Thoughts on Justice Breyer on the Second Amendment

It's kind of funny that the Cathloics on the Court are the ones who take a more Protestant view of the constitution :)

Amen, brother.

This is really interesting, and I'd like to read Levinson's original explanation. It looks like this theme shows up in more than one of his articles or books. What's the best source?

Sandy's book, Constitutional Faith, is one of the best legal reads of all time. Every lawyer should read it. Actually, everyone who is interested in the law (which should be everyone) should read it.

In the late-1990s I started work on a book about Second Amendment intent, a project that was abandoned after the Fifth Ciruit's U.S. vs Emerson decision in 2001. Reasons for writing the book included all of the points listed under the "Catholic" view above.

The book's planned title was The Priesthood of the Law.

My book which will cover a number of aspects of the 1792 militia act and its effects will be out next year (I still hope). A copy is reserved for Mr. Hardy to review, but I doubt I'll be sending one to either Breyer or Ginsberg (who has also made some recent statements about a Heller reversal). I emailed a copy of the 1792 Act to Breyer during Heller when he misquoted it during one of the argument sections. And his quoting of Hicks in his dissent was another case of him trying to rewrite history.

By the way, its the Catholic constitutionalists view that breyer is holding to. Its the view that the original Miller case and Arvers Vs United States was correct and all interpretations of law must now bow to these rulings which include that the 1792 Act was abandon at birth and the 2nd Amendment is a collective right (now advanced under Stevens Dissent to include all ten initial amendments being collective in nature). Its the protestant view that the document has been miss-read on these early 20th century rulings and we need to rediscover the true meaning of militia and the intent of the 2nd according to the founding fathers. Thus, Miller falls in Heller and McDonald.

Breyer included some comments about what constitute arms to support restrictions on ownership of machine guns, etc. How did the existence of privateers during the revolution owning the most powerful weapons then available square with such a restrictive approach?

Also militia consisted of more than just infantry with rifles. How did the militia act account for ownership of heavier weapons and the weapons stocks of individual militia companies? What was the ownership of the naval militia?
I only ask these questions as they relate to non-state ownership of weapons and refute claims that 'arms' were limited to rifles and pistols.

I think it's even more basic than that - you have a "Catholic" interpretive structure (the judiciary) tasked with interpreting the text in a nation generally used to "Protestant" modes of interpretation.

My way:

Between the Creator and the created, who is the Boss, that is, who is superior?

My answer: The Creator.

Between the Constitution and We the People, who is the creator/boss?

My answer: We the People. We the People are superior and the Constitution is OUR subordinate.

Between the Constitution and the three branches of government, who is the creator/boss?

My answer: The Constitution is superior and the government is subordinate.

The subordinate cannot define the superior. Don't understand, go tell YOUR boss (or wife) what their job is or who's in charge.

Since the branches of government are all subordinate to the Constitution, they have absolutely no authority to "interpret" the Constitution. If they did then the Constitution would be a moot, worthless piece of paper. If any subordinate branch has the authority to define even a single word, then they can define all the words and the words meant to control them become "meaningless".

Hamilton (another piss ant) wrote of this under fundamental law theory, that the subordinate cannot say what the superior is/does/can do.

Mine is a simple, straight forward,, and easily explained concept. The Boss is in charge. The Constitution MADE the government and allowed very specific powers to each piece. The People through their States made the Constitution because only the People have that authority.

Whether one believes in creation or evolution, one must admit that first there was the individual and that individual held all sovereignty over himherit-self. Once a second individual arose, it became necessary to transfer some sovereignty to a group BUT everything not transferred was retained. Then groups joined into clans/families/small societies and transferred some of each group's limited power to the larger group, retaining a set of nontransferred powers. Finally a number of large groups with their limited set of powers joined together and transferred a small portion of the groups authority to a much larger group, i.e. a government. The government held a subset of the societal powers which held a subset of the clan/family powers which held a subset of the individual powers.

The ONLY reason for the "catholic" view is to steal power from the true sovereigns, the individuals who make up We the People.

Remember Lord Acton. NO ONE is immune from corruption.

Thanks David for posting about the book. I shall get one ordered today.

The arms of privateers were supplied by the company that fit the bill for equipping the ship. All the cannon were the property of the corporation, not the captain or the crew members. And most of the handguns on board were also ship property, not the property of the crew.

As for the Naval militia and their galleys, again the ship and the heavy ordinance are the property of the State that formed the unit. No differently then the cannon used by militia artillery was supplied by the State or loaned by the Federal government. As noted in the 1792 Militia Act, Section 4, under artillery ordinance, "The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with cartridge-box to contain twelve cartridges; and each private or matross shall furnish himself with all the equipements of a private in the infantry, until proper ordnance and field artillery is provided."

Key word is "provided," not that the men purchase or furnish themselves as is required of the light infantry arms mnetioned. No one expected individual men to buy a large cannon given the single piece cost of such an arm. In the same regard what does one person do with a weapon that requires four men to move and or operate. Even the single owner of a large ship can't fire all the cannons by himself, and reload them, while sailing the ship.

Of course, the Constitution is a human document. The Faith is not of human origin, so the analogy is not quite exact.

“The Faith began on Pentecost. Its “Constitution” (the Bible) was written and compiled over the course of the next decades or more. Our current government and its “Bible” (the Constitution) both came into effect on the same day.

The "Catholic" view of “The Faith” is: interpreting and explaining the Faith is a duty assigned by our Lord and Savior Jesus Christ to His apostles. This Authority has been passed down in turn to holy men in each subsequent generation. These guardians, protected by the power of the Holy Spirit given to them by Christ are entrusted with a unique responsibility to interpret and explain the Faith. The Catholic Church teaches that the Holy Spirit prevents the successors of the Apostles from error when interpreting and explaining the Faith.

The Constitution can only work if its interpreters spring from a good society, a corrupt society will subvert the document. Our Constitution, good as it is, is not protected by the Holy Spirit!