Listening to Stephen Breyer on Fox News Sunday

[Tennessee Gentleman]

Here is the video link: http://video.foxnews.com/v/4456314/r...ylist_id=87937

I was really struck by how somebody so smart and educated could be so off on their history. I am wondering what he has read that would lead to a statement like:

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.

And then says:

"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."

I am wondering what history he is reading. Not any I have seen unless it is the discredited work of Michael Bellisiles.

Of course the states were worried about their militias and that the newly created Congress could disarm them if they choose to but the right was clearly aimed at the people as well as the state militias. Scalia and the majority point that out very well.

Finally, here is the one that really threw me:

If we're going to decide everything on the basis of history -- by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns?" he asked. "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."

What does being a sportsman have to do with the Second Amendment? If as Justice Breyer stated earlier the Founders could not foresee the Internet then how did they foresee IPDA or IPSC or trap and skeet ranges?

Wow, reading stuff like that is scary. I hope Scalia and Kennedy hang on and Breyer leaves before them. :barf:

[JWT]

The constitution, not history (or a justices view of history) dictate the rule of the land. Historians aren't supposed have a vote in the courts.

[Musketeer]

He came right out and said you need to reinterpret the COTUS to what is needed for today.

Do you think he he would accept reinterpreting his lifetime appointment to an era where the average lifespan is much longer than when the rule was written?

[Standing Wolf]

I am wondering what history he is reading. Not any I have seen unless it is the discredited work of Michael Bellisiles.

It hasn't been discredited with leftist extremists.

[jmortimer]

+1 ^ President clinton's gift to the U.S. - Pray that the four great Justices Scalia, Roberts, Thomas, and Alito are healthy and stay on the SCOTUS for a long, long time and pray that Justice Kennedy makes it to November 2012.

[gc70]

"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."

I wonder how many other rights Breyer thinks should be subject to suspension if a person could go elsewhere to enjoy those rights?

While it will not happen, this is the type of statement that should be grounds for impeachment.

[csmsss]

Stephen Breyer is not a constitutional scholar - he is a taffy puller. His theorem is that the Bill of Rights was concocted in order to deceive the American populace from discerning the ostensible goal of the framers of the Constitution (ie a strong central government of only marginal accountability to the body politic and for whom individual liberties are malleable and redefinable) is supported by no legitimate study of the Constitution's construction and passage. Of course, he doesn't distinguish between the 2A and every other amendment in his staggeringly inapt analysis - was the 2A the ONLY amendment or Constitutional clause the Founding Fathers didn't really mean? Breyer would have you believe so.

This is, of course, based on his permanent allegiance to goal-based Constitutional interpretation. Define the political goal, then work backwards through the Constitution and previous judicial review until some ludicrously rationalized linkage can be obtained. Hideous. Absolutely hideous.

[Tom Servo]

I wonder how many other rights Breyer thinks should be subject to suspension if a person could go elsewhere to enjoy those rights?

That was my first thought when I saw it. So, it's okay for me to petition for a redress of grievances in Peoria, but not in Austin? That's not how things work, and he knows it.

The difference is that he doesn't believe the 2nd Amendment apply to individuals. He tried re-arguing that in his McDonald opinion. I guess he figures that, if he keeps at it long enough, the 2nd Amendment will go back to its pre-Heller contours.

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

I'd really like to see a source for that.

[Erik]

Familiarize yourself with his line of reasoning, it will be the logic the progressives use to assault the 2a for years to come.

[Buzzcook]

Given how the supreme court is stacked with rightist ideologues, Breyer's opinion isn't very important.

[Musketeer]

Heller was 5-4 and I think in a couple cases you are confusing rightist ideologue with constitutionalist (which technically all nine should be).

[jmortimer]

"Given how the supreme court is stacked with rightist ideologues, Breyer's opinion isn't very important."You need to do some reading. There are four nut-job liberal kooks: Breyer, Ginsberg, Sotomayor, and Kagan and Kennedy as the swing vote and four outstanding judges who actually respect the Constitution: Scalia, Thomas, Roberts, and Alito. One of the latest "ideas" of the nut-jobs is to use "foreign" law as authority over our citizens. I guess if you don't care about the Second Amendment or most aything else that made this Country great the nut-jobs are just dandy.

[Glenn E. Meyer]

Let's tone done the rightist and liberal nut job name calling. Or we close this.

Speak to the validity of the points, instead.

[Pahoo]

I was really struck by how somebody so smart and educated could be so off on their history. I am wondering what he has read that would lead to a statement like:

Well, he is well read and educated but that really does't matter because of his agenda, going into this subject. A person could bless or damn a subject, and still read the same passage. This man would clearly legislate from the bench. Why is it that folks like him have no problem with what the rest of the Constitution says but sees the need to interpret the 2nd. Amendment, for us?

The older I get, the easier it becomes for me to read these people. ....


Be Safe !!!

[zukiphile]

I will give Breyer his due: He is forthright about his gooey, freewheeling idea of what a supreme court justice is supposed to do. He does less violence to constitutional discourse than a pretentious or deliberate misreading of the COTUS does.

Absent from his responses to the substantive question about the 2d Am posed by Wallace was "The Constitution says...". That says quite a bit about his method of constitutional analysis. Contrast this with Scalia's interview with Leslie Stahl on 60 Minutes.

Some years ago on CSPAN, Breyer and Scalia appeared together speaking to some students. Breyer went on about his outside interests, legal thought in other systems and different ideas of justice. Scalia's response: That's great, but leave it at home when you come to work.

Indeed.

[Idahoser]

I saw a that interview. I was absolutely stunned that the liberals allowed him to make such an utter fool of himself on the enemy network.

[Tom Servo]

I will give Breyer his due: He is forthright about his gooey, freewheeling idea of what a supreme court justice is supposed to do

The problem is, there are people on the other side of the fence who accuse originalist Justices of the same thing.

Of course, Breyer's got his "interest balancing" way of doing things, and he'll dig for whatever tenuous justification he can find to justify it. This was the guy who had to dig for a 19th century maritime case to find precedent for the regulation of the 2nd Amendment in his Heller dissent.

I'd still love to see some proof to back up his assertions about Madison's intentions regarding the 2nd Amendment, considering that they run directly contrary to Federalist 46.

[Kreyzhorse]

Given how the supreme court is stacked with rightist ideologues, Breyer's opinion isn't very important.

As pointed out, Heller was 5 - 4. I wouldn't exactly call the SCOTUS "stacked" in our favor.

[kraigwy]

Apparently Mr Breyer doesn't know History (Madison) as well as he thinks:

"The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."James Madison, The Federalist #46.

[ofitg]

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823. ME 15:449

[gc70]

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823. ME 15:449

Too bad someone did not give similar sage instructions to Breyer.

[Wheeler1]

Let me see if I understand this correctly.

1. Based on the dictionary of the day, the word 'regulated' meant 'controlled'.

2. The colonists were afraid of a standing army and their power.

Now lets do a bit of intelligent comparison of words and meanings by making analogies.

Standing army = let's say..... 'Gangs' (potential for violence and mahem).

Standing army = permanent government backed 'militia'.

National Guard = Some fools would call this 'the militia' of today.

The 'People' = every citizen in the colonies (todays populace)

A 'Free State' = Well, I believe this is self explanatory.

Soooooooooooo, Let's try this. I'd really like feedback.

Just for 'kicks and grins', lets suppose the liberals are correct when they say the 'militia' is the National Guard 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."

Translates to:

"A WELL CONTROLLED standing army/gangs/National Guard made up of potentially violent men, being necessary to the security of a free state, the right of the American population to keep and bear arms in order to keep the standing army/gangs/National Guard well controlled, shall not be infringed."

While that may be a stretch to some, I ask you, is there a better way to insure that a standing army/gangs/National Guard (or any other despotic individual or group of individuals) is 'WELL CONTROLLED' than that "the right of the people (that's you, me and every other American) to keep and bear arms, SHALL NOT be infringed"?

[Wheeler1]

A further note:

My family has had 10 members serve in military careers of 20 years or more. We were in the Marine Corps, Army and Air Force. We served in WWI, WWII, Korea, Viet Nam, Grenada, Panama, the Gulf wars in Kuwait, Iraq and now Afghanistan. Family members have been wounded and been awarded decorations for valor.

We are like many hundreds of thousands, nay millions, of Americans who served our country, and sacrificed, willingly.

We fought for America and vowed to 'Protect and Defend the Constitution of the United States of America, against ALL enemies, both foreign AND domestic".

There is only ONE America, ONE Constitution. God help us when we start to deny that.

My oath was/is just that, an OATH! It is for life.

After 22 years in the U.S. Marine Corps and 15 years in civilian law enforcement (sheriffs deputy), I think I'm entitled to my opinion.

Semper Fi,

[Vince302]

Liberal all believe the Constitution is a "green" document to be revised as need to reflect the societal morays. Do not be surprised by anything these people say and vote them out of power whenever possible.

Vince

[Webleymkv]

The whole "living document" theory really strikes me as an attempt by a radical minority to impose their will over that of the rest of the people. You see, the founders did indeed build into the Constitution a way to update it to the changing times as necessary: it's called the Amendment process and it has been used seventeen times since the Constitution was ratified.

If the Second Amendment really was an outdated historical relic as the anti's claim, then the proper thing to do would be to amend the Constitution and repeal it as was done to the Eighteenth Amendment by the Twenty-First. Because they are a radical minority, however, the anti's have never had, and probably never will have, enough support to repeal the Second Amendment so they try to cook up a "living document" scheme. It's one of the oldest tricks in the book really: if you can't win playing by the rules, then try to change the rules.