The Second Amendment, History and the Supreme Court

Justice Breyer with a little extra-Constitutional text

According to Supreme Court Justice Stephen Breyer, "If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated."

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.

"Madison included the Second Amendment to appease the states", Breyer so glibly states. Could it have not been equally true, or more important, that Madison included the Second Amendment to appease the individuals in those states? Aside from Justice Breyer's view of the Second Amendment, which, if he were correct, (and he is not), would be the only one of the Bill of Rights not directed at securing the rights of individual citizens, let us look at his overly simplistic view of "history".

I say "overly simplistic", because it sounds like the view I had of history...in grade school and high school. To me, back then, history was more or less a collection of important facts, arrayed in chronological order. Historians dealt with ascertaining the facts from the historical record and then writing their own record. All very cut and dried.

My first year in college, I had a history teacher that challenged my way of looking at history. Yes, there are good histories and bad, but there are also conflicting histories.

Up until just recently, at least, Japanese history of WWII was radically different from that which we, and most of the rest of the world, were taught. In the Middle East, young Palestinians get a radically different history of Israel than do the Israelis (or most of the rest of the planet). Why is that? Because more than anything else, the study of history is intertwined with the theories of history. It is not just a case of C followed B, and B followed A. The Art of History (as opposed to the history of art) is selecting which incidents are most important and why. Perhaps the historian will tell you that C followed A and tell you its importance, omitting B entirely.

"History" is subject to the bias of the historian. If a historian believes that man is basically good and perfectable, he will write a different history than one who believes that man is depraved. The events can take on very different meaning based on the prism through which the historian views it.

I'm sure that Justice Breyer believes that history is on his side, because the historians whom he cites agree with him. I don't know if it is conceivable to him, that should a different school of historical theory should gain prominence that his claims to "be on the side of history" may well fall short.

The scary part would be that this man is interpreting the Constitution, not by itself, but through the prism of an historical theory which is far more fallible and transient than our founding documents.

His job, is to understand and interpret the text of the Constitution, not substitute some pointy headed historian's theory of how it ought to have been written. Sadly, this does not seem to be the case.

Cross posted at LCR.