Judge Stephen Breyer’s Dumb Rhetorical Question

From the McDonald ruling:

If you don’t believe me you can CTRL+F for it HERE


Dave June 30, 2010 at 12:47 am

Justice Breyer’s whole dissent is bad. This is only the tip of the iceberg. Worse yet is that he was joined by Sotomayor and Ginsburg.

For that matter, why does it make any difference to him? He need not dive into the minutiae of guns to make a decision on whether or not the individual right to own a weapon exists. Talk about missing the forest for the trees.

Thank god the right is now incorporated. It cannot now be taken away without a Constitutional Amendment. Imagine if it had not been, the field day people would be having with gun rights would be unconscionably bad.


Evan June 30, 2010 at 10:27 am

I agree with Dave. Justice Breyer has no real dissent other than his opinion, so to make up for his lack of substance, he attacks the incorporation through tangential semantics and hairsplitting.


Nathaniel June 30, 2010 at 11:21 am

Yep, I noticed this myself. For an even worse whopper by Stevens, take a look here.


Josh June 30, 2010 at 12:14 pm

I’m going to go ahead and take a less popular position on this one because I like to do that, and I’m not sure anyone else will.

First, I think this particular line is inappropriately shown out of context. This was one of many rhetorical questions all lumped into the same paragraph illustrating the vagueness of saying that the second amendment applies to a person’s right to self defense. He was pointing out that there is a lot of ambiguity in that statement – as he said, where does it end? Does it apply outside of your home? Does it apply to all types of firearms? To convicted felons as well? These are all questions that are going to come up in litigation now, as lower courts try to determine the scope of this new ruling.

His points there, and throughout his dissent are not without merit. I am certainly in no position, nor do I possess sufficient legal background, to so casually dismiss his dissent as irrelevant, as others seem to want to do. Evan says that Justice Breyer has no real dissent other than his opinion. That’s what his dissent is supposed to be, his opinion. If you read that whole document, it’s called – The Opinion of the Court. After the majority OPINION, justices wrote their concurring and dissenting OPINIONS. His dissenting opinion seemed well-reasoned enough to me; I would certainly not accuse him, after reading his dissent, of making anything other than an opinion based on years of legal education and experience. Undoubtedly, personal feelings and experiences play a role to some degree in any justice’s decisions.

To the actual question (a rhetorical one, mind you) of what is a semi-automatic weapon – It seems rather straightforward, or should, to those of us with more knowledge of firearms than the average person. But as I thought about it, I realized that I didn’t know what the precise definition was. Nathaniel, in your response to Breyer’s comment, that you linked to in your post, you stated, “Hint for Breyer: a gun is semi-automatic when you pull the trigger and one bullet comes out, and then when you pull the trigger again, another bullet comes out.” That’s not quite correct. As I thought about it, that was my initial thought as well, but then I realized that if that were all there was to the definition, revolvers would surely be included.

The actual definition of a semiautomatic weapon (rifle, pistol, shotgun) is: “Any repeating [weapon] which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.” (Found in 27 CFR §478.11)

Perhaps it’s not an irrelevant question after all, although I think the main point is that it was a rhetorical question, buried in with many others, meant to illustrate the point that saying the second amendment applies to the states because of an inherent right to self defense is quite possibly too vague. All of those questions about where the right to bear arms applies, to whom it applies, to what types of firearms it applies, etc. will all have to be answered, undoubtedly by decisions in lower courts.


Nathaniel June 30, 2010 at 12:35 pm

You’re right, Josh, and my explanation probably should have read “…when you pull the trigger and one bullet comes out and one cartridge is ejected…”

Still, I think the point stands that the definition of semi-automatic is solid and fact-based. It’s not something mushy and squishy; either a gun is semi-automatic, or it isn’t. Just because the answer requires some research or thinking to arrive at, doesn’t make it a rhetorical question any more than the question of “how much RAM does your computer have? would be rhetorical to someone unfamiliar with computers. Even if it’s difficult to understand if you’re not well-acquainted with guns, you have an absolute duty to if you’re going to be making law on the issue.


Josh June 30, 2010 at 01:02 pm

I agree with you that there is an established definition of “semiautomatic,” and that question probably should have been omitted. However, you’ll notice that immediately preceding that question were the questions, “What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons?” I think it might be possible that he included that question, knowing that there is a definition, to illustrate the point that there are many questions, some of which don’t yet have answers. After all, a rhetorical question can certainly be used, when you know the answer, to illustrate your point.

I think pointing it out is much ado about nothing. And I especially think trying to use that rhetorical question, taken out of context, to try to undermine the legitimacy of his dissent is a cheap and inaccurate shot at it.

EVEN IF he didn’t know what a “semiautomatic” weapon is, it is immaterial to his statement. You said “Even if it’s difficult to understand if you’re not well-acquainted with guns, you have an absolute duty to if you’re going to be making law on the issue.” I don’t disagree with you on that, but the court is not making laws here. The legislators have a responsibility to understand what a semiautomatic weapon is when they make law that deals with them. The Supreme Court is making determinations on broader issues of constitutionality of law, not specific and technical details such as what the criteria for “semiautomatic” is.


Nathaniel June 30, 2010 at 01:34 pm

You’re right that the context is a paragraph full of rhetorical questions, such as “Does it apply outside of your home?” But I think we can all agree that it would be silly if he then asked, “Did the M1911 pistol really debut in 1911?”, because that question has a clear answer and it’s not at all rhetorical, so it has no business having snuck into a paragraph full of rhetorical questions.

If his point was to illustrate that there are questions that don’t yet have answers, then “when is a gun semi-automatic?” does a very poor job of illustrating it, as it has a clear and factual answer. It’s also the only question that has an answer at all, as his other ones are inherently philosophical in nature. Who can really say what guns are “necessary” for self-defense or if the Heller right extends outside the home. In these questions, he is correct that the plurality has given very little guidance to the lower courts.

The whole paragraph from which this statement was taken is making the point that lower courts will now have to answer those questions for themselves to determine the constitutionality of things like carry outside the home or ownership of different types of weapons. But by including “when is a gun semi-automatic?” in that paragraph, he is implying that it’s a legitimate question that the lower courts have been left to wrestle with.

…Which is totally wrong for two reasons. First, as you said, lower courts shouldn’t even be concerned with technical questions of that nature. And second, because it is easily answerable by consulting a freaking dictionary! That’s my point; that even if a lower court asks that question, it should easily be able to answer it without having to get all philosophical.


Dave June 30, 2010 at 02:08 pm

If you will, then, I will submit one of his most asinine points along with its obvious refutation:

From Breyer’s dissent:

“Third, the ability of States to reflect local preferences and conditions—both key virtues of federalism—here has particular importance. The incidence of gun ownership varies substantially as between crowded cities and uncongested rural communities, as well as among the different geographic regions of the country. Thus, approximately 60% of adults who live in the relatively sparsely populated Western States of Alaska, Montana, and Wyoming report that their household keeps a gun, while fewer than 15% of adults in the densely populated Eastern States of Rhode Island, New Jersey, and Massachusetts say the same.”

Come now, Justice Breyer. Your examples of Massachusetts and New Jersey are cherry picked to the extreme. Those two states have some of the most onerous restrictions on firearms in the entire Union. The Brady Campaign rates them as 2 and 3, exceeded in restriction only by California. As for Rhode Island, it’s surrounded by Massachusetts and Connecticut, who comes in 4th place on the Brady Campaign’s scorecard.

Of COURSE they’re going to have substantially lower rates of ownership. It’s a miserable pain in the butt to even get a firearm, which is what this case was all about. And THEN he compares them to the three least populous states? It’s breathtaking in its blatant disingenuousness. And what’s worse is that this was joined by Sotomayor and Ginsberg. Wow.


Josh June 30, 2010 at 03:06 pm

He also cherry picked the states with large rural populations to show the differences. You can’t honestly tell me that you don’t think there are differences in preferences of firearm ownership between states or localities with very rural populations and those with predominantly urban populations, can you? I grew up on a farm in Iowa, and I know that the percentage of households that have firearms differs between the rural, farm areas and the larger communities and cities. Even without restrictive laws, I think there is naturally going to be a disparity there.

The greater point – that there are differing feelings in different locations, and it should be up to them – is certainly not a completely invalid point. It was not the intention of the authors of the Bill of Rights to restrict the states; it was to apply only to the federal government.

Now, let me clarify myself a little. I am the owner of several firearms. I’m a combat veteran; former infantryman and paratrooper. I appreciate firearms, I shoot them for fun occasionally, I go hunting occasionally, and I keep them for the interdiction of unwanted pests. I think responsible, reasonable adults should be able to keep a firearm in their home for sport or protection, provided they do nothing irresponsible with it.

With that in mind, I am pleased with this decision because it will surely help keep private firearm ownership by responsible citizens legal, and help fend off unnecessarily restrictive policies and regulations. That being said though, Justice Breyer, in his dissent, makes some valid points. I’m certainly not sure that I agree that the second amendment has anything to do with the right to keep firearms for self defense. Certainly, it applies to the right of citizens to own firearms, but for defense against an out of control government, not against other citizens. And certainly at the time, the founding fathers could not have foreseen the need for the type of personal defense that firearms are now used for. With inaccurate single shots, they might well be used more often as clubs in a self defense situation! Similarly, they would be wildly less effective than today’s weapons for use as offensive weapons by criminals.

Above all, I guess I just see it as wrong to try to minimalize Justice Breyer’s opinion. I think he makes valid points; it’s not just some rant without substance. And I think there are two very important points to keep in mind. First – this ruling was extremely vague; there’s a lot left to figure out, and I’m curious to see how, if at all, this will affect the majority of gun owners (who don’t live in areas with very strict regulations that prohibit, or effectively prohibit, gun ownership). And second – it was a 5-4 decision. Justice Breyer was not the lone dissenter, in disagreement with everyone else. There were three other justices who disagreed with the majority opinion. It seems to me that bashing the dissent is a bit like bashing the team who narrowly loses the Super Bowl. The losing team is not a terrible team; they just got edged out for the win. Similarly, the dissenting opinion is not without merit, and is certainly not irrelevant, from a legal standpoint, in this decision.


Ash July 4, 2010 at 10:16 pm

I have to agree with Josh and say that a one-line out of context quote from Breyer doesn’t contribute anything to the discourse.

To challenge your definition of ‘semi-automatic’ along the lines of the rhetorical question asked by Breyer – how does a double barreled shotgun with a single trigger meet those criteria? You pull the trigger, two ‘bullets’ come out but no cartridges are ejected.



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