Justice Breyer’s Sharp Aim

[wikileaksfan]

Justice Breyer’s Sharp Aim
By PAULINE MAIER
Published: December 21, 2010

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.”

Indeed, contrary to what many Second-Amendment absolutists suggest, Justice Antonin Scalia’s majority opinion in Heller did not preclude all regulations of firearms, only those that amounted to a prohibition on ownership or prevented their use in the home for self-defense.

However, Justice Breyer went further in his Fox interview. He said that James Madison wrote the Second Amendment because some Americans feared that Congress would call up the state militias and nationalize them. Madison proposed the amendment, the justice said, to appease these skeptics and to “get this document ratified.” Justice Breyer continued: “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”


<http://www.nytimes.com/2010/12/22/opinion/22maier.html?_r=2&hp>

[PavePusher]

1. "some Americans feared that Congress would call up the state militias and nationalize them"

And they were right.

Breyer also thinks that it's O.K. to forceably give private prorerty to corperations.

Fuck him, the horse he rode in on, the dog that followed him, and the fleas on all three.

[east texas lib]

2. Roger that!

[safeinOhio]

6. Much better than

Roberts, Scalia and Thomas. Citizens United.

[sharesunited]

3. Heller was a willful misinterpretation of the 2nd.

The so-called RKBA has about as much relevance to today's America as the three-fifths compromise.

[ProgressiveProfessor]

4. Back on your anti union soapbox I see. Why do you so oppose rights for

working men and women

[sharesunited]

5. The right to have bullets enter our bodies? What an absurd thing to defend.

[Straw Man]

12. Bullets in our bodies?

Please point to where anyone other than yourself has ever referred to such a right, much less defended it.

Perhaps you're confusing it with the right to be slain by home invaders, holdup men, stalkers, or ex-spouses, with or without guns. What an absurd thing to defend.

[slackmaster]

8. The 3/5 compromise was ended by amending the Constitution

The Thirteenth Amendment.

Feel free to try to do the same to repeal the Second Amendment.

[sharesunited]

17. Amending isn't the way. Correctly interpreting is the way.

Once again, the federal courts will need to bring the People kicking and screaming into modernity.

[Straw Man]

18. Kicking and screaming?

You're scaring me again.

I assume you're talking about rulings that extended and upheld rights, but (surprise, surprise) you're on the wrong side of the issue this time.

[Name removed]

20. Deleted message

Message removed by moderator. Click here to review the message board rules.

[PavePusher]

19. Pressing ahead with the NewSpeak, eh?

That's about as dishonest as you can get.

[slackmaster]

32. This country sure went to a lot of unnessary trouble to eliminate involuntary servitude

We could have just had the Supreme Court interpret "3/5" as "1", and "slave" as "at-will employee".

[beevul]

35. The problem with correct interpretation, is that it does not favor your view.

If modernity means ignoring the plain meaning of the second amendment - a restriction which forbids government from exercising a power which it was never granted (the truth of which is expressly confirmed if one reads the preamble to the bill of rights)...


You can have it.

On the other hand...

"the federal courts will need to bring the People kicking and screaming into modernity"

Has it occured to you that the federal courts ARE "bringing people kicking and screaming into modernity" on the gun issue, and that its you and yours - the gun haters, the civilian disarmament crowd, the anti gunners - which are doing the kicking and screaming?


Surely I do not need to post links to examples of some of those engaged in "kicking and screaming", and your capacity for self examination is large enough for you to recognise that your one of them.

[oneshooter]

36. Had any luck with getting the Mexican and Canadian armys to help you? n/t

[Straw Man]

11. Willful misinterpretation?

Semantically, this suggests that they (the Heller majority) knew they were wrong but went ahead and did it anyway. Why, pray tell, do you suppose they did that? Sheer perversity? To subvert the Republic? A cry for help?

No doubt you'd love to see the Second Amendment repealed, but absent such a repeal, the RKBA is absolutely relevant to today's America. As for the three-fifths compromise, perhaps you hadn't noticed, but slavery has been abolished.

Is there any room in your worldview for the concept that there are beliefs and principles other than your own?

[sharesunited]

21. Oh sure. The Citizens United case is a great example.

Freedom of speech means dollars equal speech and corporations equal persons with a right to speak and be heard.

Right there is a belief and principle other than my own.

[Straw Man]

23. Citizens United

And you have room in your worldview for that one? You find that decision more palatable than Heller?

[sharesunited]

24. WTF man. They are equally repugnant.

And eminate from the equally repugnant source.

[Straw Man]

25. Emanations

The Heller and McDonald decisions affirm an individual right. The Citizens United decision hands even more power to the richest and most powerful segments of society.

Can you understand how a person could be in favor of one and not the other? It's that worldview thing again.

[sharesunited]

26. Why oh why do you suppose the same conservative majority favors the same way of life?

Damn. Who shoots whom in America? Whose demise of flesh and blood humanity recommends the existence of the fictional person as preeminent?

[Straw Man]

27. Who shoots whom?

Whose demise of flesh and blood humanity recommends the existence of the fictional person as preeminent?

I have no idea what that is supposed to mean. Could you rephrase that for the hyperbole-impaired?

[Name removed]

28. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Straw Man]

29. OK, now you're just being offensive ...

... and still not making any cogent point. I'll try to paraphrase, and you tell me if I've got it: The conservatives on the Supreme Court want us all to kill each other so that corporations can thrive?

[Katya Mullethov]

31. Are we

Back on our "non-English speaking" kick again ? It is so hard to keep up with such a ravenous memory hole at work .

[Euromutt]

7. See also earlier thread

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x352142

Same title and everything. Try using Ctrl + F before you post next time.

[Name removed]

9. Deleted message

Message removed by moderator. Click here to review the message board rules.

[pipoman]

10. What, if I may ask, isn't liberal or progressive

about the most liberal interpretation of an enumerated civil right? Any enumerated civil right?

I contend that it is the wish for a conservative interpretation or, as is sometimes found hereabouts including in this very thread, repeal of an enumerated civil right that is consistent with a conservative interpretation of the entire bill of rights such as might be found on freeper sites.

Oh, and exactly how does the belief that corporations deserve the same civil rights as human beings fit the contentions that this justice is a picture of liberalism?

[jazzhound]

30. POW!!! (No -- not the sound of a gunshot)

I contend that it is the wish for a conservative interpretation or, as is sometimes found hereabouts including in this very thread, repeal of an enumerated civil right that is consistent with a conservative interpretation of the entire bill of rights such as might be found on freeper sites.

The sound of a large hammer striking a nail squarely and forcefully on the head.

[PavePusher]

14. So, you support his views on the Second Amendment and private property?

hmmmm.....

[DonP]

33. "Dare" - Now that's funny

Who the hell made you the arbiter of what is and isn't appropriate for a liberal/progressive to believe in.

Let's hear your interpretation of the 2nd amendment oh wise and all knowing sage?

[lawodevolution]

13. In the case mentioned it was decided the 2A is the right of the individual to keep and bear arms

And I honestly don't care about whatone the losers like Breyer had to say.

[jody]

15. Read dissents by Stevens and Breyer. Both recognize individual RKBA is an inalienable/unalienable

right but disagreed with the majority on the Court's imposed question "Whether the following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

The four dissenting justices said the 2nd did not protect an individual RKBA as an enumerated right but they did not discuss whether an individual RKBA was protected by the 9th Amendment as an unenumerated right which it logically would be after the four dissenting justices accepted the declarations of PA (1776) and VT (1777) in their constitutions.

In 1776 and 1777, an inalienable/unalienable right could not be given away by a piece of paper even our Constitution and as SCOTUS said,

c. Meaning of the Operative Clause. Putting all ofthese textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “{t}his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”

Individual RKBA is protected by the 2nd explicitly per 5 justices and by the 9th implicitly per 4 justices.

[Katya Mullethov]

16. He is quite the charmer

In a Frank Burns sorta way .

[eallen]

22. I'm leery of any interpretation that doesn't look back as far as the English Bill of Rights.

The English Bill of Rights, of 1689, recognized an individual's right to "have arms for their defence suitable to their conditions and as allowed by law." Providing they were Protestant. Despite the conditions, it clearly was an individual right, and included the notion of self-defense. The framers of the Constitution were not that far removed from the Glorious Revolution, and quite a few provisions from the English Bill of Rights were strengthened in the US Constitution and Bill of Rights, including the rights of speech, redress, and jury trial.

Any attempt to erase the individual right aspect of the 2nd amendment necessarily ignores this antecedent. Which, as a matter of history, is quite suspicious.

:hippie:

[SteveM]

34. Please note that the scholar who popularized the "militia clause"...

Laurence Tribe has since said (1999) that the Second Amendment does indeed recognize an individual right to keep and bear arms.

As well, Studies surveying academic opinion on the meaning of the Second have shown that "...more of the historians ..." see the Second as recognizing an individual right. (Reference made in "The Great American Gun Debate" by Kates and Kleck.)