The following is drawn from Justice Breyer’s forthcoming book Making Our Democracy Work: A Judge’s View, to be published by Knopf in September. In that book Justice Breyer uses examples drawn from the Court’s history to show how its members have approached decisions in difficult cases. In this excerpt concerning a 2008 case, District of Columbia v. Heller, Justice Breyer seeks, as he has written, “to explain why judges who interpret the Constitution cannot rely simply upon history. They must also examine values and reconcile competing values by determining whether a restraint is proportionate to need.” The excerpt is based solely on the written record of the case, which can be found in full at www.supremecourt.gov.
The Second Amendment says, “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.” Meanwhile, the District of Columbia passed a law in 1975 forbidding possession of handguns, loaded rifles, and loaded shotguns within the District. In 2008 the Court had to decide whether the District’s law violated the Second Amendment and held 5–4 that it did. The Court majority and the dissent disagreed both about the values that underlie the Second Amendment and about how they apply in today’s world.1
Second Amendment Values
What values underlie the Second Amendment? What is the amendment’s basic purpose? The majority found those values and purposes in the words “right…to keep and bear Arms.” To determine what our eighteenth-century founders might have thought about the nature of the right and its specific content, the majority examined early legal sources, including writings of the eighteenth-century legal scholar William Blackstone and books and pamphlets reporting fear among seventeenth-century English Protestants that an English Catholic king would disarm them.
This historical examination led the majority to conclude that in the eighteenth century an individual’s right to possess guns was important both for purposes of defending that individual and for purposes of a community’s collective self-defense. It then determined that the framers intended the Second Amendment to protect an individual’s right to keep and bear arms not only to effectuate the more general right to maintain a “well regulated Militia” but also independently as an end. For the majority, history, not militia-related purposes, would define the right’s scope.2
The dissenters (of which I was one) focused on the words a “well regulated Militia, being necessary to the security of a free State.” In our view, that language identifies the amendment’s major underlying value. Its purpose is to ensure the maintenance of the “well regulated Militia” that it mentions. The dissenters’ own examination of eighteenth-century American history convinced them that the framers wrote the amendment because Article I of the Constitution granted Congress extensive power to regulate state militias and to “employ”…
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Copyright © 2010 by Stephen Breyer