Supreme Court Justice Breyer: Founders Were For Restricting Guns… Why Breyer is Wrong

by Warner Todd Huston | December 14, 2010 2:50 pm

On Fox News Sunday, Supreme Court Justice Stephen Breyer spoke of his dissenting decisions in the several Second Amendment cases that he heard as a Justice. He told host Chris Wallace that he thought that James Madison only included the Second Amendment in the Bill of Rights as a sop to the states and Breyer insisted that historians agreed. In essence, Breyer was saying that Madison was not interested in an individual’s right to gun ownership and self-protection and for that reason his dissenting opinions against that individual right accorded well with what the founder’s thought on the issue.

But Breyer’s assumption that a citizen’s right to bear arms is not sacrosanct and his following contention that the founders would agree seems to ignore much of the history of the era not to mention the precedents in law and the historical record upon which the founders relied to define their political ideas — including Madison.

Of course, it is a bit ridiculous to take one lone founder’s words and assume that it represents the opinion of all of them. It is quite easy, after all, to find quotes from any particular founder that in no way reflected even a minority opinion of the day. For instance, Thomas Jefferson once advocated that all laws be dumped every few decades so that the next generation could start over with their own ideas unencumbered by past generations. Even Madison thought that idea was absurd. Hamilton found that many of his most dearly held financial ideas left his fellows cold. John Adams thought that we should call the president “your majesty,” an idea that earned him much derision. And Poor Richard himself, Benjamin Franklin, once proposed that each galaxy had it’s own “God” that ruled in his own sphere meaning that there were infinite gods for infinite galaxies. Not every idea the founders had were gems, to be sure.

Still, Madison spoke with most of his contemporaries, not outside them, when he considered the meaning of the Second Amendment.

It is certainly true that the founder’s chief interest in creating the Second Amendment was to serve two important roles. One was to create a citizen army, a militia that could be called upon to defend the nascent nation. The second was to prevent the necessity of a large standing army, a body that most of the founders feared. Based on a clear reading of history, the prevailing opinion of the day was that a standing, powerful army served the forces of tyranny far more often than it served those of liberty. Consequently they wanted to figure out a way to make sure that the U.S. Army was small and too weak to threaten the citizenry.

This fact is what Breyer pointed to in order to prove his contention that Madison was not concerned with an individual’s right to own firearms.

On the Fox News show, after Wallace brought up Breyer’s dissenting opinions the Justice developed his thesis.

“It is a matter of what those framers intended. And you saw that first phrase,” Breyer told Wallace. “‘A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.’ What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, ‘I’ve got to get this document ratified,’ was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,” said Madison.'”

Breyer went on saying, “And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

In other words, Breyer was saying that Madison added the Second Amendment to assure the states that the U.S. Army could not be called together to oppress the states. That the focus seemed to be on precluding the federal government from using the army against the states, Breyer feels this means that the individual’s rights was not something “the founders” meant to assure with the Second Amendment.

But Breyer’s assumption ignores several key factors that influenced the founder’s ideas.

One important source of law that the founder’s relied on was the English Common Law. In fact, the founders felt that they were more true to the Common Law than the British themselves were. Just before the American Revolution, a most complete treatise of the English Common Law was published in England. This book was Commentaries on the Laws of England[1] written by Sir William Blackstone, a famed British jurist. These volumes quickly made their way to the colonies and wee soon found in the library of nearly every founder of means. At least by 1771 the books were also being reprinted in the colonies.

It was a well-accepted point that the right of self-defense was an important part of the rights of a full citizen. Here is what Blackstone said of those rights[2] in volume 2 of his treatise.

I. The defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations (1), be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray (d). For the law, in this case, respects the passions of the human mind ; and (when external violence is offered to a man himself, or those to whom he bears a near connexion) makes it lawful in him to do himself that immediate justice, to which he *is prompted by nature, and which no pnidential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society, hi the English law particularly, it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention ; for then the defender would himself become an aggressor (2).

As Blackstone understood self-defense, it was a “primary law of nature,” a natural right. This being assumed, the founder’s didn’t likely feel the need to explain this in the Second Amendment. After all, if they were going to footnote every basic assumption of their day the footnotes would have been ten times longer than the Constitution itself!

It wasn’t left unsaid in all the writings of the founding era, though. Many quotes along these lines can be found. Both Sam Adams and Jefferson, for instance, said that the people had an individual right to bear arms. “No free man shall ever be debarred the use of arms,” said Jefferson. For his part Sam Adams hoped that, “The said Constitution be never construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

In his own famous treatise on the U.S. Constitution early Supreme Court Justice Joseph Story also address the Second Amendment. Story wrote, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

Further more, many of the various state’s constitutions similarly assured that the right to keep and bear arms were an individual’s rights.

The fact is, the founders had a basic assumption that the right of the individual to keep and bear arms was fundamental not just to the Constitution, but to the natural rights of men. They didn’t feel a need to explain this basic assumption because their whole edifice was built upon it. When one talks of the sky, for example, most people immediately get the impression of a blue canopy with white clouds. One need not explain those colors every time one speaks of the sky. It is simply assumed. The idea that the individual has a right to bear arms was as commonly assumed by the founders as the idea that the sky is blue is to us.

This is not to say that all the founders felt that there should be no regulation of firearms, of course. But these facts do tend to make Justice Breyer’s concept risible, in any case.

Of course, the reason Breyer and his ilk want to ignore the entire history of the founding era and focus so closely on the mere words of the Constitution that all intent is invalid is because they want the Constitution to be that elastic, “living document” that has no fixed meaning at all. In that way they can make fungible our nation’s basic law and they can make of it anything they want to push their agenda.

Simply put, Breyer is completely wrong. The founders were not solely interested in using the Constitution to stop an out of control army from oppressing the people and were otherwise unconcerned with the individual’s right to bear arms. Yes they were interested in the danger the army might pose but it was fully assumed by all of them that the individual had that right to self-protection.

In fact, it is absurd to assume that there could be both a right of government to legislate guns away and still even have that ability of the citizens to rise up to put down an out of control government.

After all, if the courts could legislate away the guns themselves it would destroy the individual’s right to firearms and it would necessarily eliminate the Second Amendment even if all you thought the Amendment was for was for a check on tyranny. We can use Jefferson’s words again to enlighten us here.

In his Report on Navigation of the Mississippi in 1792, Jefferson wrote, “It is a principle that the right to a thing gives a right to the means without which it could not be used, that is to say, that the means follow their end.”

In other words, if the government can legislate away firearms, saying they “could not be used,” then this would essentially take away the natural right of self-protection, the “means” being the firearms, that nearly every founder agreed existed.

In summation, Breyer is wrong. Madison wasn’t dismissive of an individual’s right to bear arms. He and his fellows assumed the right existed as a basic tenet of our natural rights.

(Another great little piece on the Second Amendment was written by Stephen P. Halbrook. It can be found at[3].)

Transcript of the segment of Fox News Sunday in question[4]:

WALLACE: OK. But I’m going to take an example which you mention in your book which would seem to a lot of people not to be an open case of an unforeseen possibility, but to speak directly to the words in that booklet, gun control.

Let’s put up the Second Amendment to the Constitution, which says this. “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms” — the right of the people to keep and bear arms — “shall not be infringed.” Now, Justice, I understand why, as a matter of policy, in a world with a lot of urban violence and big cities, that some people would say we need gun control, particularly in a big city like Washington, as they have here, and in Chicago.

You ruled in both of those cases. And in both cases the court voted twice over your dissent that the founders meant what they said, people have a right to bear arms.

BREYER: Yes. Yes. That’s a wonderful example because, of course, it’s not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, “I’ve got to get this document ratified,” was worried about opponents who would think Congress would call up state militias and nationalize them. “That can’t happen,” said Madison.

And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right. And I think more of the historians were with us.

WALLACE: But — well, the may — more of the historians may have been with you…


WALLACE: … but not most of the justices.

BREYER: Ah. But if you’re interested in history, and in this one history was important, then I think you do have to pay attention…

WALLACE: But — but when…

BREYER: … to the story.

WALLACE: … it says in the Constitution — when it says the right — not for militia — it says the right of the people to keep and bear arms, when you start talking, as you do in your book, about changing circumstances and real-world consequences, aren’t you acting as a politician or a policy maker and not as a judge?

BREYER: No. We’re acting as judges. If we’re going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes?

WALLACE: Well, in the case…

BREYER: Handguns?


BREYER: Because I’m just pointing out…


WALLACE: I understand. But it certainly didn’t provide for a ban, at least that’s what the court’s decision was, your court’s — it didn’t provide for a ban on all handguns as they have here in Washington, D.C.

BREYER: Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have…

WALLACE: But — but it’s…

BREYER: … a gun.

WALLACE: … but that’s a policy issue. That’s not a constitutional issue.

BREYER: Ah, the freedom of speech. Liberty. How do those words apply? How do they apply to the Internet? How do they apply to this program if you were to decide to put on the program a document that showed how to make a bomb?

How do they apply to the Internet in recent cases that we have seen being discussed? What a difficult question. And I’ll tell you we can find the answer to this question in large part by looking at the values that Madison, Hamilton and the others wrote in this document.

And it’s very hard to find the answer to those questions by looking at the word, because the word is liberty. And it’s very hard to find the answer to this question by just thinking, “I’m going to see what Madison thought about the Internet…”

WALLACE: Now, I’m going to ask…

BREYER: … because he didn’t — I’ll tell you right now, he didn’t — honestly, he did not think about the Internet.

  1. Commentaries on the Laws of England:
  2. Here is what Blackstone said of those rights:,+or+the+mutual+and+reciprocal+defence+blackstone&source=bl&ots=tMx69V6DnI&sig=ADM-689e7cQbSDm5DYUbYK0HBoI&hl=en&ei=4usGTe-kMsXHnAf3x9nlDQ&sa=X&oi=book_result&ct=result&resnum=5&ved=0CDAQ6AEwBA#v=onepage&q&f=false
  4. segment of Fox News Sunday in question:

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