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Stephen Breyer Takes a Stab at Originalism: Hilarity Ensues

I have read enough of his opinions to know that Stephen Breyer is not an idiot. However, despite any protestations to the contrary he might make, he undoubtedly is a partisan. And his partisanship leads him down paths that require him to engage in intellectual dishonesty, which serves to make him look like an idiot far more often than he shoud. For example:

Appearing on “Fox News Sunday,” Breyer said history stands with the dissenters in the court’s decision to overturn a Washington, D.C., handgun ban in the 2008 case “D.C. v. Heller.” 

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms

Here we have a Supreme Court Justice appearing on television to spout some truly moronic tripe. Even if we grant Breyer’s characterization of the history with respect to Madison (and I gather that this is a subject of some debate), that does not at all lead to the conclusion that therefore, the founding fathers would have been fine with the DC gun ban at issue in Heller.  In fact, the number of logical leaps and bounds (over yawning chasms of total and utter nonsense) required to get from Point A to Point B in this circumstance are so numerous that only an idiot would make the attempt. Or, in this case, a partisan desperate to appear nonpartisan.

Nevertheless, the substance of Breyer’s arguments aside, I find Breyer’s sudden solicitousness for utilizing history in interpreting the constitution to be refreshing and hope that it will continue:

“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.

Alright, Steve, let’s make a deal. We’ll concede your point that the history should be dispositive on the issue of handguns and the Second Amendment, if you’ll concede the point that absolutely no one will seriously suggest that the founding fathers had abortion in mind when they wrote the Fourth Amendment. We’ll disarm our emanations and penumbras if you deep six yours. Deal?

Of course, I don’t think for a minute that Breyer is going to start taking constitutional history seriously as a universal proposition, or even that he really cares about the history surrounding the Second Amendment. The simple truth here is that there is no tool that a partisan hack will not summon to his side if his party requires it.

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