Michael Gaynor
Beware SCOTUS Justice Breyer, constitutional revisionist
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By Michael Gaynor
December 15, 2010

Even if Justice Breyer somehow divined Madison's motivation, it would not warrant judicial revision of the Second Amendment. The Second Amendment means what it says, not what anyone might have wanted it to be. It is amendable in accordance with the terms of the Constitution, but it is not supposed to be repealed or amended under the guise of judicial interpretation.

Stephen Breyer is one of the justices of the Supreme Court of the United States who describes the United States Constitution as a "living document."

That really means that he considers it a document that he can change because he thinks he can improve it.

Last Sunday, on "Fox News Sunday," Justice Breyer, one of the four dissenters in the Heller decision that overturned the federal handgun ban in the District of Columbia, Justice Breyer claimed that James Madison included the right to bear arms in the Bill of rights reluctantly, as an inducement for the states to ratify the Constitution.

Justice Breyer: Madison "was worried about opponents who would think Congress would call up state militias and nationalize them. 'That can't happen,' said Madison."

Justice Breyer justified his dissent in Heller with the dubious claim that Madison personally did not consider the right to bear arms an important check on federal power and reluctantly included it to appease the states into signing the Constitution.

In Federalist 46, Madison surely seemed to recognize the importance of citizens bearing arms as a limitation on federal power:

"The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it."

Assume arguendo that Justice Breyer discovered a Madison diary in which Madison explained his motivation exactly the way Justice Breyer does.

The Second Amendment would still mean what it says.

In Gibbons v. Ogden (1824), the United States Supreme Court, per Chief Justice John Marshall, endorsed natural construction of the Constitution, since "the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said."

Justice Breyer seems to prefer, at least as to the Second Amendment, the converse: those "enlightened patriots" did NOT "intend[] what they said.

In Ogden v. Saunders (1827), the court, per Chief Justice Marshall, noted that "the intention of the instrument must prevail" and "be collected from its words," "its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended," and "its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers...."

As to the Second Amendment, Justice Breyer would rather have ""its provisions ...restricted into insignificance."

Even if Justice Breyer somehow divined Madison's motivation, it would not warrant judicial revision of the Second Amendment. The Second Amendment means what it says, not what anyone might have wanted it to be. It is amendable in accordance with the terms of the Constitution, but it is not supposed to be repealed or amended under the guise of judicial interpretation.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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