Wednesday, December 22, 2010

James Madison, the Second Amendment, and the Supreme Court

The constitutional debate over the the right to bear arms was reopened recently when Justice Stephen Breyer claimed that the founders, especially James Madison, would have thought it was appropriate to regulate the use of guns.  His comments were made in the context of a discussion about the 2008 case, District of Columbia v. Heller, in which the Court struck down a D.C. ban on handguns.  Breyer, along with Stevens, Souter, and Ginsburg, were the dissenting justices on the case.

In today's New York Times, historian Pauline Maier notes that there are historical problems with the arguments made by both the majority opinion and the dissenting opinion in D.C. v. Heller.  Here is a taste:

The dissents — written by Justices Breyer and John Paul Stevens and joined by Justices David Souter and Ruth Bader Ginsburg — held that the Second Amendment affirms the right of the people to “keep and bear arms” as part of a “well-regulated militia,” but not an absolute individual right to own a gun. And if there is no constitutional right at issue, gun regulation should be set by elected legislatures and local governments, not the courts. That’s not “activist.”

Indeed, contrary to what many Second-Amendment absolutists suggest, Justice Antonin Scalia’s majority opinion in Heller did not preclude all regulations of firearms, only those that amounted to a prohibition on ownership or prevented their use in the home for self-defense.

However, Justice Breyer went further in his Fox interview. He said that James Madison wrote the Second Amendment because some Americans feared that Congress would call up the state militias and nationalize them. Madison proposed the amendment, the justice said, to appease these skeptics and to “get this document ratified.” Justice Breyer continued: “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

There is a problem with this argument: by the time Madison proposed what became the Second Amendment on June 8, 1789, the Constitution had already been ratified and was in effect. Rhode Island and North Carolina had yet to ratify, but it’s hard to believe that Rhode Island, with its many Quakers, would be enticed into the Union by an amendment affirming the right to bear arms.

Madison’s actual motives for proposing the amendments, as a representative in the first federal Congress, are well documented. He hoped to “parry” the call for a second federal convention to consider amendments proposed by several state ratifying conventions, one of which would have modified Congress’s wall-to-wall taxing powers.

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