Federalist No. 46: Madison's brilliance
In Federalist No. 46, Madison calculates (quite accurately, BTW) that the new government could support a standing army of no more than 25,000 men, and
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. . . . Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
A useful quote, of course. But look at the brilliance of Madison's strategy....
The debate had, until then, been standing army vs. militia, and the federalists were getting the worst of it. The Constitution allowed Congress to form an army with no limitations save that it had to be funded no more than two years at a time (a carryover from British law) and Americans were seriously worried about a standing army (which might just take over the country, or be used by the national government to do so) and strongly supportive of defense by militia instead.
Federalist 46 deals with the issue in imaginative and brilliant form. Madison argues that standing army vs. militia is a false dichotomy. The nation can have both, and it is precisely the militia that makes the standing army a safe thing to have. Let Congress form the largest army it can possibly create, and it would still be greatly outnumbered by armed citizens answering to State-appointed officers. Madison thus neutralizes a key antifederalist argument, and demonstrates that the Army clause of the Constitution is no danger to freedom.
This of course doesn't do much for the "National Guard = militia" claim. With the dual enlistment requirement, Guardsmen must enlist in the regular Army (or other branch) Reserves. When he calls them to duty, the President doesn't use the constitutional power to call out the militia (I'm not even sure the statute implementing that power is still on the books), but legislation enacted pursuant to the Army clause.
"...officered by men chosen from among themselves,..., and united and conducted by governments possessing their affections and confidence."
1) The leadership of the militia is self-appointed, and requires no governmental involvement, or approval.
2) Governments which do not possess their affections and confidence might exist, and could be opposed by the militias.
It would seem then that even the 'Commander-in-Chief' would not have authority over said militia.
Militia, as constructed, is a voluntary gathering of armed people, created from the people, not the government. Without individual rights to arms such a militia cannot be created.
To those who claim National Guard as the heir to 'militia' I say the Second Amendment was not repealed, but States Rights were (by the force of the Civil War), and so today's National Guard cannot meet the definition of militia. Furthermore, I hold that even the state governments do not hold jurisdiction over the militia, and thus that even state laws prohibiting private firearm ownership should be violations of the Second Amendment.
Posted by: Glenmore Shelton at April 4, 2005 04:53 PM
Although the Federalist papers are a very good source for understanding the Constitution, they are woefully inappropriate for understanding the Bill of Rights, since they were authored before the Bill of Rights were drafted and were written to convince people to ratify the Constitution without a Bill of Rights. See, The Federalist Papers, No. 84.
The key to understanding the 2nd Amendment is in the writings of those who opposed the Constitution. It was their objections and concerns which led directly to the adoption of the Bill of Rights and, of course, the 2nd Amendment.
Posted by: Legal at April 5, 2005 03:14 PM
so, when exactly did our "rights" become priveleges? it sounds alot like the federal govt. has (with no small aid from voter apathy)basically overidden the american public's greatest weapon against them. i've always heard the 2nd amendment was basically a provision for "squirrel hunting". how has this load of crap come to pass. i refuse to believe that it's "gang violence", or other crime. who would be stupid enough to pay thousands of dollars for an automatic weapon, and then perform a "drive-by" with it. although we're given the right to keep and BEAR arms (am i correct in assuming this means to use said arms in accordance with Jimmy's idea?) AGAINST A TYRRANICAL GOVERNMENT; the same government is slowly, but surely whitling away the populaces ability to compete equipment-wise with the very force that is often used to "quell uprisings". i'm not saying soccer-moms should carry AT-4 missiles, just that we as americans are revolutionary by nature, and that we really should PAY MORE ATTENTION TO WHAT OUR GOVERNMENT IS DOING IN OUR BEST INTEREST!!!!!!
Posted by: chris at September 4, 2005 09:44 AM
I think your analysis is spot on.....thank you for such a thoughtful examination
Posted by: jim at February 27, 2009 03:59 PM