Justice Breyer: The 2nd Amendment is Non-Existent Because Madison Didn’t Really Mean It

Ed breaks apart Breyer’s argument and proves his central point wrong: Madison didn’t include the Second Amendment simply to appease the states. You should go read all of that.

But there’s another point here: Who cares what Madison’s intent was? Who cares why the Second Amendment was added? Who cares what the motivation for its inclusion was? It’s there.

Is Breyer now saying that judges, including the Supreme Court, can ignore rights specifically guaranteed in the Constitution based upon the motivation for their inclusion? That judges can decide explicit rights don’t exist because they weren’t included in good faith? Wow.

To say that’s a dangerous precedent is probably the biggest understatement on this blog. That would mean a judge could decide you no longer have the right to free speech or freedom of the press because, hey, those rights were only included to appease one group needed for ratification.

The rights are there, regardless of why they’re there. All that should matter to a judge is the fact that the rights are there.

Breyer demonstrates that left-wing judges go beyond reading the Constitution. They take the initiative to decide which explicit rights are legitimate based upon the motives of the founders. They travel outside of their duties and powers to legislate from the bench. They have the audacity to decide your explicit rights don’t exist because they don’t like them.

This man is serving on the bench of the United States Supreme Court. Scary.


  1. Rob Crawford says

    Which “justice” was it that announced she supported abortion rights because she figured it was to make eugenics easier?

    Same argument, different subject.

  2. John Davies says

    What I didn’t get is why Madison’s views on what goes into the Constitution should have trumped what the states wanted.

  3. kevino says

    Either the 2nd Amendment was legally ratified or it wasn’t. If it wasn’t, I’d like to hear the argument to the contrary. Since it was ratified, then it exists, and his interpretation of Madison’s original intend is totally irrelevant.

    Now then. Let us turn our attention to the 14th amendment, whose ratification required that the North invalidate elected state government in the South and impose military governments that favored ratification. A very good historical case can be made for eliminating that amendment — and with it, a huge body of liberal laws.

    What idiots the uber-liberals on the SCOTUS are: the Law and Constitution mean nothing. Black letter law is eliminated. White out is applied to the Constitution and history in favor of the Liberal Magic Wand: The Law means what we say it means. Breyer should be impeached.

  4. says

    Well stated, we can only infer what James Madison intended. Whereas we can read the document which the several states ratified. In the world according to Breyer, Madison’s supposed thoughts trump the actual words of the Constitution itself.

  5. kjatexas says

    The only bad thing about Breyer being retired from SCOTUS, is that his replacement is worse. Let’s hope that nothing happens to one of the conservative justices, on the court, lest Obama appoint another justice who is arrogant enough to think he/she knows better than the Founders.

  6. says

    I completely agree with this argument. It applies with equal force to questions about original intent with respect to the Establishment Clause, another part of the Constitution about which there has been a lot of partisan ‘scholarship’.

    Even if Breyer is right that Madison “didn’t really mean it,” which I doubt, the words of the Second Amendment are still there.

  7. Mark30339 says

    Breyer is botching the Madison scholarship so badly that it must be intentional. Perhaps he is developing a “seance” exception to original construction: we can disregard the plain meaning of laws when by seance, ouija board or otherwise we conclude that the framer didn’t really mean it. Breyer’s on to something here — let’s stop paying income taxes because the 16th amendment authors didn’t mean for an income tax that exceeded a few percent and only applied to earnings from property.

  8. Kevin Kehoe says

    This Treasonous Idiot should explain how we are granted Unalienable Rights and then When some of the are listed they do not count.

    We are running out of time, and have only 2 possibilities.

    We surrender or clean house.

  9. Jack Bauer says

    Breyer went on to state that whilst Madison didn’t really intend to have the constitution guarantee the right to bear arms, (only kidding citizens!)…

    What he actually meant was for the 2nd Amendment to guarantee the right to ABORT a baby.

    It’s so obvious when explained by a superior mind such as Justice Breyer.

  10. says

    Hey, this thing is a contract. IF Madison included it against his own wishes to get the other parties to agree and ratify, it’s still a contract. If you negotiate a contract with someone and you get them to include something they did not initially want to include, they cannot later unilaterally “uninclude” that which you both agreed to in writing.

    I think Breyer is trying to skew original intent since he’s recently heard it raised on a number of issues. Well, here’s some schoolin’ for ya, Breyer, Federalist 46. Come git some.


  11. Brad Johnson says

    I thought it was conservative judges who cared about the intent of the founders, not left-wing judges.

  12. J.D.Emerson says

    How did this guy get to be a judge? Either he is beyond stupid or he thinks the public is. This man should be taken off the court now and replaced with someone who takes his oath seriously. He is a good example as to why we the people need to be armed, to stop government from shoving this kind of crap down our throats. God help us and protect us from evil people like Breyer, amen…


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