Last night Charlie Rose interviewed Justice Breyer. Breyer can be wordy and it's rare for any Justice to talk in any detail about cases, but the last 10 mins were really good. Charlie asked "What does the second amendment mean to you?" Here's Breyer's answer:
It 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." What did I think it meant and John Stevens thought it meant and Ruth Ginsburg thought it meant and what David Souter thought it meant.
In article one of the Constution it gives to Congress the power to call up and regulate state militias. There was a lot of concern, if you read the Federalist Papers you just get a feeling for it; there was a lot of concern and fear that congress might do that, and disband them. And replace the state militias after they had disbanded them with a federal army. And that, many people said vote no on the constution because if they can do that, then they can, the federal government, destroy your freedom.
Well said Madison, in a sense if I paraphrase him, 'never fear we will put in the constution an amendment which says congress can't do that'. It cannot call up and disband the state militias. Why? Because, a well armed militia is necessary for a free state, ie a state militia. And therefore the right to keep and bear arms shall not be infringed. In other words they're talking about that. That's what I thought they were talking about. Which is not the right of an individual to keep a gun next to his bed. Okay?
That's perhaps the most succinct refutation of Heller I've read. His next answer on how he and Scalia approach decisions differently is equally good.
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