A post by Maynard

Tammy has linked Breyer’s comments, so I’m sure she spoke of this in her Weekend Update. I (Maynard) am posting this without yet having heard Tammy’s analysis…

I’m always interested in hearing the best arguments of those that disagree with me. I’m not simply looking to win; I want to be on the side that deserves to win. To get there, I need to know why (or if) my best trumps their best.

I thought we’d finally settled the argument about the Second Amendment, but here we find Justice Breyer of the Supreme Court still telling us why we’re wrong, and why we’ll ultimately be overturned. Alright, what did I miss?

First, the Second Amendment, in all its simplicity:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

What does it say? I’m forced to acknowledge that I can’t simply dismiss that preamble, “A well regulated Militia, being necessary to the security of a free State…”, upon which a vital portion of the debate seems to hinge. Why didn’t the Framers simply write, “The right of the people to keep and bear Arms, shall not be infringed” period? That would have made things so much simpler…for us, anyway. So how do we deal with those opening words?

On the other hand, proponents of a forcibly disarmed citizenry have an even tougher time grappling with the meat of the amendment, that bit about “…the right of the people to keep and bear Arms, shall not be infringed”. That’s a pretty strong declaration, and impossible to wish away, no matter what its prefix might be.

Here’s what Breyer said:

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.”

…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.

Okay, we’re talking history and law and politics here. Scholars write big books about these details. There’s far too much for me to cover thoroughly in few words here, and there’s plenty I don’t know. But I’ll try to hit the essence as I understand it.

Breyer is saying that the Second Amendment protects, not the citizens, but the states. Hence the “militia” prefix. The Amendment only applies to state militias.

You can see how that argument might be made. But is this the final word? I don’t think so.

First, we have the wording. “…the right of the people to keep and bear Arms, shall not be infringed.” It doesn’t say, “…the right of the state militias to keep and bear Arms, shall not be infringed.” It says “people“. That would seem to be us. As in, “We the people”.

Second, Breyer is arguing that it’s okay for the Federal government to ban arms in Federal enclaves, and it’s okay for state and local jurisdictions to ban arms in their jurisdiction. So in Breyer’s world, an America in which the people are entirely disarmed is not inconsistent with “the right of the people to keep and bear Arms, shall not be infringed.” Seems to me that’s a pretty blatant statement of Orwellian doublethink. The pieces of Breyer’s argument may make sense in isolation and in theory, but the totality is ridiculous. This is sadly typical of the way intellectuals are capable of losing sight of reality.

Third, I’ll cite the notorious Dred Scott decision of 1857. The Court of that era wrote that recognizing African-Americans as citizens

…would give to persons of the negro race…the full liberty…to keep and carry arms wherever they went.

So the early Court did indeed believe that the government wasn’t allowed to deprive American citizens of the right to arm themselves and bear those arms. Breyer is being a revisionist historian in alleging otherwise.

Perhaps the most fundamental historical point to note is that the Second Amendment was written in the shadow of the Battles of Lexington and Concord. The American Revolution began when the British decided to disarm the locals, and the locals declined to be disarmed. Our Founding Fathers, recognizing that a disarmed people are doomed to fall victim to tyranny, wrote the Second Amendment to prevent that sort of thing from ever happening here again. This is the true spirit of the Second Amendment. Can this be denied?

The Breyers of the world make clever arguments. On the surface, some of these arguments seem to make sense. But if you look at the pattern of the behavior of such people, you’ll see an endless list of rationalizations and constructed excuses for ever-bigger government pushing ever-deeper into the lives of ever-smaller people. Every day in every way, there are more tools for the people to be taxed, regulated, controlled. This trend stands in stark contrast to the spirit and the letter of the Constitution, which is a covenant of limited government to which is delegated a short list of enumerated powers. The Framers understood that government is an organ with a natural inclination to metastasize.

The Fox interview closes with a “Let them eat cake” reassurance from Justice Breyer. “Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.”

These are the words of a man that lives in a bubble. He’s got security and property and every comfort. He’s safe from the government because he is the government. The world would be perfect, except for the ugly rumbling of ignorant citizens that don’t know their place. Breyer is a happy man, and he just can’t understand why you’re not happy too. You don’t need a gun. If you’re one of those sportsmen, take the train to Maryland. Problem solved. Second Amendment? What Second Amendment?

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  1. [...] This post was mentioned on Twitter by Tammy Bruce, Winghunter, Jake Rogers, AH, Kevin and others. Kevin said: RT @HeyTammyBruce: Justice Breyer on the Second Amendment http://bit.ly/dFfeEo #tbrs [...]

  2. Pangborn says:

    Maynard,
    Succinct and wonderfully written, as always. I’m surprised Justice Breyer failed to cite European case law or even Murphy’s Law, as he is wont to do, rather than look to the Constitution or the Founding Fathers.

  3. JHSII says:

    If I remember correctly, at the time the 2nd Amendment was written, “militia” meant “every able-bodied male between the ages of 17 and 45″.

    Perhaps Justice Ice-Cream-Guy should remember that!!

  4. ckreider says:

    We have Our 2nd Amendment for such as a time as this!
    As I see it, They will shut down the internet then hoover up the guns.

  5. [...] is from Tammy Bruce’s Blog, you can read the original here. The writer illustrates beautifully the how liberal, statist, intellectual rationalizes away [...]

  6. thierry says:

    Justice Vanilla Ice Ice Creamy is one of those ‘ living, breathing document’/ let’s look to europe freaks aka a socialist-fascist. it’s so telling- the first thing socialists like Hitler do when they take power, after they suspend the congress and crown themselves king, is deprive people of the right to bare arms because it’s implicitly understood that that’s all that stands between the ‘people’ and a tyrant who hijacks the democratic process. understanding human nature and the nature of power the founders knew that the voters could very well put someone in a position who would destroy the very foundations of a democracy from within- like a liar from kenya calling himself a moderate. and tyrants have for eons also arose from the ranks of the armed forces and taken over countries. the founders did not have the luxury of sitting in their ivory tower or toddling off to europe for candy ass cocktail parties- they were framing something that had never existed before. without the right of the citizens to arm there would not be a country called america from the atlantic to the pacific. lucky for us they weren’t self absorbed pointy headed unelected political hacks for life like Ice Ice Creamy. lucky for us the founders actually believed in the principles of the bill of rights. and freedom. lucky for us they distrusted the State because they knew the beyers would emerge trying to reinstitute an absolute ruling class.

    the citizens ARE the state , you black robed tool. this is the crux of the problem- beyers thinking is representative of a liberal mindset that has basically been want to usurp the powers of the people and set itself up to rule them tyrannically for their own good- the bill of rights is therefore granted by the omnipotent State, not god, not a limit on government as it was clearly intended by the framers. and it may take away these rights or define them at will for the good of the State over the people. that is not a democracy. it is the definition of tyranny . that is not the constitution IceIceCreamy is suppose to ‘ interpret’. utterances like this should be grounds for impeachment of a sitting supreme court judge. if you are unwilling to uphold the bill of rights and cannot properly understand it as defining limitations on government, ie the inalienable rights of the citizens, in particular you should never be put on the bench. aren’t you in fact violating your oath to uphold the constitution , especially odious in a judge solely concerned with the constitution? term limits and reviews for supreme court justices need to be put into law.

    “Firearms stand next in importance to the constitution itself. They are the American people’s liberty teeth and keystone under independence … from the hour the Pilgrims landed to the present day, events, occurences and tendencies prove that to ensure peace security and happiness, the rifle and pistol are equally indispensable … the very atmosphere of firearms anywhere restrains evil interference — they deserve a place of honor with all that’s good.”
    George Washington

    “And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; … ” Samuel Adams

    “No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government” thomas jefferson, jefferson papers.

    “[The] governor [is] constitutionally the commander of the militia of the State, that is to say, of every man in it able to bear arms.” –Thomas Jefferson to A. L. C. Destutt de Tracy, 1811.

    “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.”
    George Mason Co-author of the Second Amendment during Virginia’s Convention to Ratify the Constitution, 1788

    “The best we can hope for concerning the people at large is that they be properly armed.” alexander hamilton, the federalist papers.

    “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it or their revolutionary right to dismember it or overthrow it.” abraham lincoln.

    “Today, we need a nation of Minutemen, citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.” john f. kennedy.

    “A militia, when properly formed, are in fact the people themselves … and include all men capable of bearing arms.” Senator Richard Henry Lee, 1788

    “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.” patrick henry

    “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficient… The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” Supreme Court Justice Louis Brandeis

  7. varmint says:

    George Mason: “I ask you sir, what is the Militia? It is the whole people, with the exception of a few public officials.” Back then someone who was a Judge, or who was a care taker over slaves, or in charge of running a ferry for instance was exempt from a call for the Militia.

    Also notice that Amendments 1 through 9, the original ones, are “People, Rights” Amendments. Number 10 was capping it off and it isn’t “Rights” It’s “States, Powers.”

    Two categories of Militia existed. The formal Militias that might meet regularly and might even have local uniform requirements, and the whole people, the informal militia, men of military age who were expected to be armed.

    There was a time when a man who showed up at Church Meeting without weapons could be fined for it.

  8. Los2000 says:

    It is better to be judged by tweleve, than to be carried by six.

    I’m done arguing with the left regarding guns. Bryer can go to hell.

  9. jimburns says:

    I’m forced to acknowledge that I can’t simply dismiss that preamble, “A well regulated Militia, being necessary to the security of a free State…”, upon which a vital portion of the debate seems to hinge. Why didn’t the Framers simply write, “The right of the people to keep and bear Arms, shall not be infringed” period?

    But THEY DID. And you /should/ “dismiss” the opening clause (it’s not accurate to term it a “preamble,” it is part of the complete sentence) if it causes you to miss the overall intended point. So, by your words, you /are/ misinterpreting the amendment which, at it’s core, says exactly that, “…the Right of the people… shall not be infringed.”

    The grammatical constructs involved in the 2nd are not in common use today. But as a simply analogy, consider,

    The Sun, having set, the King adjourned the festivities for the day.

    Does the setting Sun have anything to do with the ultimate authority of the King to adjourn the festivities? Can the King adjourn the festivities other than when the Sun sets, if he shall please?

    Of course he can. The setting Sun provided one context, and the current context that /might/ aid in the current consideration of the King to adjourn the festivities for the day, but conceptutally, SAYS NOTHING nor in any way LIMITS the powers of the King and his ability to officiate the day’s festivities.

    This is the clause with regard to the Militia and in no way limits, constrains, or should cause to be misinterpreted, the core English sentence, subject-verb-object, The RIGHTS shall NOT BE… INFRINGED.

    Period.

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