Apparently Justice Stephen Breyer Isn’t Up On His History

The other day I received an e-mail containing a link to a video of Supreme Court Justice Stephen Breyer on FOX News Sunday. Justice Breyer was explaining his judicial philosophy, as discussed in his book, Making Democracy Work. It was when Justice Breyer began discussing his interpretation of the 2nd Amendment that my blood began to boil.

So, what I am going to do is to provide some quotes from the FOX News interview with Justice Breyer, after which I will explain my point of view, complete with data to back up my thoughts. Then I will leave it up to you to decide whether the Justice does not know what the hell he is talking about, and whether the country would be better off if he were judging contestants on American Idol, instead of judging how to interpret the Constitution and Bill of Rights.

It was during the first portion of the interview that the host, Chris Wallace, brought up the issue of gun control. Justice Breyer gave a rather lengthy response, and this is what he said, verbatim, “Yes, yes, that’s a wonderful example. Because of course it’s not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase “A well regulated militia being necessary to the security of a free state [pause] the right of the people to keep and bear arms shall not be infringed. What does that mean the militia? The historians told us, and the dissenters thought they were right, that what that meant, was that James Madison, thinking, I‘ve got to get this document ratified, was worried about opponents who would think that Congress would call up state militias and nationalize them. That can‘t happen said Madison, and therefore he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

Then Chris Wallace said, “But, the historians may have been with you but, not most of the Justices…” to which Justice Breyer interrupted by saying, “Ah, but if your interested in history, and in history this one was important, than I think you do have to pay attention.”

So, the Justice is keen on what the historians say. Well, so am I, and the views of Justice Breyer don’t match up with what I have read. Before I begin discussing the Second Amendment itself, I would like to go back in history to a time when our founders had not even been born yet.

Going back to 1645, Massachusetts had passed a statute that stated, in part, “That all inhabitants, as well as seamen as others, are to have armes in their houses fit for service, with powder, bullets, match, as other soldiers, & the fishermen, ship carpenters, (the deacons are hereby exempted from watches & wars,) & others, not exempted by lawe, shall watch or provide a sufficient man in their roome, & to traine twice a year, according to the order.”

Most of the other colonies had similar laws and statutes requiring that all males, above the age of 16, have arms, and ammunition, readily available and in good condition, as part of their obligation to serve in the militias.

While this may tend to support the argument that only members of the militia are entitled to keep and bear arms, the writings of many of our founders made it quite clear that this was not the case.

In his Common Place Book, Thomas Jefferson wrote, “Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

Jefferson makes no mention of arms in conjunction with service in the militia. He merely states that arms can, and should be used by individuals to protect and defend themselves against crime.
In his article Thoughts on Defensive War, Thomas Paine wrote, “[A]rms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them.”

Finally, in the Debates of the Massachusetts Convention of 1788, Samuel Adams stated, “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 peacable citizens, from keeping their own arms…”

I could provide many more quotes, but I think the point was made, that the right of the people to keep and bear arms was not entirely tied to their being members of a militia.

However, let us for a moment, take a look at what makes up a militia. Many are under the misconception that our current National Guard is, in fact, our militia. Not true! Staunch anti-federalist George Mason is quoted as saying, “I ask, sir, what is the militia? It is the whole people except for a few public officials.”

You may be saying that what Mason said, applied to the time when our Constitution was written, and no longer applies in today’s world. Again, you would be wrong.

The United States Code is a compilation of all the permanent federal laws of the United States. The US Code, Section 311, covers the militia, it’s composition, and it’s classes.

US law states the following about the militia:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are –
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

The only persons who are exempt from militia service are listed in USC 10, section 313, and they are as follows:

(a) The following persons are exempt from militia duty:
(1) The Vice President.
(2) The judicial and executive officers of the United States, the several States, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(3) Members of the armed forces, except members who are not on active duty.
(4) Customhouse clerks.
(5) Persons employed by the United States in the transmission of mail.
(6) Workmen employed in armories, arsenals, and naval shipyards of the United States.
(7) Pilots on navigable waters.
(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.
(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.

So, by now I believe that I have proved that the right to keep and bear arms is not directly tied to service in the militia, and a the same time proving that it is the law that all able bodied males above the age of 17 be members of the unorganized militia. Therefore, it is not only your right, but your obligation to be armed and prepared.

Some readers may still be confused as to the purpose of a militia. Let me try to clarify that for those who still are unsure as to the purpose of a militia. Thomas Jefferson writes, “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.”

When the British still ruled the colonies, it was the militia who faced off with the Redcoats at Lexington and Concord. The militia were not shooting at foreign invaders, or criminal elements in society, but the armed forces of what was, at that time, their existing government. It would be akin to members of a militia group today firing upon US Army troops over perceived infringements upon their rights.

You see, as Jefferson stated, “The beauty of the Second Amendment is that it will not be needed until they try to take it.” It is our right to be armed, whether that right be tied to service in a militia, or for use protecting our homes and property. When anyone, be it a state government, federal government, or a judge, rules that our right to keep and bear arms is subject to limitations, or restricted, it is an attack upon the right in its entirety. Need I remind you that it was not until the British decided to disarm the colonists at Lexington and Concord, that that the first shots of the Revolutionary War were fired?

To continue now with what Justice Breyer said about the Second Amendment, his comments make is seem as though he thinks James Madison just up an wrote these amendments on the spur of the moment, just so he could get the Constitution ratified.

Madison was originally opposed to the idea of a Bill of Rights, as were many other founders. Alexander Hamilton, writing in Federalist No. 84, states, “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? ”

Madison himself, when proposing the final list of amendments to be considered for this bill of rights, stated, “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.”

Yet the fact was that without some sort of safeguards against encroachments upon the rights of the people, some states would not have agreed to ratify the Constitution. Therefore, Madison was forced to go forward with the process of coming up with a list of rights to be voted upon. This alone was to be no easy task, as each state had their own list of what rights they considered to be of great importance.

During the Debates in the Convention of the Commonwealth of Virginia on the Adoption of the Federal Constitution, the delegates attending came up with some thought provoking considerations.

First of all, they stated, “That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:”

This is strikingly similar to the Preamble to the finalized Bill of Rights, which states, “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:”

To continue, the delegates from Virginia next stated, “That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”

This reaffirms the sentiments expressed in the Declaration of Independence, which said that our rights come from our Creator, or as expressed in this case, natural rights. They go on by saying that men cannot deprive other men, or posterity of these rights.

The third stated comment was, “That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.”

It was believed by the delegates from Virginia that it was a natural right of the people to resist arbitrary and oppressive power wielded by government. In other words, these Virginians felt it was their right to disobey any laws they felt were oppressive, and quite possibly commit acts of civil disobedience as a means of expressing their dislike for perceived oppression.

Finally, and this is the big one, the Virginia delegates proposed the following regarding the right of the people to keep and bear arms, “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 defence of a free state…”

Now, notice the phrasing in comparison to Second Amendment as it exists today, “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.”

In the wording proposed by Virginia, the militia clause is secondary to the right of the people to keep and bear arms as opposed to the Second Amendment as ratified. This only affirms the belief that the two clauses of the Second Amendment are independent of each other, that the right to keep and bear arms is an individual right, as well as a right that is tied to service in the militia.

The idea that Madison wrote the Second Amendment, and the Bill of Rights solely to appease those who opposed the Constitution is absurd. Madison respected these rights which the first ten amendments to our Constitution list. They do not grant them, they only make it known that these rights already existed, prior to any system of government.

As the Preamble to the Bill of Rights states, these amendments were further declaratory and restrictive clauses. Notice the terminology of these amendments, shall make no law; shall not be infringed; and shall not be violated.

It is clear, to anyone with a rudimentary understanding of the English language, that these rights were off limits from governmental interference. That also was to include judges who would rule upon the spirit of the law, instead of the letter of the law.

Even Alexander Hamilton, who was a proponent of big government, and an open interpretation of many of the Constitutional clauses, had this to say about the courts, “In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution…”

So, it appears that Justice Stephen Breyer is basing his decisions upon his own personal views, and not those which are backed up by the very history he claims as his defense. As Jefferson said, “The beauty of the Second Amendment is that it will not be needed until they try to take it.” If Justice Breyer is such a big fan of history, maybe he ought to re-read the history books concerning the events which transpired on April 19, 1775 at Lexington and Concord.

This entry was posted in General. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.