Debate Magazine

A Couple of Supreme Court Justices on the Second Amendment

Posted on the 29 January 2014 by Mikeb302000
Let's start with Chief Justice Warren Burger, a Conservative who was Chief Justice from 1969 to 1986:
A couple of Supreme Court Justices on the Second Amendment
Of course, that was before the term "conservative" came to have the meaning along the lines of being out of touch with reality or some kind of idiot in US English.
Next, we have another long sitting Justice, William O. Douglas, who was on the court for 36 years and 209 days (1939–75) which is the longest tenure in the history of the Supreme Court.  He was on the court at the time US v. Miller was decided, but was not part of the panel that heard the case.
The quote is from Adams v. Williams, 407 U.S 143, 150 -51 (1972)
A couple of Supreme Court Justices on the Second Amendment
Time magazine called Douglas "the most doctrinaire and committed civil libertarian ever to sit on the court".  Don't you think that such a person would come out for "gun rights" if such a concept actually existed?
Additionally, wouldn't his being on the Court when Miller was decided give him some sort of insight into the meaning of the decision?
And let's not forget the reference to Aymette v. State, 2 Humphreys 154 (Tenn. 1840) in Miller.  Aymetter says:
     In the former part of this opinion we have recurred to the
circumstances under which a similar provision was adopted in
England, and have thence deduced the reason of its adoption, and
consequently have seen the object in view when the right to keep
and bear arms was secured.  All these considerations are left out
of view in the case referred to, and the court confine themselves
entirely to the consideration of the distinction between a law
prohibiting the right, and a law merely regulating the manner in
which arms may be worn.  They say there can be no difference
between a law prohibiting the wearing concealed weapons and one
prohibiting the wearing them openly.

     We think there is a manifest distinction.  In the nature of
things, if they were not allowed to bear arms openly, they could
not bear them in their defence of the state at all.  To bear arms
in defence of the state is to employ them in war, as arms are
usually employed by civilized nations.  The arms, consisting of
swords, muskets, rifles, etc., must necessarily be borne openly; so
that a prohibition to bear them openly would be a denial of the
right altogether.  And, as in their constitution the right to bear
arms in defence of themselves is coupled with the right to bear
them in defence of the state, we must understand the expressions as
meaning the same thing, and as relating to public, and not private,
to the common, and not the individual, defence.

     But a prohibition to wear a spear concealed in a cane would in
no degree circumscribe the right to bear arms in the defence of the
state; for this weapon could in no degree contribute to its
defence, and would be worse than useless in an army.  And, if, as
is above suggested, the wearing arms in defence of the citizens is
taken to mean the common defence, the same observations apply.

     To make this view of the case still more clear, we may remark
that the phrase, "bear arms," is used in the Kentucky constitution
as well as in our own, and implies, as has already been suggested,
their military use. The 28th section of our bill of rights provides 
"that no citizen of this state shall be compelled to bear arms
provided he will pay in equivalent, to be ascertained by law." Here
we know that the phrase has a military sense, and no other; and we
must infer that it is used in the same sense in the 26th section,
which secures to the citizen the right to bear arms.  A man in the
pursuit of deer, elk, and buffaloes might carry his rifle every day
for forty years, and yet it would never be said of him that he had
borne arms; much less could it be said that a private citizen bears
arms because he has a dirk or pistol concealed under his clothes,
or a spear in a cane.  So that, with deference, we think the
argument of the court in the case referred to, even upon the
question it has debated, is defective and inconclusive.

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