Pauline Maier: Justice Breyer’s Sharp Aim

Roundup: Historians' Take

[Pauline Maier is a history professor at the Massachusetts Institute of Technology and the author of “Ratification: The People Debate the Constitution, 1787-1788.”]

WHILE the federal judge who ruled that portions of the health care reform law were unconstitutional made the big headlines, another important constitutional debate was reopened last week by Justice Stephen Breyer during an interview on Fox. He argued that the historical record — in particular, James Madison’s thoughts and writings — supports the dissenters in the 2008 case District of Columbia v. Heller, in which the Supreme Court said the Second Amendment established an individual right to bear arms, and on that basis struck down a District of Columbia ban on handguns.

Conservatives were quick to accuse Justice Breyer of pursuing an activist judicial agenda. Their charges are misguided....

...Madison reassured those who feared Congress’s new military powers, as he had done earlier in Federalist 46. The Constitution said Congress could raise an army and navy. Nonetheless, one of his proposed amendments promised that the people would never be subject to federal military rule because their “right to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country.”

Congress rewrote Madison’s language somewhat — “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.” In 18th-century laws, the preamble (in this case, the first clause) stated the purpose of an enactment. Thus the right to keep and bear arms was granted as a means to sustain that “well-regulated militia.” That’s what Congress meant, and what the states approved.

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