Wednesday, December 15, 2010

Photographic proof! Supreme Court Justice Steven Breyer associates with Reds! Old ones! In funny hats!

Oh, and he also came up with a uniquely, er, creative historical explanation for why the Second Amendment was just a political compromise and should probably be repealed or ignored.

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.
It's all so clear now! Madison wrote the 2A, and all those Federalist essays to defend it, because writing stuff down was the political equivalent of talking. Madison was a politician, and so no matter in what medium he expressed himself he was clearly lying! Therefore, every part of the Constitution written by Madison is null and void!

What? No, no! Breyer didn't say that at all - let's not go so far. Only the 2A is null and void - Madison meant all that other stuff. Er, that is, unless this sorry-ass excuse for an argument actually works. In which case we're definitely taking a second look at that pesky fourth amendment thing.

It's good to be senile out of your mind king!

Oh, and should we bring up the notion that since Madison's assurances concerning how impossible it was for the National Guard state militias to be nationalized kinda proved false, maybe the concerns of dissenting states have been historically vindicated? Or would be, if anyone even looked at the question anymore? Which people should, BTW. Because last time I read history, the state governments were supposed to field citizen militias and the federal government wasn't supposed to field a standing army.

None of which really has much to do with the fact that "Shall Not Be Infringed" is a pretty damned unambiguous phrase. Until the poor little thing is left alone in a room full of lawyers. Because the important thing here isn't WHY Madison wrote what he did, but the fact that he did, in fact, write it. And then it was ratified as an amendment to the constitution. And that's pretty much that, Justice Breyer.


suek said...

I'd have to find it, but someone also commented on the fact that Madison's comments post-dated the ratification of the Constitution, and pre-dated the Amendments.

I'm not qualified from a legal standpoint, but time lines are pretty definitive...

Kevin Wilmeth said...

Nicely said as usual, Joel.

I'd also add this observation: even if you entertain the notion that Breyer was right on Madison's being more concerned with passage of his pet project than with a principled defense of a natural right...what does that tell us?

Seems to me that it tells us that he, as a politician, knew that nobody would support nationalizing the armed public (whether out of defense of the individual or the states, no difference), and so had to toss a specific bone in there to convince people that this would not be tolerated. He knew the public was against it, so much so that he had to include a specific prohibition in order to get the deal passed.

"Plus ça change, plus c'est la même chose," indeed. A politician knowing full well that an idea is both wrong and that nobody wants to see it happen, and nonetheless engineering a loophole so as to placate the public without ever intending to honor the agreement? Oh, my poor over-used shocked face...

And speaking of common themes, how about that appointed government official, using his position and celebrity to lecture the peasantry about inexplicably implausible revisions of history, always and ever serving the singular goal of defending and aggrandizing the government which subsidized him?

Seriously, just what do they teach people in law school about "conflict of interest" these days?

Ken said...

I once had a lawyer (and co-blogger at a pretty well known blog) try to tell me with a straight face that the Ninth Amendment wasn't meant to mean anything, more or less.

Pat H. said...

Breyer is still going to go to hell, Cardinal or no Cardinal saying prayers over him.