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Breyer Fires Warning Shot Across Second Amendment’s Bow

Friday, December 17, 2010

On Sunday, Supreme Court Justice Stephen Breyer reminded Americans why it is important to vote for a president whose nominees to the court will likely be faithful to the Constitution, to vote for U.S. senators who will reject nominees who likely will not be faithful, and to vote for federal and state legislators who can check and balance justices like Stephen Breyer who don't believe the Second Amendment protects any meaningful right.

On Sunday, during an interview with Chris Wallace on “Fox News Sunday,” Clinton nominee Breyer, who dissented from the Supreme Court's decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), claimed that the role of the court is to interpret the Constitution flexibly, in light of ever-changing circumstances.  Breyer argues that the court should give consideration not to the Constitution’s “words,” but to the “values” that the Framers had in mind. Fox News’ article on the interview can be viewed here.

The Framers’ “values,” Breyer suggested, would allow a total ban on handguns in Washington, D.C. “It’s not a matter of policy, it’s a matter of what those Framers [of the Bill of Rights] intended,” he said.

What Second Amendment author James Madison intended, Breyer said, was only to prevent Congress from nationalizing state militias. That, of course, is not what Breyer said in his dissent in the Heller case. Then, Breyer said that the amendment was intended to prohibit Congress from disarming state militias.

Regardless of what Breyer was trying to sell on Sunday, Wallace didn’t seem to be buying it. Pointing out the plain language of the amendment’s “keep and bear arms” clause, Wallace asked Breyer whether, in ignoring those words, he was assuming the role of politician or policy-maker, rather than that of a judge.

Breyer grinned smugly, said “no,” and sarcastically asked whether the amendment should be interpreted to allow the ownership of machine guns and torpedoes, as well as handguns. Wallace countered that at the very least, the amendment “certainly . . . didn’t provide for a ban on all handguns, as we have here in Washington, D.C.”

To that, Breyer, still grinning, asked Wallace, “Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland.”

Realizing that Madison and the other Framers surely did not intend for the Second Amendment to mean one thing in Maryland and another in D.C., Wallace pointed out that allowing a ban on handguns in D.C. while not allowing it in Maryland would be “a policy issue, not a constitutional issue.” Breyer changed the subject.

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NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.