Monday, December 13, 2010

Do the Founders' motives for compromise cancel out what they actually wrote?

Steven Breyer was on Fox News yesterday and answered a question about the Second Amendment and his reasoning for voting in favor of the District of Columbia's gun control law in D.C. v. Heller. According to Breyer, the fact that the Second Amendment was added in order to win the votes of those opposed to the Constitution somehow obviates the meaning of the actual amendment.
If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.

Appearing on "Fox News Sunday," Breyer said history stands with the dissenters in the court's decision to overturn a Washington, D.C., handgun ban in the 2008 case "D.C. v. Heller."

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

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.

"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."

That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.
Think about the foundation of what he is saying. If Madison included an amendment to appease the states, then we don't need to pay attention to what is in the actual amendment, but what Madison really thought before he compromised. Just follow that logic. The entire Constitution is the result of compromises among various groups at the Constitutional Convention. Should we go back to Madison's original proposals for the Virginia Plan in which he wanted the federal government to have a veto over state laws and for both houses to be chosen based on population? Or if you don't want to go back to the compromises at the Convention, what about the entire Bill of Rights? That was added on as a compromise to get the support of those who opposed ratification of the document. Madison didn't originally think that a bill of rights was necessary and only promised to propose one in order to get the support of those opposing ratification at the Massachusetts state ratification convention. Massachusetts ratified the Constitution along with a recommendation that amendments protecting rights be added after the document was ratified. States meeting to ratify the Constitution after Massachusetts included similar language in their final ratification.

Any civics student could tell Breyer that the Bill of Rights, including the Second Amendment, was added in order to ensure ratification of the entire document. If wwe were to adopt Breyer's argument, then that would obviate the need to follow any of the other rights guaranteed in the first ten amendments. It's ridiculous. Of course, Breyer doesn't mean that...except for when it gives him an argument to rule as he really wanted to in Heller.

UPDATE: Ed Morrissey recommends that Justice Breyer read Federalist 46 in order to find out why Madison consider the people's right to possess arms crucial to the preservation of liberty.