Justice Breyer has been a true gift to our country! I hope he enjoys a long & healthy retirement! His audiobook reading is a true education on document interpretation.
Contrary to some of the commentators below, I am in awe that such a brilliant man had been on our Supreme Court.Simply put: I admire his brain. In this context, I 'd heard one of the debates between Justice Breyer and Justice Scalia and remember thinking: Although Justice Scalia was considered the brainiest mind on the Court, to me he paled next to Justice Breyer. Of course, Justice Breyer is and has been much humbler than his friend, Justice Scalia, who, to be perfectly frank, always acted as though he was eating heavenly wisdom for breakfast , such that no other justice on the court was privy to. I have not changed my mind on either of them, and prefer Breyer to Scalia any time. Thanks, Justice Breyer and Jessica Levinson. It was wonderful!
Judge Breyer has always impressed me as abright star fair and open minded. High praise. However my opinion is thst he rrmains theoreticalans abstract. Now we need clear practical judgements for the country not for mwho they are" His words
"Textualism" doesn't FAIL -- it is a scam by means of which to IGNORE legislative history, where one finds the INTENT of a Constitutional amendment or a statute. It has always been, until the scams of "textualism" and "originalism," that resolving questions about a law that couldn't be resolved solely from the text of the amendment or statute required one to refer to the Congress's paper trail leading to the amendment or statute. As long as they can avoid the intent, they can make up their own pseudo-intent. Thus, as example, the only way to find an "individual right" in the Second Amendment is to ignore the Congressional Debates of those who WROTE the Amendment. _____ _Refuting the NRA's Two Second Amendment Lies_ The gun industry's ppropaganda arm NRA tells two lies about the intent of the Second Amendment. 1. That the Second Amendment protects an "individual" "right" to possess guns. Comparison with the several prior Supreme Court decisions, and the legislative history -- the Congress' Debates of the writing of the Amendment, which are LEGAL AUTHORITY -- shows that Scalia's _Heller_ decision is an outlier. In _Heller_ he falsely held that the Amendment protects an individual right -- for which he was excoriated by legal experts across the political spectrum for ignoring this adjudicatory standard: When a conflict over the interpretation of a law cannot be resolved within the text of the law, one reverts to the legislative history of the law -- in this instance Congress's Debates of the writing of the Amendment. The facts from those Debates: The purpose of the Amendment was to establish a National Defense, relying on the well-regulated Militia, as substantiated by the Militia Act of May 8, 1792: "An act more effectually to provide for the NATIONAL DEFENCE by establishing an uniform MILITIA throughout the United States." The Militia is not an individual; it is a public institution and an arm OF gov't, regulated and governed under both Federal and state constitutions and laws. The Amendment is irrelevant to the issue of private, individual gun ownership: James Madison is called "the father of the Constitution," and the gun industry, via is propaganda front NRA, claims that Madison wrote the Second Amendment. If both of those are facts, then the word "people" is consistent in meaning from the beginning of the Constitution to the end of the first 10 Amendments. The first three words of the Constitution are "We the people," not, "We the individual". This is the first draft of that which the gun industry/NRA calls the "Madison" Amendment, which became became the Second Amendment -- but which it never quotes. [In brackets I clarify it for the logic-impaired]: "The right of the people [PLURAL] to keep and bear arms [this phrase is the well-regulated Militia, and was drawn from four state constitution Militia Clauses] shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person [INDIVIDUAL] religiously scrupulous of [AGAINST] bearing arms [in well-regulated Militia] shall be compelled [INVOLUNTARY] to render military service [in well-regulated Militia] in person." Source: _Creating the Bill of Rights: The Documentary Record from the First Federal Congress_ (Baltimore: Johns Hopkins University Press, Paperback, 1991), Edited by Helen E Veit, et al., at 12. (This volume is readily available from Amazon.) Note the word "compelled": Militia service was a DUTY -- not a "right". And note the words "people" and "person": if a person -- individual -- claimed "religious" exemption from that DUTY, his case was scrutinized individually. The only "individual" "right" debated regarding the amendment was the last clause -- ": but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." -- That clause is clarified by this provision in the New York constitution adopted on April 20, 1777: "XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times here-after, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth.[FN 13] And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State. "FN 13. This exemption-fee was fixed at £10 per annum by the act of April 3, 1778, organizing the militia of the State." And that clause -- ": but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." -- was obviouly voted down before the proposed amendment was submitted to the states for consideration. Thus the Amendment obviously does not protect "individual" ANYTHING. Only by ignoring not only the existing state laws and constitutions which eventuated in the US Constitution, and the Congress's own legislative history -- the Debates of the writing of the Amendment are LEGAL AUTHORITY -- could Scalia falsely hold that the Amendment protects an "individual" "right". 2. That the purpose of the Second Amendment was to establish a "right" to "take up arms" against the gov't -- which is refuted by the Constitution itself: "Art. I., S. 8., C. 15. The Congress shall have Power To provide for calling forth the Militia to execute [ENFORCE] the Laws of the Union, SUPPRESS INSURRECTIONS, and repel Invasions". And on May 2, 1792, the Congress enacted this Militia Act: "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." And the Founders themselves twice established the precedent on the point: Under the Articles of Confederation, "Shays's" insurrection was suppressed by the state's Militia, reinforced by a DRAFT, and the insurrectionists charged with, tried for, and convicted of, TREASON, and sentenced to death. Under the Constitution -- more than two years AFTER the Amendment was ratified -- the "Whiskey" insurrection was suppressed by Federalized Militia, lead by George Washington, and the insurrectionists charged with, tried for, and convicted of, TREASON, and sentenced to death. The Congress, as a co-equal branch of gov't, has the authority and power to overturn Supreme Court decisions. Overturn outlier _Heller_ and its progeny. PLEASE CIRCULATE INTACT.
@jnangarya519: Believe it or not, I read your entire comment. It looks well researched and, to me persuasive, nd yet neither you nor I should wait for the Second Amendment to be re-interpreted by Congress, for obvious reasons, not the least of which is the mantle of a Super-Sage that the Late A. Scalia has been wrapped in for a very long time. Well done. Thanks. I didn't know most of what you'd written.
Why in God’s name are we listening to Justice Stephen Breyer…he is and appalling 85 years old. Given the logic about Biden’s age currently we no longer can find value in listening to an 85 year old!!!
He is 100% coherent. Someday, some older person may hold the answer that you need desperately. I advise you to disregard them and continue with your demise.
Breyer is in love with what he believes is his intellectual gamesmanship. He is a perfect example of an out of touch ivory tower idealist. Depressing to hear him talk to himself.
Signed copies of Justice Breyer's book can be purchased in this link:
livetalksla.square.site/product/Breyer/694
One of a kind.
Thank you for your service.
God bless 🙏🏽
Justice Breyer has been a true gift to our country! I hope he enjoys a long & healthy retirement! His audiobook reading is a true education on document interpretation.
This justice needs to get off the phucking fence and say what needs to be said for the sake of our very democracy.
Contrary to some of the commentators below, I am in awe that such a brilliant man had been on our Supreme Court.Simply put: I admire his brain. In this context, I 'd heard one of the debates between Justice Breyer and Justice Scalia and remember thinking: Although Justice Scalia was considered the brainiest mind on the Court, to me he paled next to Justice Breyer. Of course, Justice Breyer is and has been much humbler than his friend, Justice Scalia, who, to be perfectly frank, always acted as though he was eating heavenly wisdom for breakfast , such that no other justice on the court was privy to. I have not changed my mind on either of them, and prefer Breyer to Scalia any time. Thanks, Justice Breyer and Jessica Levinson. It was wonderful!
Judge Breyer has always impressed me as abright star fair and open minded. High praise. However my opinion is thst he rrmains theoreticalans abstract. Now we need clear practical judgements for the country not for mwho they are" His words
"A system of Laws, and not of men." -- John Adams.
"Justice and the Rule of Law are to be ABOVE politics." -- John Adams.
Still waiting for him to say something something of substance. Evidently judges have learned to tell stories really really well.
"Textualism" doesn't FAIL -- it is a scam by means of which to IGNORE legislative history, where one finds the INTENT of a Constitutional amendment or a statute. It has always been, until the scams of "textualism" and "originalism," that resolving questions about a law that couldn't be resolved solely from the text of the amendment or statute required one to refer to the Congress's paper trail leading to the amendment or statute.
As long as they can avoid the intent, they can make up their own pseudo-intent.
Thus, as example, the only way to find an "individual right" in the Second Amendment is to ignore the Congressional Debates of those who WROTE the Amendment.
_____
_Refuting the NRA's Two Second Amendment Lies_
The gun industry's ppropaganda arm NRA tells two lies about the intent of the Second Amendment.
1. That the Second Amendment protects an "individual" "right" to possess guns.
Comparison with the several prior Supreme Court decisions, and the legislative history -- the Congress' Debates of the writing of the Amendment, which are LEGAL AUTHORITY -- shows that Scalia's _Heller_ decision is an outlier. In _Heller_ he falsely held that the Amendment protects an individual right -- for which he was excoriated by legal experts across the political spectrum for ignoring this adjudicatory standard:
When a conflict over the interpretation of a law cannot be resolved within the text of the law, one reverts to the legislative history of the law -- in this instance Congress's Debates of the writing of the Amendment.
The facts from those Debates:
The purpose of the Amendment was to establish a National Defense, relying on the well-regulated Militia, as substantiated by the Militia Act of May 8, 1792:
"An act more effectually to provide for the NATIONAL DEFENCE by establishing an uniform MILITIA throughout the United States."
The Militia is not an individual; it is a public institution and an arm OF gov't, regulated and governed under both Federal and state constitutions and laws. The Amendment is irrelevant to the issue of private, individual gun ownership:
James Madison is called "the father of the Constitution," and the gun industry, via is propaganda front NRA, claims that Madison wrote the Second Amendment. If both of those are facts, then the word "people" is consistent in meaning from the beginning of the Constitution to the end of the first 10 Amendments. The first three words of the Constitution are "We the people," not, "We the individual".
This is the first draft of that which the gun industry/NRA calls the "Madison" Amendment, which became became the Second Amendment -- but which it never quotes. [In brackets I clarify it for the logic-impaired]:
"The right of the people [PLURAL] to keep and bear arms [this phrase is the well-regulated Militia, and was drawn from four state constitution Militia Clauses] shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person [INDIVIDUAL] religiously scrupulous of [AGAINST] bearing arms [in well-regulated Militia] shall be compelled [INVOLUNTARY] to render military service [in well-regulated Militia] in person."
Source: _Creating the Bill of Rights: The Documentary Record from the First Federal Congress_ (Baltimore: Johns Hopkins University Press, Paperback, 1991), Edited by Helen E Veit, et al., at 12. (This volume is readily available from Amazon.)
Note the word "compelled": Militia service was a DUTY -- not a "right". And note the words "people" and "person": if a person -- individual -- claimed "religious" exemption from that DUTY, his case was scrutinized individually.
The only "individual" "right" debated regarding the amendment was the last clause --
": but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." --
That clause is clarified by this provision in the New York constitution adopted on April 20, 1777:
"XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times here-after, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth.[FN 13] And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.
"FN 13. This exemption-fee was fixed at £10 per annum by the act of April 3, 1778, organizing the militia of the State."
And that clause --
": but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." --
was obviouly voted down before the proposed amendment was submitted to the states for consideration. Thus the Amendment obviously does not protect "individual" ANYTHING.
Only by ignoring not only the existing state laws and constitutions which eventuated in the US Constitution, and the Congress's own legislative history -- the Debates of the writing of the Amendment are LEGAL AUTHORITY -- could Scalia falsely hold that the Amendment protects an "individual" "right".
2. That the purpose of the Second Amendment was to establish a "right" to "take up arms" against the gov't -- which is refuted by the Constitution itself:
"Art. I., S. 8., C. 15. The Congress shall have Power To provide for calling forth the Militia to execute [ENFORCE] the Laws of the Union, SUPPRESS INSURRECTIONS, and repel Invasions".
And on May 2, 1792, the Congress enacted this Militia Act:
"An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions."
And the Founders themselves twice established the precedent on the point:
Under the Articles of Confederation, "Shays's" insurrection was suppressed by the state's Militia, reinforced by a DRAFT, and the insurrectionists charged with, tried for, and convicted of, TREASON, and sentenced to death.
Under the Constitution -- more than two years AFTER the Amendment was ratified -- the "Whiskey" insurrection was suppressed by Federalized Militia, lead by George Washington, and the insurrectionists charged with, tried for, and convicted of, TREASON, and sentenced to death.
The Congress, as a co-equal branch of gov't, has the authority and power to overturn Supreme Court decisions.
Overturn outlier _Heller_ and its progeny.
PLEASE CIRCULATE INTACT.
@jnangarya519: Believe it or not, I read your entire comment. It looks well researched and, to me persuasive, nd yet neither you nor I should wait for the Second Amendment to be re-interpreted by Congress, for obvious reasons, not the least of which is the mantle of a Super-Sage that the Late A. Scalia has been wrapped in for a very long time. Well done. Thanks. I didn't know most of what you'd written.
Why in God’s name are we listening to Justice Stephen Breyer…he is and appalling 85 years old. Given the logic about Biden’s age currently we no longer can find value in listening to an 85 year old!!!
He is 100% coherent. Someday, some older person may hold the answer that you need desperately. I advise you to disregard them and continue with your demise.
Breyer is in love with what he believes is his intellectual gamesmanship. He is a perfect example of an out of touch ivory tower idealist. Depressing to hear him talk to himself.