by Dave Kopel (from NRA-ILA News)
Will the Second Amendment still protect your rights a few years from now” Perhaps not, for it only survives today by a single vote in a sharply divided U.S. Supreme Court.
In December, Supreme Court Justice Stephen Breyer announced on national television his continuing opposition to a real Second Amendment right. If President Barack Obama has the opportunity to appoint one more Supreme Court justice--and he almost certainly will have the opportunity if he is re-elected in 2012--any meaningful Second Amendment right will be erased from the Constitution.
Having opposed the Heller ruling in 2008, Breyer took the first opportunity available to vote that it be overruled. He did so in a dissenting opinion in McDonald v. Chicago, which was decided in June 2010. That vote to overturn Heller was joined by President Obama’s first Supreme Court appointee, Justice Sonia Sotomayor, and also by Justice Ruth Bader Ginsburg. In a December 2009 speech to the Harvard Club in Washington, D.C., Ginsburg suggested that she hopes one day the Heller dissenters will become the majority, and Heller will be no more.
With anti-gun Justice Elena Kagan replacing the retiring Justice John Paul Stevens, the anti-Second Amendment bloc on the Supreme Court is just one vote away from victory.
Breyer, meanwhile, is intensifying his public relations campaign against the Second Amendment. On Dec. 12, 2010, Breyer appeared on “Fox News Sunday” to promote his new book, “Making Our Democracy Work.”
(The interview video is available at http://video.foxnews.com/v/4456313/justice-stephen-breyer-on-fns.)
Breyer told host Chris Wallace that James Madison, the author of the Second Amendment, had no interest in protecting the right of self-defense. Instead, Breyer said, Madison had been fighting to get the Constitution ratified by the state conventions, and he was “worried about opponents who would think Congress would call up state militias and nationalize them.” So Madison proposed the Second Amendment because he was working on the principle, “I’ve got to get this document ratified.”
“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 continued. “If that was his motive historically, the [Heller] dissenters were right. And I think more of the historians were with us.”
Breyer is correct that there were more than a dozen American historians who filed “friend of the court” briefs in District of Columbia v. Heller and in McDonald v. Chicago, opposing the right to own firearms for self-defense. The problem with their contention is that the historical record directly contradicts those claims. For a good summary of the numerous errors by the history professors on whom Breyer and the other anti-Heller justices relied, see David Young’s excellent article “Why D.C.’s Gun Law Is Unconstitutional” at http://hnn.us/articles/47238.html.
During the state ratification debates on the proposed Constitution, there were, indeed, many concerns raised about the militia powers that would be granted to the new government. Article I, section 8 of the Constitution gives Congress the power to call the militia into federal service in order to “execute the laws of the union, suppress insurrections and repel invasions.” Further, Congress has the power to provide for arming, training and disciplining the militia.
Many people worried that Congress might abuse its militia powers by calling the state militias into federal service, marching them from state to state and thus depriving the states of the protection of the militias. Or, Congress might destroy the militias by neglect or by design--such as by enrolling only a tiny portion of the people into a “select militia” that would be loyal only to the national government, but that would not defend the states.
But here, the argument of Breyer, et al. collapses. To begin with, when Madison introduced the Second Amendment on June 8, 1789, he could not possibly have been thinking, “I’ve got to get this document ratified.” The Constitution had already been ratified by 11 states, two more than the nine required for ratification. Pursuant to the ratified Constitution, George Washington had been elected president of the United States.
In December, Supreme Court Justice Stephen Breyer announced on national television his continuing opposition to a real Second Amendment right. If President Barack Obama has the opportunity to appoint one more Supreme Court justice--and he almost certainly will have the opportunity if he is re-elected in 2012--any meaningful Second Amendment right will be erased from the Constitution.
Having opposed the Heller ruling in 2008, Breyer took the first opportunity available to vote that it be overruled. He did so in a dissenting opinion in McDonald v. Chicago, which was decided in June 2010. That vote to overturn Heller was joined by President Obama’s first Supreme Court appointee, Justice Sonia Sotomayor, and also by Justice Ruth Bader Ginsburg. In a December 2009 speech to the Harvard Club in Washington, D.C., Ginsburg suggested that she hopes one day the Heller dissenters will become the majority, and Heller will be no more.
With anti-gun Justice Elena Kagan replacing the retiring Justice John Paul Stevens, the anti-Second Amendment bloc on the Supreme Court is just one vote away from victory.
Breyer, meanwhile, is intensifying his public relations campaign against the Second Amendment. On Dec. 12, 2010, Breyer appeared on “Fox News Sunday” to promote his new book, “Making Our Democracy Work.”
(The interview video is available at http://video.foxnews.com/v/4456313/justice-stephen-breyer-on-fns.)
Breyer told host Chris Wallace that James Madison, the author of the Second Amendment, had no interest in protecting the right of self-defense. Instead, Breyer said, Madison had been fighting to get the Constitution ratified by the state conventions, and he was “worried about opponents who would think Congress would call up state militias and nationalize them.” So Madison proposed the Second Amendment because he was working on the principle, “I’ve got to get this document ratified.”
“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 continued. “If that was his motive historically, the [Heller] dissenters were right. And I think more of the historians were with us.”
Breyer is correct that there were more than a dozen American historians who filed “friend of the court” briefs in District of Columbia v. Heller and in McDonald v. Chicago, opposing the right to own firearms for self-defense. The problem with their contention is that the historical record directly contradicts those claims. For a good summary of the numerous errors by the history professors on whom Breyer and the other anti-Heller justices relied, see David Young’s excellent article “Why D.C.’s Gun Law Is Unconstitutional” at http://hnn.us/articles/47238.html.
During the state ratification debates on the proposed Constitution, there were, indeed, many concerns raised about the militia powers that would be granted to the new government. Article I, section 8 of the Constitution gives Congress the power to call the militia into federal service in order to “execute the laws of the union, suppress insurrections and repel invasions.” Further, Congress has the power to provide for arming, training and disciplining the militia.
Many people worried that Congress might abuse its militia powers by calling the state militias into federal service, marching them from state to state and thus depriving the states of the protection of the militias. Or, Congress might destroy the militias by neglect or by design--such as by enrolling only a tiny portion of the people into a “select militia” that would be loyal only to the national government, but that would not defend the states.
But here, the argument of Breyer, et al. collapses. To begin with, when Madison introduced the Second Amendment on June 8, 1789, he could not possibly have been thinking, “I’ve got to get this document ratified.” The Constitution had already been ratified by 11 states, two more than the nine required for ratification. Pursuant to the ratified Constitution, George Washington had been elected president of the United States.
