Justice Breyer's Sharp Aim

[mgc1961]

WHILE the federal judge who ruled that portions of the health care reform law were unconstitutional made the big headlines, another important constitutional debate was reopened last week by Justice Stephen Breyer during an interview on Fox. He argued that the historical record — in particular, James Madison’s thoughts and writings — supports the dissenters in the 2008 case District of Columbia v. Heller, in which the Supreme Court said the Second Amendment established an individual right to bear arms, and on that basis struck down a District of Columbia ban on handguns.

Conservatives were quick to accuse Justice Breyer of pursuing an activist judicial agenda. Their charges are misguided.

The dissents — written by Justices Breyer and John Paul Stevens and joined by Justices David Souter and Ruth Bader Ginsburg — held that the Second Amendment affirms the right of the people to “keep and bear arms” as part of a “well-regulated militia,” but not an absolute individual right to own a gun. And if there is no constitutional right at issue, gun regulation should be set by elected legislatures and local governments, not the courts. That’s not “activist.”

More at http://www.nytimes.com/2010/12/22/opinion/22maier.html?hp=&adxnnl=1&adxnnlx=1293026443-EOynG7diUShd7LvE8gLOrQ

[Euromutt]

1. Been there, done that

See this earlier thread: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x350798

[FBaggins]

2. You can't "reopen a constitutional debate"

simply by having the court minority restate the position that lost.

And if there is no constitutional right at issue, gun regulation should be set by elected legislatures and local governments, not the courts. That’s not “activist.”

True... but the "activist" portion is the insane notion that "there is no constitutional right at issue". it is not an "absolute" right, but neither are speech, etc.

[Surf Fishing Guru]

3. Breyer is a contitutional moron.

In order to embrace Breyer's interpretation you must believe the Bill of Rights grants the citizenry our rights . . . That the extent or scope of the right to arms extends to only that what the framers wished to permit us to have . . .

That is a Constitutionally repugnant theory and stands in direct opposition to the founding principles of Locke and Sidney, volumes of the founder's writings and a landslide of Supreme Court decisions over centuries that unequivocally state our rights are deemed inherent and any listing of them are merely exceptions to powers never granted.

Breyer needs to understand that the only thing the 2nd Amendment does is to redundantly forbid the federal government* the exercise of powers never granted to it.

*State governments as well, see McDonald.

[Callisto32]

4. Why he is wrong, and knows it.

First, a corporation cannot have rights, only powers (edit) and privileges. Rights are reserved to natural persons.

Second:

The Constitution. There are some basic rules of statutory interpretation, and the Constitution is a statute:

You start with the plain language of the statute. "the right of the people to keep and bear arms shall not be infringed." I don't think you need to have the plain meaning explained to you.

Statutes are interpreted as a whole, and words in statutes are given consistent definitions. Everywhere else in the constitution, the phrase "the people" refers to individual rights. There is no reason to believe, absent clear language to the contrary, that a different definition is used in the Second Amendment than anywhere else. Also, the people cannot mean a corporate right of the state due to the following language: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This language indicates that the people are distinct entities from either the federal or state governments, thus "the people" in the Second Amendment must mean the individual people because of the rule that words in statutes are given consistent meanings throughout.

Therefore, you are wrong when you say that the view that the Second Amendment preserves an individual right to keep and bear arms is "insurrectionist and extreme" in the way you seem to mean. It may be insurrectionist, given that the people that wrote it were....GASP....insurrectionists. It may be extreme, but only compared with the authoritarian bent in much of the world. But to use those words to suggest that the NRA's view of the document is somehow incorrect is absurd on its face, given the language of the Constitution.


Edit: This is a copy of something I posted elsewhere, and the last paragraph refers to a different post, but the principles still apply.

[benEzra]

5. Breyer is as wrong on this as he was on the Kelo decision. (n/t)

[PavePusher]

6. Frankly, he can't retire a day too soon. n/t