proposals, though only by way of recommendation for subsequent amendments. On June 27, the committee reported a proposed federal Declaration or Bill of Rights of 20 articles to be added to the Constitution, as well as 20 other amendments to the constitutional text. The Convention agreed to the committee report, and enjoined “it upon their representatives [Madison, of course, was one] in Congress to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions.”
(page 842) The 17th item of Virginia’s  proposed ‘federal Declaration of Bill of Rights’  is
17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper , natural, and safe defense of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
 It clearly indicates an individual right. In addition, it is highly unlikely to me that Madison—who sat on the drafting committee—would allow such a clear declaration to be included in the committee report if he was against it. It is also inconceivable to me that Madison’s sole concern in proposing the Bill of Rights was in regard to threats of militia nationalization, given that he had specific guidance from the convention  ‘to exert all [his] influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions’ which included a clear individual right to keep and bear arms.

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