Smearing Madison

Posted on March 17, 2011

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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.

More importantly, Breyer is conflating the Second Amendment--which Congress approved--with another proposed amendment that Congress rejected. Rep. Roger Sherman of Rhode Island introduced an amendment to address concerns about federal militia powers. The Sherman proposal read:

“The militia shall be under the government of the laws of the respective States, when not in the actual Service of the United States, but such rules as may be prescribed by Congress for their uniform organization and discipline shall be observed in officering and training them, but military Service shall not be required of persons religiously scrupulous of bearing arms.”

If the object were to protect the state militias from the misuse of federal power, Sherman’s amendment showed the way. The U.S. House committee that was drafting the Bill of Rights, however, did not support that amendment.

Instead, the committee favored a proposal from James Madison. Unlike the Sherman amendment, the Madison amendment said nothing about state control of the militias. Rather, the amendment protects the right of “the people.”

Madison’s original structure of the Bill of Rights did not place the amendments together at the end of the text of the Constitution (the way they were ultimately organized). Rather, he proposed interpolating each amendment into the main text of the Constitution, following the provision to which it pertained. If he had intended the Second Amendment to be a limit on the power of the federal government to interfere with state militias, he would have put it after Article 1, section 8, which grants Congress militia powers. Instead, Madison put the right to bear arms amendment, along with the freedom of speech amendment, in Article I, section 9--the section that guaranteed essential individual rights, such as habeas corpus.

Additionally, in ratifying the Bill of Rights, the Senate rejected a change in the Second Amendment that would have limited it to bearing arms “for the common defense.”

In a Dec. 21, 2010, New York Times op-ed, historian Pauline Maier rushed to Breyer’s defense. Maier is a respected historian of late 18th century America, but like most of the other historians whom Breyer tallies as supporting his viewpoint, has no particular expertise in Second Amendment history. Indeed, her new book, “Ratification,” contains nothing about the Second Amendment except to note where Madison wanted to put it.

Yet Maier’s New York Times column asserts that it is “abuse of history” to justify Heller “by citing Madison and the other founders and framers.”

Another historian in the Breyer camp, Stanford’s Jack Rakove, has studied Second Amendment history. Yet he too--like all the opponents of the meaningful individual right--is unable to provide a coherent explanation of what the Second Amendment does mean if it does not mean a right of ordinary people to own and carry arms.

Shortly after Heller was decided, Rakove participated in a debate with UCLA Law Professor Eugene Volokh, who is among the large majority of Second Amendment law and history experts who believes that Heller was rightly decided. In the deb

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