After writing my most recent article, I decide to condense and rephrase it in the form of a letter addressed to Justice Stephen Breyer. This is what will be going out in tomorrows mail the the Supreme Court c/o Justice Stephen Breyer…
Recently I was the recipient of an e-mail containing a video of your appearance on Fox News Sunday, with Chris Wallace. Our nation’s Constitution, and the Bill of Rights, are subjects that I find fascinating.
I do not have a degree in law, nor a college degree of any kind for that matter. However, I have spent a great deal of time studying the writings of our nation’s founders. Therefore, some of the comments you made in your interview came as a shock to me, particularly in regards to the Second Amendment.
If I may, I would like to comment upon the things that perplex me, and, at the same time, offer up some quotes that appear to contradict what you said.
As I said, I have no legal degree, but this subject is of great interest to me. Therefore, I would be honored if you would take the time to consider my point of view, and possibly respond to my comments.
When the subject of the Second Amendment came up, you stated that it was a matter of what the framers intended. You then went on to say that the right to keep and bear arms is directly tied to the militia clause.
You said, and I quote, “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.”
You did not answer your own question about what constitutes the militia. You sidestepped that issue by going on to say that Madison was worried about the anti-Federalists, and their belief that Congress would try to nationalize the militia.
Now that may have been a valid concern for Madison, however it does not answer the question, what constitutes the militia. And since you already stated it was important to understand what the framers intended, allow me to provide a quote from framer George Mason. Mason is quoted as saying, “I ask, sir, what is the militia? It is the whole people except for a few public officials.”
In fact, the idea that the militia is comprised of the whole body of the people is still part of federal law. United States Code, Section 311 states that the militia is composed of;
(a) …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…
Section 311 goes on to say that there are two classes of militia;
(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
Twice during your interview you made mention of the historians. To whom do you refer when you mention the historians? Do you mean the people who write about history, or those who made history?
I agree wholeheartedly that we should heed the words of those who framed our Constitution. In fact, James Madison himself stated, “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”
Yet, at the beginning of the interview, Chris Wallace displayed a quote from your book, “The Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”
The idea of flexibility in the application of Constitutional values is something that was shared by Alexander Hamilton, who stated, “Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things.”
However, even Hamilton himself wrote, in Federalist No. 81, “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, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”
It, therefore, appears that the primary issue here is whether or not the right to keep and bear arms is an individual right, or a right directly tied to an individuals service in the militia.
However, at one time Thomas Jefferson is quoted as saying, “no free man shall ever be debarred the use of arms…” He makes no mention of the right to keep and bear being tied to service in the militia.
Also, Samuel Adams at one time called for an amendment which would ban any law that would “to prevent the people of the United States who are peaceable citizens from keeping their own arms…” Again, no mention is made of that right being tied to service in the militia.
Also to make reference to another historical document, during the Virginia debates over the adoption of the Constitution, several key points were made.
The opening statements of that document state, “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:”
Notice that it says that these are unalienable rights of the people, referring to them as individuals.
Then, it goes on to say, “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.”
Again the premise is reaffirmed that these are natural rights, and that among them are the right to acquire, possess, and PROTECT property. It must be assumed that for a man to protect his property he would bear arms in its defense.
Next, in section 3d, we read, “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.”
And therein lies the core purpose of the militia, the ability of citizen soldiers to protect and defend themselves, not only from attacks from other countries, but from arbitrary power and oppression by their own government.
We must remember that when the militia gathered at Lexington and Concord on April 19, 1775, that they were fighting what they perceived to be oppression from their own government, the British.
To quote Noah Webster, “The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.”
And the last reference I wish to discuss from the Virginia debates states, “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…”
If you will recall, in your interview you made certain we noticed the phrasing of the Second Amendment, with the militia clause being primary, and the right of the people to keep and bear arms being secondary to the militia clause.
However, according to the proposal by the delegates in Virginia, the right of the people to keep and bear arms is first, prior to the militia clause.
From my perspective, it seems crystal clear that our founders intended that the right to keep and bear arms was an individual right, as well as a responsibility of all males who were members of the militia.
I do not mean to be argumentative, nor do I wish to show you any disrespect for your position. I am merely trying to understand your perspective on the Second Amendment, when all the data I have read clearly shows that my right to keep and bear arms is an individual right.
I understand that with your position as a Supreme Court Justice, you are a very busy man. But I would be both honored, and grateful, if you might find the time to clarify this matter for me.