Patterico's Pontifications

12/13/2010

Justice Breyer is an Originalist on the Right to Bear Arms!*

Filed under: General — Aaron Worthing @ 10:45 am



[Guest post by Aaron Worthing; if you have tips, please send them here.]

*Please note, I am being sarcastic.

—————

In Ex Parte Bain, the Supreme Court said quite logically that:

It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

Justice Breyer would have us believe that he was doing that when he dissented from the decisions extending the right to bear arms:

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.”

What a load of crap.  First, if we are going to talk about things other than the words of the Second Amendment, you will lose this debate, Stevie.  The idea that our founders, having only recently resisted the British by arms, would turn around and surrender those same weapons to the Federal Government is ahistorical claptrap.  The founders were specifically afraid that the Federal Government would lead to tyranny, and the notion that they would be afraid of the Federal Government turning to tyranny and then disarm in the face of that fear is lunacy.

Madison himself, far from being a reluctant supporter of the right to bear arms, rebutted the fear that the Federal Government would try to create a dictatorship in Federalist 46 by imagining an armed public resisting such an imagined coup.  Indeed, he went as far as to write that in Europe “the governments are afraid to trust the people with arms” going on to suppose that the right to bear arms alone could take down many european tyrannies.  And this was written over a year before Madison introduced the original proposal for the bill of rights.

Further, Madison’s entire objection to the Bill of Rights, historians know, is his fear of the principle of expressio unius would be used to enlarge the power of the federal governemtn.  That is, he was afraid that by expressly protecting some rights, they were implying that these were the only limitations on the power of the Federal Government.  When introducing his original Bill of Rights, he said:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

And what he was referring to as the “last clause of the fourth resolution” was the original draft of the 9th amendment.  The point was that Madison’s reticence was based on a concern that future congresses and future courts would interpret the Bill of Rights as the only limitations on the power of the Federal Government.  And Breyer would interpet them even more narrowly, saying that since Madison “didn’t really mean it” even the Bill of Rights themselves would not be actually read as a limitation on the power of the Federal Government.  The Federal Government could then do what it was expressly forbidden from doing.

The idea that Madison wanted or desired a constitution so badly he didn’t care about the protections of the Bill of Rights is bizarre.  It is a little frightening to see a justice think this way.

And it is even more frightening that he would think that this justifies ignoring the constitution.  Even if Madison felt that ratification was “held hostage” (to borrow from the Presidents post-partisan rhetoric) to those who wanted a bill of rights, the fact is he did present these amendments.  The American people did ratify it.  The idea that Madison’s subjective desire that the amendment should not exist at all should have the effect of vetoing the decision of the people to ratify it is terrifying.

This is doubly true because this logic would apply to every single one of the Bill of Rights.  Madison never specifically opposed the second amendment.  He opposed the entire idea of a Bill of Rights, for exactly the reason I discussed.  So if his supposed reticence regarding the second amendment is a justification for ignoring it, then it is a justification for ignoring everything else in the Bill of Rights.

Of course all that historical background will get you nowhere without the text in support, but in this case we have exactly that.  To put it simply, the founding fathers believed in, and recently practiced, the God-given right of rebellion, and while our constitution does not (and indeed, cannot) legalize rebellion, with the first and second amendments Congress did the next best thing.  We were granted the right to voice our complaints, to put those complaints in print, to assemble ourselves into a group to address those complaints…

And for that assembly to be armed.

I want to be clear that I don’t believe we have to exercise this kind of “second amendment solution” any time soon.  But as Judge Kosinski once wrote:

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

[Posted and authored by Aaron Worthing.]

75 Responses to “Justice Breyer is an Originalist on the Right to Bear Arms!*”

  1. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

    Kozinski was vindicated by the Supreme Court twice.

    It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

    Every judge and lawyer should read this.

    Michael Ejercito (249c90)

  2. Couldn’t agree more, protection from government. Not that there’s a need for concern.

    gary gulrud (790d43)

  3. michael

    > Every judge and lawyer should read this.

    its one of my favorite quotes.

    Aaron Worthing (e7d72e)

  4. Breyer is accepting the arguments of “historians” who had their theories completely discredited with respect to the history of the Second Amendment, and its subsequent interpretations.

    SPQR (26be8b)

  5. There is a plausible argument that the 2nd amendment protects the right to have a regulated militia (plausible, but not one that is strong), so I can understand someone making the argument that the 2nd does not confer an individual right.

    However, Breyer outright admits that he can read, ignore, and intentionally misrepresent facts and the constitution to rule as he sees fit without regard to any limitations as a judge.

    How else to you get the dissent in Heller, McDonald, citizens united and the majority in Kelo and grutter.

    Joe (6120a4)

  6. The oath of office of the Supreme Court Justice:

    “I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.”

    He broke his oath. His duty under the Constitution includes upholding the Constitution. Even the parts of the law that he thinks were negotiated.

    Breyer is doubly wrong, since Madison was a powerful proponent of the right to bear arms, and he’s triply wrong in the idea that a fundamental right can be abridged by the states.

    But I’m more worried about the initial logic that he thinks entitles him to vote against the Constitution at all.

    He should be impeached. Don’t sell me some crap about how Obama would appoint someone worse, guys. A) that’s not possible, and B) Breyer just crossed the line.

    Can you imagine taking your Con Law claims, based on civil rights, to a Court that has this man presiding? He is implicitly admitting that the 2nd amendment, as it stands, must go against his vote, since he justifies his vote by questioning the legitimacy of the law.

    Haul his ass before the Judiciary Committee. Let democrats vote to keep this crank on board, if they have the guts.

    Dustin (b54cdc)

  7. At last, a reason to believe in the rule of law.

    ropelight (567018)

  8. (Although I believe that sitting judges never should speak out on matters that may come before the court,) I am glad that this over-credentialed bonehead, Breyer, DID speak out because he thereby revealed himself AS a bonehead. Such is the stuff of “living Constitution” liberals.

    [nick fixed. so this was not really Andrew Sullivan. heh. –Aaron]

    Mitch (890cbf)

  9. #8 is by me. Name field was left over from Friday Sockpuppet post.

    Mitch (890cbf)

  10. During the rest of his interview on FOX, you didn’t mention the icing on the cake? And I’m paraphrasing, “You can take the subway to Maryland if you want to use a gun”, in relation to a question Wallace asked him about gun control in DC. I guess Breyer believes that the constitution has geographic limits! What an embarrassment as a SCJ and a partisan hack!

    hstad (58736e)

  11. mitch

    fixed. it happens.

    Aaron Worthing (e7d72e)

  12. /start trenchant insightful commentary

    Stevie is a mendoucheous twatwaffle.

    /end trenchant insightful commentary

    redc1c4 (fb8750)

  13. I agree with A.W. in that, even assuming the Second Amendment was a “compromise” to certain states, we can’t simply dismiss the text on those grounds. Virtually every part of the Constitution, as well as most statutes, are compromises. So yes, Breyer is simply opening up an odd form of judicial interpretation if he is saying what he appears to be saying.

    But Breyer isn’t out in left field when he suggests that Madison envisioned the Second Amendment to be limited to individuals serving in militias… and that the federal government may, in that case, regulate individual gun ownership outside that context.

    *******

    We were granted the right to voice our complaints, to put those complaints in print, to assemble ourselves into a group to address those complaint… And for that assembly to be armed.

    Which is NOT what Madison advocated in Federalist 46. Federalist 46 was written to quell fears about an dictatorial federal government holding unjust power over states, rather than over people. Thus, Madison wrote about the power of armed citizens in the context of State militias:

    “Besides the advantage of being armed, which the Americans possess over the people of almost any other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprise of ambition.”

    In Federalist 46, Madison could have invoked the power of individual armed citizens as the bulwark against federal tyranny but he did not. Instead he argued that “subordinate governments” provided this protection, backed by armed citizens they organized and managed.

    Madison continues:

    “But were the people to possess the advantage of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions surrounding it.”

    Clearly, Madison was talking about armed citizens as a component of State government power, not individuals forming ad hoc militias.

    Kman (d30fc3)

  14. But Breyer isn’t out in left field when he suggests that Madison envisioned the Second Amendment to be limited to individuals serving in militias… and that the federal government may, in that case, regulate individual gun ownership outside that context.

    I agree that he is not out in left field – but as you point out most if not all the constitution is a compromise – But the second amendment includes the phrase “the right of the people to keep and bear arms shall not be infringed” which is most certainly an individual right.

    Madison may have only wanted a state militia right – but what is written is an individual right, with the possibility that the states have the right to maintain militias which also shall not be infringed. (two rights in the second amendment instead of the commonly believed either/or but not both rights).

    That being said – we still have a justice that openly states that he knows full well that he is ignoring the constitution.

    Joe (6120a4)

  15. Liberal commentators wonder why Oklahoma voters just ratified an anti-sharia law to their state constitution if there is no immediate threat of judges using sharia law to decide cases.

    Fuzzy headed liberal judges such as Stevens are the reason and the impending threat to the extent they proliferate through our judicial system. Liberal commentators wondering about the Oklahoma law should watch this clip of Stevens on Fox saying he does not care what is in the constitution to understand what judicial activism is all about and why it concerns most Americans.

    daleyrocks (c07dfa)

  16. For purposes of what states can do to regulate possession of arms, it’s not clear to me that the intent of the authors of the second amendment matters.

    It’s the intent of the authors of the fourteenth amendment which would govern, if you were going with an intent-of-authors standard … because it’s the fourteenth amendment which limits state behavior.

    aphrael (e0cdc9)

  17. we still have a justice that openly states that he knows full well that he is ignoring the constitution.

    Joe, he’s not openly stating any such thing. He’s just speaking about his judicial philosophy about how to interpret the constitution. “Ignoring” is what YOU say it is.

    Kman (d30fc3)

  18. “Clearly, Madison was talking about armed citizens as a component of State government power, not individuals forming ad hoc militias.”

    Clearly, Madison was talking about INDIVIDUALS POSSESSING ARMS if the need arose, serving under state appointed officers of a militia.

    Does not negate the power of the individuals to possess arms.

    daleyrocks (c07dfa)

  19. Excuse me, but the Constitution was already ratified, Congress was in session and Washington was President before the Bill of Rights was introduced. How could Madison have drafted the Second Amendment in such a way as to secure ratification of the Constitution four years previously? Just asking.

    Mahon (9dd6f3)

  20. ““Ignoring” is what YOU say it is.”

    No, Stevens said instead focus on collateral documents and debate to divine the real intent, not the written word.

    daleyrocks (c07dfa)

  21. Clearly, Madison was talking about INDIVIDUALS POSSESSING ARMS if the need arose, serving under state appointed officers of a militia.

    Does not negate the power of the individuals to possess arms.

    Well, arguably, it does negate the power of individuals to possess arms, if the individuals in question aren’t “serving under state appointed officers of a militia” (which is what the Second Amendment protects if you believe, as Breyer does, in the collectivist interpretation)

    Kman (d30fc3)

  22. And… it doesn’t matter.

    Breyer can cast his vote on whatever principle he wishes, he can say his votes are based on dream in which God himself told him to vote a certain way… and no one can do anything about it, he’s there for life.

    steve (369bc6)

  23. Joe, he’s not openly stating any such thing. He’s just speaking about his judicial philosophy about how to interpret the constitution. “Ignoring” is what YOU say it is.

    Congress shall make no law, … or abridging the freedom of speech, – Citizens United.

    nor shall private property be taken for public use, – Kelo

    the right of the people to keep and bear Arms, shall not be infringed – Heller

    Excuse my terminology – in my opinion – his judicial philosophy includes ignoring the constitution.

    Joe (6120a4)

  24. “Well, arguably, it does negate the power of individuals to possess arms, if the individuals in question aren’t “serving under state appointed officers of a militia” (which is what the Second Amendment protects if you believe, as Breyer does, in the collectivist interpretation)”

    But he is citing Madison. Is that what Madison believed? Show your work, please.

    daleyrocks (c07dfa)

  25. Just an observation: the 2nd Amendment does not give citizens the right to bear arms.

    The 2nd Amendment prohibits anyone from infringing on the right to bear arms. The right is a “natural” right — as in the right of self defense — and existed prior to the constitution. The government cannot grant the right; it can only attempt to take it away. This is the reason for the language: “…the right of the people to keep and bear arms shall not be infringed.”

    navyvet (db5856)

  26. But he is citing Madison. Is that what Madison believed? Show your work, please.

    Well, we don’t have complete insight into what he believed; we just know what he wrote. And in both Federalist 46 and in the Second Amendment itself, Madison wrote of the right to possess arms in the context of state militias to counter a federal dictatorialness. He never wrote of the right to bear arms outside of that limited context (i.e., he never wrote about with respect to individual self-protection, etc).

    Kman (d30fc3)

  27. In the discussion of the Fourteenth Amendment, among the things that the Fourteenth Amendment was intended to overturn were state laws that forbid freedmen from bearing arms. Which is further demonstration that, at least less than a century later, the individual rights interpretation was widespread.

    SPQR (26be8b)

  28. The idea that Madison’s subjective desire that the amendment should not exist at all should have the effect of vetoing the decision of the people to ratify it is terrifying.

    That statement should repeate out loud by the clerk of the Supreme Court right after the attendees at any hearing are asked to be seated.

    Ira (28a423)

  29. Madison included the First Amendment in order to grant the government unlimited power, by making forced labor for the government explicitly Constitutional. It is only due to an unfortunate copying error that freedom “of the press gang” has been misinterpreted as “of the press”.

    malclave (1db6c5)

  30. “Well, we don’t have complete insight into what he believed”

    Exactly, you’re just making sh*t up.

    daleyrocks (c07dfa)

  31. Comment by Kman — 12/13/2010 @ 11:38 am

    The thought that Madison should view the right to bear arms as a collective right vs. individual right – is partisan, just like the political hack SCJ Breyer.

    Your selective use of quotes is interesting – mine are a bit more expansive!

    No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
    — Thomas Jefferson, 1 Thomas Jefferson Papers, 334
    Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defence? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress? If our defence be the *real* object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?
    — Patrick Henry, speech of June 9 1788
    That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms…
    — Samuel Adams, in “Phila. Independent Gazetteer”, August 20, 1789
    The danger (where there is any) from armed citizens, is only to the *government*, not to *society*; and as long as they have nothing to revenge in the government (which they cannot have while it is in their own hands) there are many advantages in their being accustomed to the use of arms, and no possible disadvantage.
    — Joel Barlow, “Advice to the Privileged Orders”, 1792-93

    The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.
    — Report of the Subcommittee On The Constitution of the Committee On
    The Judiciary, United States Senate, 97th Congress, second session
    (February, 1982), SuDoc# Y4.J 89/2: Ar 5/5

    In recent years it has been suggested that the Second Amendment protects the “collective” right of states to maintain militias, while it does not protect the right of “the people” to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and the Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.
    — Stephen P. Halbrook, “That Every Man Be Armed”, 1984

    Americans have the will to resist because you have weapons. If you don’t have a gun, freedom of speech has no power.
    — Yoshimi Ishikawa, Japanese author, in the LA Times 15 Oct 1992

    hstad (58736e)

  32. Y

    our selective use of quotes is interesting – mine are a bit more expansive!

    Yes, they are. And completely off-topic… we’re talking about Madison’s views on the right to bear arms.

    Kman (d30fc3)

  33. “Well, we don’t have complete insight into what he believed”

    Exactly, you’re just making sh*t up.

    Well, by that logic, so is anyone who makes blanket statements about what the “founders believed” or the “framers thought”.

    Kman (d30fc3)

  34. Daley – making shlt up is kmart’s default position.

    JD (109425)

  35. “Yes, they are. And completely off-topic… we’re talking about Madison’s views on the right to bear arms.”

    Comment by Kman — 12/13/2010 @ 1:01 pm

    I see, you must not have seen the interview in it’s entirety? Breyer did expand beyond Madison. For example, the “take the subway to Maryland” comment!

    hstad (58736e)

  36. kman really isn’t worth the time. He’s just out to prove he can get your attention now. It’s pretty funny how mad he gets when he doesn’t get any attention.

    Dustin (b54cdc)

  37. The Right to an abortion is sacrosanct, and must never be questioned. The collective right to keep and bear arms is ambiguous, open to several interpretations.

    JD (0d2ffc)

  38. What always troubles me is references to the faceless “founders” — Breyer does it here by saying the “Founding Fathers” never intended that guns go unregulated.

    Well, the truth is that the “Founding Fathers” were all reprentatives of individual states — they were not representatives of a central government negotiating with representatives of individual states.

    Now it is true that there were competing views among them about the nature of the relationship between the new central government and the existing state governments, and the resolution of the tensions between those two positions are what is reflected in the document. But to suggest that the “Founding Fathers” were somehow a distinct group from the Second Amendment advocates, and the Second Amendment was simply a bargaining chip to assure ratification, is just nonsense.

    shipwreckedcrew (4ae072)

  39. Comment by shipwreckedcrew — 12/13/2010 @ 1:17 pm

    As other commentators previously indicated: All the amendments where negotiated separately and where compromises that resulted in a great document! Breyer is just a political hack! And what blew my mind was “take the subway to Maryland to shot your guns”, comment. That’s what political hacks do, justify their partisanship with convoluted logic that only they can understand!

    hstad (58736e)

  40. Madison wrote of the right to possess arms in the context of state militias to counter a federal dictatorialness. He never wrote of the right to bear arms outside of that limited context (i.e., he never wrote about with respect to individual self-protection, etc).
    Comment by Kman — 12/13/2010 @ 12:22 pm

    — How can a militia be formed if the arms have already been banned?

    Well, by that logic, so is anyone who makes blanket statements about what the “founders believed” or the “framers thought”.
    Comment by Kman — 12/13/2010 @ 1:03 pm

    — Thank you for illustrating Breyer’s problem.

    Icy Texan (8de0af)

  41. Thank you, JD. Right, as usual.

    Icy Texan (8de0af)

  42. Kman is confused. He thinks that “the people” in the 2nd Amendment actually means “the state”.
    An understandable collectivist mistake.

    Icy Texan (8de0af)

  43. How can a militia be formed if the arms have already been banned?

    Nobody was talking about a “ban”. But they could be restricted as to who can own them, under what circumstances, and where they are to be kept (armories, etc.)

    Thank you for illustrating Breyer’s problem

    Yup.

    Kman (d30fc3)

  44. Kman is confused. He thinks that “the people” in the 2nd Amendment actually means “the state”.

    Icy, for what its worth, I largely agreed with Heller (the result, not so much the reasoning).

    We’re talking, however, about Madison’s views.

    Kman (d30fc3)

  45. Icy

    most of us have resolved to stop responding to Kman. The reason why is he just stupidly disagrees, often without read the post at all, which is evident by the content of his contents.

    i mean we agreed to ignore him. no one can force you to go along, but if you would like to join us…

    Aaron Worthing (e7d72e)

  46. Comment by Kman — 12/13/2010 @ 1:36 pm

    James Madison: Americans have “the advantage of being armed” — unlike the citizens of other countries where “the governments are afraid to trust the people with arms.”

    Kind of surprised that you missed this quote! Notice he does not use ‘Militia’ and the theme of the comment is anti-regulation!

    hstad (58736e)

  47. James Madison: Americans have “the advantage of being armed” — unlike the citizens of other countries where “the governments are afraid to trust the people with arms.”

    Kind of surprised that you missed this quote!

    I think you need to read the full quote. See my comment at #13.

    Kman (d30fc3)

  48. Comment by Aaron Worthing — 12/13/2010 @ 1:40 pm

    Sorry for my last missive! I agree with your comment wholeheartedly!

    hstad (58736e)

  49. It really is stunning that Breyer realized his vote was so obviously contradicted by the Constitution that he feels the need to say part of the Constitution doesn’t really count.

    This man should be removed. At the very least, there should be a major movement to attempt to remove him, and any civil rights cases should object loudly to his involvement.

    Dustin (b54cdc)

  50. Joe, at 23: you are eliding the quote in a way which changes its meaning.

    The seventh amendment says: “nor shall private property be taken for public use, without just compensation.”

    The amendment explicitly allows the taking of private property for public use when just compensation is paid.

    Navyvet, at 25:

    at the time of ratification, the bill of rights only restricted the behavior of the federal government. The restrictions on state behavior stem from the fourteenth amendment, either under the theory that the right to bear arms is protected as a privilege and immunity of national citizenship (not endorsed by the courts) or that the fourteenth amendment’s prohibition on denial of liberty without due process of law means that state’s can’t deny people the right to bear arms without the act denying them that right being narrowly tailored to meet a compelling state interest (the interpretation favored by the courts).

    aphrael (e0cdc9)

  51. Aphrael #50 in response to #23

    The amendment explicitly allows the taking of private property for public use when just compensation is paid.

    Aphrael – we agree that private property may be taken for public use if compensation is paid – the difference is that the property in Kelo was taken for private use. A bogus claim was made that the increase in value in someone else’s private hands was a “public benefit” and therefore was for “public use”.

    joe (6120a4)

  52. I could have sworn that was the Fifth Amendment.

    SPQR (26be8b)

  53. Joe, that’s exactly right. Kelo’s home as not taken for the use of the public, but for the use of a powerful private entity who promised to pay his taxes.

    BTW, the land is unused today. They simply ruined someone’s home and their own community because they wanted the power to do so.

    If the public has no use of the land being seized, that’s unconstitutional, though apparently Breyer disagrees. I’m confident he knows quite well that he’s not in line with the ratifiers of the Constitution.

    Dustin (b54cdc)

  54. SPQR: it is. The site that I cut + paste the text from numbered them including the two which didn’t pass, and I’m operating on < 4 hrs of sleep while multitasking in a mind-numbing dual-language software interface training, so I failed to correct for it.

    Joe: that's not what you said in comment 23, where you omitted the clause specifying the conditions on which private property could be taken for public use.

    The trouble I have with the dissent in Kelo is that municipalities were confiscating private property and then turning that property over to privately owned railroad, turnpike, and bridge companies in the first half of the nineteenth century. I see no principle other than “we like these improvements better than those improvements” which justifies those being confiscation for public use and which doesn’t justify the confiscation in Kelo as being for public use.

    If the issue is simply that you prefer one kind of quasi-public use to another kind of quasi-public use, well, the Constitution doesn’t enshrine your preferences (or mine).

    aphrael (e0cdc9)

  55. “There is no problem, I don’t think, for anyone who really wants to have a gun.”–Some halfwit leftist masquerading as a judge

    Definitely true for me, since I ignore any and all unconstitutional gun control laws…which is all of them.

    Dave Surls (1bbc32)

  56. My wife couldn’t understand why I turned off the volume in disgust after his comment about going to Maryland. God, the man’s a Supreme, and he came across as a complete partisan hack.

    Dmac (498ece)

  57. Dmac

    As a hick, I resent the comparison. :-)

    Aaron Worthing (b8e056)

  58. News flash, Steve: I don’t need to go to Maryland to exercise a constitutional right. I can do it just fine right here.

    mojo (4e4a98)

  59. “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.”

    That’s certainly true. The founders who thought like Breyer definitely didn’t want their slaves to have guns. They regulated that big time.

    Dave Surls (ca8316)

  60. Why didn’t Breyer put this information into his dissent in Heller. And particularly “suggest taking the subway to Maryland.” Probably afraid that Scalia would use it over and over for Breyer’s beloved Abortion right (which apparently is not subject to reasonable regulation).

    Kevin M (298030)

  61. “The seventh amendment says: “nor shall private property be taken for public use, without just compensation.”

    The amendment explicitly allows the taking of private property for public use when just compensation is paid.”
    Comment by aphrael — 12/13/2010 @ 1:46 pm

    This alone is all the justification needed to justify the 2nd amendment. When “public use” can be interpreted to mean “pays more taxes”, then I believe that to be justification to protect yourself from an unjust government with whatever means available.

    What value can you place on a lifetime of memories when the government decides that your property would be more valuable to them in someone else hands? Just compensation for a home that is paid for, has low taxes because you have lived there for 50 years is going to be very low.

    Jay H Curtis (8f6541)

  62. What’s bizarre is that if Breyer is right–that Madison felt compelled to introduce the Bill of Rights because of objections to the original constitution by the anti-federalists–then that would increase the weight given to the amendments, not decrease it.

    If what Breyer is saying is true, that means the BoR and the Second Amendment is crucial to the bargain that was the ratification of the Constitution. Without the reassurances that Madison promised to provide, the anti-federalist faction would have been stronger, and perhaps would have blocked ratification altogether. That increases the weight the court should give to the 2nd and other amendments, rather than decreasing it; it should be considered a basic part of the balance of powers and rights between the federal government, the states, and the people. It was part of the grand bargain, and can’t be ignored after the bargain was struck.

    Ernst Blofeld (31fe5b)

  63. @kman,

    You quote Madison (at least I’m believing you did as I did not check).

    “Besides the advantage of being armed, which the Americans possess over the people of almost any other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprise of ambition.”

    Notice that the “advantage of being armed” comes first. It is because of this advantage that we can form militias. First Americans are armed, then they can form militias. It isn’t because Americans are in a militia and can therefore be armed. Americans are armed first. Notice that it is “Americans”, not SOME Americans.

    I believe you have completely misinterpreted what Madison wrote. But even that doesn’t matter, for it is not what Madison thought, but it is what is actually written as an amendment to the constitution that matters.

    Tanny O'Haley (12193c)

  64. Kmart seems to be under the impression that “a” militia is some sort of state agency, run by the state, which hires its members. He seems to think the militia is something different from the general population. He probably also thinks that the “freedom of the press” guaranteed by the first amendment means that there is some special group of people, who call themselves “the press”, and that these people have special privileges and freedoms that the rest of us don’t. Some people will believe anything.

    The militia is us. It’s every able-bodied citizen capable of bearing arms. The states may appoint the militia’s officers, but they don’t appoint its members. And to make sure we’re able to fight when the time comes, the second amendment guarantees the people‘s right to own whatever weapons we can afford.

    And a press is a machine; “freedom of the press” just means that everybody has the right to use one, just as “freedom of speech” means everyone has the right to speak, not that there is some group of people called “the speech” whose freedoms are protected.

    Milhouse (ea66e3)

  65. Jay Curtis, “just compensation” has elsewhere been determined to require at least fair market value. So: it’s going to be the amount you could get selling it today, not the amount you bought it for fifty years ago.

    aphrael (9802d6)

  66. one question no staunch defender of gun control has ever been able to answer for me is this:

    if “the people” in the Second Amendment doesn’t refer to an individual right, then how is it that all the other time “the people” is used in the Constitution and Amendments it does?

    redc1c4 (fb8750)

  67. So the Second Amendment says bearing arms is a right. I disagree, but nowhere does it say that this right extends to the mentally disturbed or those with a criminal record, which are the only people that should be barred from owning weapons; so I don’t see why folks like Breyer are so keen to see it repealed. Gun control is not the same thing as a ban on guns. The latter is not only illegal but useless since one society’s violence issues have little to do with the availability of weapons – look at Switzerland, a rather peaceful nation where anybody can and often does own a gun. Liberals hold it as an absolute that weapons are bad, but this absolute stands in the way of any sensible reform.

    Optimus Prime (0692b1)

  68. gun control is easy to achieve and requires only a few simple steps:

    1. proper grip
    2. good sight picture
    3. breath control
    4. steady trigger squeeze
    5. control the recoil and recover your sight picture
    6. evaluate and re-engage as necessary

    repeat PRN

    redc1c4 (fb8750)

  69. Jay Curtis, “just compensation” has elsewhere been determined to require at least fair market value. So: it’s going to be the amount you could get selling it today, not the amount you bought it for fifty years ago.

    Comment by aphrael — 12/14/2010 @ 12:33 am

    I understand that. My point being that fair market value for an older home is probably not going to be enough to buy a new place and even if it is, the new place could still be outside the person’s ability to pay for it on a fixed or limited income.

    i.e. I bought my home 15 years ago for $115,000. Going price for similar homes in my neighborhood is about $250,000. Sounds like a nice profit, right?

    Wrong. My business has been declining as the small businesses I support have been down sizing or going out of business. While I have no problems with making the payments no, my income would not qualify me to buy my home today, even with the down payment of the equity that I currently have.

    Even if I could get the loan, the increase in property taxes would make things difficult as they would double.

    And all of this assumes that I could even find a home in San Diego in my price range.

    Now consider a person who is living on a restricted income in a home that is 40-60 years old and needs work to sell. It may be a nice, clean home but small without modern conveniences. It would have a low resale value but it is adequate for the person who lives there and it is home. What price do you put on it?

    Fair market value should take these circumstances into account when you are planning to basically steal another’s property. If his home is paid off, then you should have to pay off his new home. If the taxes on his property are $500 per year, you should assess his new home at the same tax rate as long as he lives there. Governments should not be able to destroy a person’s life just because they legally can do so.

    Jay H Curtis (8f6541)

  70. The idea that SCJ Breyer would ignore the wording of the actual law as passed by Congress because it was a compromise seems to me a perfect example of why people should be armed.

    Every law is a compromise. Therefore Breyer feels he should be free to interpret them anyway he wants to.

    Sounds like what dictators do.

    Jay H Curtis (8f6541)

  71. Just compensation always undersells things. for one thing in the real work if a company wants to buy your land to build a mall, the value of that land will rise as a result of the mere fact they are interested. To be blunt, no one says “goodie” i am about to get “just compensation.” Its generally a little bit of the shaft.

    I mean i support condemnation within prescribed limits, but 1) i think kelo went too far and 2) i wish the compensation was more just.

    Aaron Worthing (e7d72e)

  72. Keep your agreement to yourself, A.W.

    Icy Texan (e6275d)

  73. ” just compensation” is often never received.

    The primary reason property is condemned via eminent domain is because the purchasing party didnt want to pay fair market value.

    The proper just compensation is based on highest and best use (and willing buyer and willing seller).

    A sixty – seventy year old house may bring 100k as a house, but would bring 150k as land for the new shopping mall or the new football stadium. – highest and best use. but the just compensation is usually paid out based on existing use, not highest and best use.

    Assuming you do receive just compensation, you are often not compensated for the cost of moving and the related disruption costs.

    joe (6120a4)

  74. Justice Breyer … please cite your source

    Neo (03e5c2)

  75. Neo, he’s repeating crap that was in the “historians” amicus brief on behalf of D.C. in Heller. Material that was utterly debunked by the pro second amendment scholars amicus brief. Hilariously, the dissent abandoned the ridiculous claims, but Breyer resurrects them in a forum where he can’t be challenged for his lack of integrity.

    SPQR (8d021c)


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