This morning, Justice Stephen Breyer took to the Sunday news shows to promote his new book, "Making Our Democracy Work." In the course of his interview with Fox's Chris Wallace on "Fox News Sunday," Justice Breyer indicated the Founders never intended for as free an application of the right to bear arms as many citizens today insist upon.
He said that James Madison, in writing the Second Amendment, wrote the right to bear arms into the Bill of Rights more out of an interest in getting the Constitution ratified than an interest in granting citizens the right to bear arms. Justice Breyer hinted that Madison was more interested in appeasing the states than he was in granting this right since the states never would have ratified the Constitution without it.
Well, Justice Breyer is probably right, but it's not exactly an OMG revelation as much it is a DUH moment. Most of the men we know as the "Framers" of the Constitution were not only opposed to adding the 2nd Amendment to the Constitution, they were opposed to adding the other nine amendments in the Bill of Rights as well.
Framer Alexander Hamilton wrote in Federalist 84 that a Bill of Rights was unnecessary and even dangerous. He believed the Constitution inherently granted all of the rights that were needed and that with specific powers granted to the government there was no authority written into the Constitution that would deprive individual and states rights.
Ultimately, the Federalists gave in to the Anti-Federalists and to some rights-friendly Federalists like Jefferson and agreed to work immediately on a Bill of Rights once the Constitution was ratified. The truth is the states would not have ratified the Constitution without a Bill of Rights. Including the entire Bill of Rights - all ten amendments - was thus an appeasement to the States (and to the people too).
So, by Justice Breyer's logic, the Framers would not have supported even old favorites like the First and Fifth Amendments because they too were appended to the Constitution to appease the States.
That's the danger of referring exclusively to the words of Framers like Hamilton and Madison when interpreting the intent behind the Constitution's words. There are several parts of the Constitution - important parts like the Bill of Rights - that the Framers were generally and specifically opposed to. Many of these were added not because the Framers wanted them, but because the people wanted them.
Supreme Court justices like Justice Breyer have been too reluctant to cite the intent of the people in the framing of our Constitution and have relied on the words of the Framers, even when Framers' arguments didn't carry the day when our government was formed. In doing so, some of today's justices ultimately do something not even the Framers did in their day: write law based only on Framers' intent.
