Justice Ginsberg's view of the Second Amendment
"In the wake of the fierce, nationwide debate over gun rights and gun control, Justice Ginsburg also explained the historical basis for her view on the Second Amendment.
"The Second Amendment has a preamble about the need for a militia ... Historically, the new government had no money to pay for an army, so they relied on the state militias," she said. "The states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment."
Ginsburg said the disappearance of that purpose eliminates the function of the Second Amednment.
"It's function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own," she said. "I view the Second Amendment as rooted in the time totally allied to the need to support a militia. So ... the Second Amendment is outdated in the sense that its function has become obsolete."
As for the Heller case, decided by the court in 2008, Ginsburg says the court erred in its decision.
"If the court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new," she said. "It gave a qualified right to keep and bear arms, but it was for one purpose only — and that was the purpose of having militiamen who were able to fight to preserve the nation.""
I won't go into the historical angle (the shortfall of money was one reason for a militia, but it was one almost never mentioned at the time -- the big argument for the militia was that it could be as powerful as desired without any risk of it taking over the government, unlike a standing army), but into the reasoning. One of the many problems with the collective rights view is that its proponents never want to consider their theory's results -- which would be that any State could revive its militia system and presumably arm it as the State pleased. M-4s, SAWs, F-16s. The Justice deals with that by saying that the Second Amendment has become "obsolete" and presumably inoperative in *any* way.
I don't see any precedent (legal or historical) for the Court to simply declare a provision in the "Supreme law of the land" obsolete, i.e., not fitting in with their world-view. There are plenty of constitutional provisions which some might think obsolete. A government which deploys the NSA certainly seems to think the Fourth Amendment obsolete in an age of terror. The $20 threshold on civil right to jury is certainly obsolete, but still followed. How about the right to petition? In early Congresses, each petition was read aloud -- now, I suspect they are given the circular file.
I guess under Ms. Ginsburg's reasoning Eisenhower was wrong to nationalize the Arkansas National Guard to forcibly integrate the schools. After all, if the militia is a check on federal power, how could it Constitutionally be permissible for the President to nationalize it to enforce federal policy against the state?
Posted by: Jeff at October 4, 2013 12:15 PM
Is it really so much to ask, that our Supreme Court justices be educated in the history of our constitutional republic and the history of our Bill of Rights? Self-induced ignorance is not becoming in a justice.
Posted by: Raconteur Duck at October 4, 2013 01:24 PM
The militia clauses of the constitution would have quite adequately served the purpose Ginsburg describes. That cannot be the explanation for a bill of RIGHTS provision. The primary (but not only) purpose of the Second Amendment is obviously to ensure a balance of power AGAINST the government, in the hands of the people. Not to serve the government, but to prevent the government from disarming the people.
Posted by: Critic at October 4, 2013 02:08 PM
So if "the people" in the 2nd Amendment means "the state", does Ginsberg believe that all rights reserved for "the people" are actually rights of the state, not the people? Or does she just assign each instance of a word any arbitrary meaning that fits her desired outcome?
Posted by: Brian at October 4, 2013 03:25 PM
Ginsburg's remarks shows it dawning on the Anti-Gunners, Radical Left, and Team Obama how difficult it is to change or do away with an amendment. I don't believe any of the above have the staying power to make the changes.
Posted by: Mark-1 at October 4, 2013 03:52 PM
She should rember the Holocost!
Posted by: James at October 4, 2013 05:13 PM
One more like her on the SC and we Patriots will all get the ring side seat to see if this great Constitutional Republic will stand.
Molon Labe traitors.
Posted by: Molon Labe at October 4, 2013 05:15 PM
She's saying HER opinion supersedes that of the Founders. They sought to BAN or prevent the "rule of men" over the "rule of law", and this so-called jurist is overstepping her bounds, completely. *And* she's unelected and will make law til she's dead. She and Pres. Obama are hoping that the balance in the Black Robes will tip soon so they can shut down 2A. As said in Planet of the Apes, "Goddamn them (the antis) to Hell!"
Hi to the NSA; you guys are my favorite agency. JK
Posted by: BombsAway at October 4, 2013 07:28 PM
Liberals' view of "the people" in the Second Amendment:
‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’
Posted by: wrangler5 at October 4, 2013 09:25 PM
Her "interpretation" makes no sense whatever. She says, in essence, that the States required the people to be armed to support a militia and the Second Amendment was needed to prevent the States from taking arms from the people.
Posted by: Tom at October 5, 2013 12:09 AM
In any other court in almost any other case, Ginsberg would have to recuse herself in future hearings on this issue. Now all that can be done is to counter her ahistoric and non-textual interpretation. And since when have honorable justices of this court been told that they have the right to interpret the Constitution rather than enforcing it?
Posted by: Eldon Dickens at October 5, 2013 12:40 AM
The Justices and the politicians continue to chip away at constitution until there will be no rights.so what ever form of government that governs ,the first ones to be out of a job will be the SC and the Politicians, most likely they will become political prisoners.Not thinking about the fact that they too have children,grand children,family that will have to live in the oppressed nation and nobody to come to there defense because they to will be subdued,to do the bidding of a tyrannical government.It is the inheritors of the country who will suffer the greatest pain,all because men and women thinking themselves superior think they know whats best for you and i..
Posted by: LB at October 5, 2013 08:59 AM
Are her mental faculties declining? Has she even looked at the Federalist Papers' discussions?
Posted by: Rob at October 5, 2013 09:09 AM
She has a valid opinion that may possibly be correct about the militia. However her fault lies in the fact that she feels it is her right to amend the Constitution from the bench and that is a fault that should immediately disqualify her from any judicial position, appointment or ruling.
If indeed the people agreed with her than it is up to the states to change the Constitution and remove the second amendment. Not her right to legislate it from the bench.
Posted by: Pioneer Preppy at October 5, 2013 10:19 AM
In her reading, apparently the 2nd Am gave the states the power to contradict a 'deficient' federal militia law. But in 1820, the Supreme Court held that federal militia law entirely pre-empts state militia laws, even while expressly conceding that the current federal militia laws were deficient.
It's an important precedent -- Houston v. Moore -- and it pre-dates federal preemption under interstate commerce by four years.
Why is militia caselaw not at the center of the 2nd Am debate? Ginsburg et al should have to defend their theory by reference to militia case law. "Put up or shut up."
Posted by: JNH at October 5, 2013 02:01 PM
When you realize just how high in government the truly ignorant can rise, it's nigh on impossible to retain any respect for government whatsoever.
Posted by: Anon at October 5, 2013 04:31 PM
anon: I have to ask does it feel better when you stop beating your head against the wall? Why would you want to retain any respect they lost any right to it decades ago.
Posted by: Rich at October 5, 2013 06:06 PM
In 1876 US V Cruikshank, the Court stated that the Right to keep and bear Arms was not granted, but merely enumerated in the 2nd. They did err because they relied on Barron 1833 to say the 2nd only bound the Feds.
But Ginsburg has proven she can't read. SOme months ago she stated the the United States were even called thee United States in the Declaration BUT the declaration says thirteen united States of America. Totally of a different meaning.
She is as ignorant as any.
Posted by: fwb at October 5, 2013 06:13 PM
Some States are already starting to work to revive their State Militias, in the next session of the Missouri congress there will be a bill to revive Missouri's State Militia, or State Guard. Seperate from the State's National Guard, that can be called into active service by the US army, the State Guard would be under the direct control of the Governor, and would not be able to be called into Active duty for the US Military. There is at least 4 other States that have submitted bills, or are drafting bills to do the same.
Posted by: Joel Stoner at October 6, 2013 01:18 AM
And to think, this dried up brain dead old biddy sits on the US Supreme Court. Guess she forgot that she is bound by original intent. It is obvious that she fails to understand the Bill of Rights are individuial right, the states or government do not have rights, they have powers. The Bill of Rights preserves what are considered as existing rights, it does not grant rights. Good grief, and to think we pay her salary.
Posted by: rehafner at October 7, 2013 12:02 PM
For the benefit of those who may not know, the Founders of this purely unique and wholly American Constitutional Republic form of government provided a brief statement with regard to their purpose and intent for declaring and enumerating specific ‘Rights’ of all Freemen in the Constitution of the United States.
“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Note: One particular ‘further declaratory and restrictive clause’ added ‘in order to prevent misconstruction and abuse of its powers’ ( ‘powers’:- meaning only those few and expressly limited ’powers’ granted only by consent of ‘the people’ to those within and acting on behalf of the ’Federal’ government ) as follows:
“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.”
Posted by: Gw at October 8, 2013 09:15 AM