The Meaning and Function of The Militia: Analysis of Hamilton, Jay and Madison’s Federalist Papers
Executive Summary
- The term militia is crucial for interpreting the 2nd Amendment.
- This article covers the Federalist Papers for the passages that include the term militia.
Introduction
The 2nd Amendment to the US Constitution is tremendously contentious in the US. The term militia figures prominently in the 2nd Amendment. On is often instructed to go and check how the term explained in the Federalist Papers that were written mainly by Alexander Hamilton in 1788, which is three years before the Bill of Rights.
Our References
See our references for this article and related articles at this link.
The 2nd Amendment
The 2nd Amendment to the constitution says the following:
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.
The problem with the wording of this Amendment is that it makes bearing arms dependent upon a militia. So let us see what Alexander Hamilton thought of the term militia. But first, let us review the reason the Federalist Papers were written.
The joint work of Alexander Hamilton, James Madison, and John Jay, The Federalist papers were written to defend and explain the recently drafted Federal Constitution, and promote its ratification in the state of New York. Published seriatim in New York City newspapers from October 1787 to August 1788, the eighty-five essays appeared under the pseudonym “Publius,” a legendary founder of the Roman republic and “friend of the people.” If measured by the large majority of Antifederalists elected to the New York ratifying convention, the project was not a success in its immediate aim. Once the Constitution was adopted, however, the papers – collected and bound – were soon recognized as a tour de force of political reasoning and elevated to the status of a classic. George Washington correctly predicated that The Federalist would “merit the notice of posterity,” while Thomas Jefferson called it “the best commentary on the principles of government which was ever written.” More than two centuries later, it is still regarded as the leading commentary on the Constitution and America’s greatest contribution to political science. – Quentin Taylor Resident Scholar Liberty Fund, Inc. Indianapolis, Indiana
I will cover later how Jefferson had a conflict of interest in advocating for what is mostly Hamilton’s work.
Militia Quotes from Federalist No. 24 – Powers Necessary to the Common Defense Further Considered (Alexander Hamilton)
Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature.
This is the only place in the Federalist Papers where the issue of the use of the militia against Indian attack is addressed.
It is an important point and one of the reasons that even in the colonial period, every able-bodied man was required to have a firearm in good working condition. The authorities knew that armed men on the frontier were essential to defending against Indian attacks. Here we have clear support for the right to keep and bear arms that primarily defend the state. Yes, it protects the individual, but the state supports the arming of citizens because Indians were an everpresent threat to the colonies and later the United States.
Militia Quotes from Federalist No. 28 – Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered (Alexander Hamilton)
Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice.
This suggests that while a militia is essential for defense, a national military would be required in the event of war. Some background here is that the militias performed very poorly during the Revolutionary War as is explained in the following quotation.
Anti-Federalists championed the use of militias as an alternative to standing armies. This drew criticism from Federalists who reminded everyone how poorly the militia had performed during the War for Independence. South Carolina Federalist Charles Pinckney confessed he had “little faith in the militia,” while George Washington’s famous quote that “to place any dependence on the militia, is, assuredly, resting upon a broken staff,” reinforced Federalist arguments. – Jeffery Campbell
Now let us return to Hamilton.
Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government.
What is an Insurrection?
This topic of how the insurrections were dealt with during the pre-Revolutionary and post-Revolutionary period is critical to interpreting several different topics around this subject, and I have a separate article on this titled The Revolutionary Elites Double Standard on Insurrections.
Hamilton continues.
Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States? Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union?
This is a confusing section. As I will address later, Hamilton has a problematic habit of asking questions in a document that is supposed to be a definitive guide. Asking questions in such a document is not helpful because it assumes the reader knows the answer. I do not know the answers to Hamilton’s questions.
Militia Quotes from Federalist No. 29 – Concerning the Militia (Alexander Hamilton)
THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
So here we have support for the right to keep and bear arms enumerated for the following.
- For insurrection.
- For stopping an invasion.
- For the common defense.
- For maintaining internal peace.
Hamilton lists four items. However, upon analysis he has duplicated two items twice. #1 and #4 are the same thing. Putting down insurrections and maintaining the peace are the same. And #2 and #3 are the same thing. Stopping an invasion and providing for the common defense are the same thing.
Hamilton continues.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.” Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.
There is a significant inconsistency in this statement.
Suppose one of the points of the militia is to overturn a corrupt federal government. How can the militia be
“confiding the regulation of the militia to the direction of the national authority?”
It cannot.
And it means there would be no overturning of the federal government in Thomas Jefferson’s phrasing.
What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure. – Monticello.org
What should be noted, however, is that Jefferson and Hamilton differed on virtually every topic.
The following shows a disagreement in how the banking in the US should be set up between Jefferson and Hamilton. Hamilton, who became the first Secretary of the Treasury and set up the First Bank of the United States, won that argument.
Here are a few quotes on Hamilton by Jefferson.
“Hamilton was not only a monarchist,” he wrote, “but for a monarchy bottomed on corruption.” It was Hamilton’s corruption- defined by Jefferson as his ability to sway Congress to his will -that most disturbed Jefferson. As he complained to Washington in 1792, Hamilton had at his disposal a “squadron devoted to the nod of the treasury.” Out of the public eye and able to serve their own interests, such men would “form the most corrupt government on earth.” To Jefferson, it was Hamilton and his self-interested friends, not the people, who reigned supreme. – Mount Vernon
And..
This was the first attempt of the private banking interests to take over US money creation. Its charter renewal was blocked in party by the efforts of James Madison. Bank’s stockholders were kept secret initially, but upon dissolution, it was discovered 80% of the stockholders were foreign banks. A major stockholder being the Bank of England that was controlled by the Rothschilds. The First Bank of the United States, championed by Alexander Hamilton, approved by President George Washington, and opposed by Thomas Jefferson and James Madison, was given a twenty-year charter in 1791. – How the Other Half Banks
And..
“The First Bank of the United States was modeled on the Bank of England, and the same private bank against which the colonialist had rebelled. Years later, Jefferson would say that Hamilton had tricked him into approving the bank’s charter. Jefferson stated the following about Hamilton’s bookkeeping “I do not at all wonder at the condition in which the finances of the United States are found. Hamilton’s object from the beginning was to throw them into forms, which should be utterly indecipherable.” – The Web of Debt
Although it should also be noted that Jefferson gave effusive praise to the Federalist Papers — which is odd, considering how much he disagreed with Hamilton. I think some of this effusive praise is not because the Federalist Papers are such great work, but because Jefferson was like Hamilton a federalist. Therefore he lent his credibility to the papers.
Actually, whether the Federalist Papers are a great work is a secondary point to whether they were honest in their explanation of the Constitution and if they were accurate or took unethical liberties to convince the states to ratify the Constitution. I have found several areas where the later US federal government did not live up to its promises in the Federalist Papers, and there is no better example than in the prohibition against standing armies. However, as this is a topic as important as the topic of what is a militia, I have that material in a separate article titled How Did The US So Completely Violate Its Own Constitutional Rules Against Standing Armies?
This topic of the standing army is deeply intertwined with the topic of both militias and the 2nd Amendment. The fact is the militias never served their role after the Constitution was ratified and the defensive role of militias was entirely usurped by a standing army that has been made permanent in violation of the Constitution. It is odd that almost no one seems to know this but the prohibition against a standing army (outside times of war) is indisputable.
This is negative for many reasons, but one is that the strongest support for the right to keep and bear arms is to provide for the common defense. The way the US courts have suppressed militias, individuals could not serve a common defense function even if they wanted to.
The Constitution as an Elitist Document and Power Grab?
It is curious how little is known in the modern era of the suspicions of elitism behind the development of the Constitution. This is illuminated in the following quotation. These are all quotes from the time the Constitution was being discussed.
“Humble” called the Constitution a “direful desease [sic]” that will grant the “600 well born” a “royal government” immune from opposition thanks to a standing army. The dystopian nightmare that “Humble” predicted involved a “standing army, composed of the purgings of the jails of Great Britain, Ireland and Germany…employed in collecting the revenue of this our king and government.” Few Anti-Federalists were willing to reveal their names in the press, but the few who did wrote passionately about a lack of bill of rights. George Mason wrote in a letter published in the Virginia Journal that the United States under the new Constitution would resemble “a monarchy, or a corrupt oppressive aristocracy.” He complained that there were “no declaration of rights” and listed numerous rights that should have been
included: the right to trial by jury, the liberty of the press, and a declaration “against the – Jeffery Campbell
What is curious is that many of the antifederalist commenters in letters refused to use their real names. Why is that? The only reason for this is they fear repercussions for opposing the Constitution in public. Here are more anonymous critiques of the Constitution.
Someone writing under the pseudonym “Cincinnatus” pointed out that “some of the freest republics in the world, never kept up a standing army in time of peace.” In the New York Journal, “Brutus” argued that the Constitution would foster tyranny. He stated that “this form of government contains principles that will lead to the subversion of liberty.” Like “Centinel,” “Brutus” thought the Constitution will “establish a despotism, or what is worse, a tyrannic aristocracy.” He reminded the citizens of New York that “a free republic will never keep a standing army to execute its laws” – Jeffery Campbell
It is curious how in the modern ear we do not hear of the accusations against the Constitution that it was an elitist power grab and that it would subvert liberty. Instead, we are told that the Constitution enhanced our liberty. We also do not discuss what parts of the predictions made by the founding fathers turned out to be true, and which did not. We also don’t discuss and most US citizens do not know that the Bill of Rights was not added until three years after the Constitution was ratified. Just observe all the things that Jefferson, who was a federalist, opposed about the Constitution.
What Jefferson did not like was “the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws,” and trial by jury. – Jeffery Campbell
And it should also be remembered that the federalists opposed the addition of declared rights to the constitution. They only changed their minds upon pressure from the states. However, that is not how the Bill of Rights is presented. The Bill of Rights is normally presented as if it was included with the Constitution and as if it was offered willingly by the federalists and the founding fathers.
This is expanded upon in the following quotation.
Federalists initially dismissed these concerns, “arguing that the Constitution should be allowed a trial period for problems to emerge” before attempting to amend the document.2 As Anti-Federalist opposition grew, especially in key states such as Pennsylvania, New York, North Carolina, and Virginia, James Madison realized that not including a declaration of rights during the convention was a mistake. Rather than risk the Constitution not passing, Federalists agreed that the first Congress would attach a bill of rights. – Jeffery Campbell
Many involved in the discussions thought that Madison was offering the Bill of Rights as a distraction to keep the states from having large sections of the Constitution rewritten, as is explained in the following quotation.
Both factions treated Madison’s amendments with derision. Rather than
addressing legitimate concerns with the Constitution, South Carolina Anti-Federalist Aedanus Burke viewed the amendments as nothing more than a distraction. He deemed them to “be little better than whip-syllabub, frothy and full of wind, formed only to please the palate.” They were “like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage.” Federalist Noah Webster wrote Madison that “from the unanimous declaration of men in several states, through which I have lately travelled, that amendments are not general wished for.” People wanted more substantive changes to the document. – Jeffery Campbell
We have to remember that the federalists won — and history tends to be written through the side that wins, and not the side that loses. And this was predicted at the time, as is expressed in the following quotation.
Whoever agreed to the passage of the Constitution in its current form, “Brutus” argued, would destroy the “only remaining asylum for liberty…and posterity will execrate your memory.” – Jeffery Campbell
Before doing this research, I barely recall hearing about the antifederalists. Furthermore, there are also AntiFederalist Papers, which unfortunately are also written by Alexander Hamilton. It seems odd and a conflict of interest that a very strong federalist like Hamilton would be writing both the Federalist Papers and the Antifederalist Papers.
The following case, which tested the right to assemble a militia, shows how contradictory the US has regarded militias.
In Presser v. Illinois, 116 U.S. 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.[68][212]
At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right “cannot be claimed as a right independent of law”.
This decision upheld the States’ authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.[68] However the court said: “A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force.” – Wikipedia
Observe this critical sentence.
“citizens had no right to create their own militias or to own weapons for semi military purposes.”
Consider how completely contradictory that judgment was to Hamilton’s description of a militia in the previous quotation. Also, observe the last part of this quote. The Supreme Court’s interpretation is that it would deprive the US of the protection of a reserve military force. This says nothing about the citizens’ protection to engage in an insurrection against a tyrannical US government.
But let us stay on the issue of the court’s disallowance of militias. This is exactly what the Federalists said would occur as is explained in the following quotation.
The nationalization of the militia caused concerns, yet more troubling were the provisions in the Constitution that allowed for Congress to maintain a standing army. This angered Anti-Federalists, who “steeped in the literature of the age knew that this amounted to the creation of a standing army, the dreaded enemy to the liberty of the people.”43 Anti-Federalists attempted to modify or eliminate those clauses. AntiFederalists feared Congress would disarm the militia. George Mason and Patrick Henry of Virginia cited British attempts to seize “the militia’s muskets more than a decade earlier.”44 Federalists responded with an assurance that Congress would do no such thing; it is responsible to the people, and the militia “serve[d] the vital function of providing states with a means to deal with riots and insurrections.”45 This did not placate AntiFederalists, who attempted to introduce rights inhibiting the use of standing armies. Elbridge Gerry of Massachusetts demanded that delegates “emulate the many state
constitutions and include a ban on standing armies.” Saul Cornell views Gerry’s “qualms as prescient.” Without the ban, “the failure to include such a prohibition … inspire[ed] vigorous opposition once the convention’s work was made public.” – Jeffery Campbell
Let us go back to the Federalist Papers.
There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS.
The definition of a posse comitatus is as follows.
The posse comitatus, in common law, is a group of people mobilized by the conservator of peace – typically a sheriff – to suppress lawlessness or defend the county. The posse comitatus originated in ninth-century England simultaneous with the creation of the office of sheriff. – Wikipedia
So a “posse.”
Something to consider is that for much of history in Europe there was no professional police force. This is explained in the following quotation.
An armed public was crucial to keeping the peace. The burden of law
enforcement rested with the citizenry, for “there was no professional police force” in England. Citizens operated under posse comitatus and aided sheriffs, constables, and bailiffs in making arrests.4 The law called on “all true men to take part in this work and are punishable if they neglect it.”5 Besides legal penalties for failing to apprehend criminals, the “law made residents of a parish liable for compensating a victim of a robbery or riot committed in their parish for half of his loss.”Citizen peacekeeping was time consuming and dangerous. The proliferation of firearms added to the danger. As a member of Parliament noted, when the policing duties were written in 1252, “men had not the use of fire-arms; nothing but clubs and pitchforks; and the thieves might have been stopped.”10 During “the heyday of highway robbers” in the late seventeenth century, bearing arms for peacekeeping transitioned from a duty to a dangerous and unpopular burden. – Jeffery Campbell
Let us return to Hamilton.
The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws necessary and proper to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and conviction? By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:
This is a poorly written section of the paper. I cannot tell what Hamilton is saying exactly, but he appears to contradict or partially contradict, placing the militias under federal control.
Hamilton continues.
“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
Here, Hamilton says that the militias do not need to be well trained, as it would be an undue burden to the yeoman or average everyday citizen. This is, of course, in contradiction to the phrasing of the 2nd Amendment of a “well-regulated militia.”
However, as I cover in the article The Complicated History of the 2nd Amendment., I am not clear that Hamilton and John Madison’s use of the term militia (in the 2nd Amendment) means the same thing.
“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.” Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee. There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instill prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes – “Gorgons, hydras, and chimeras dire”; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster.
It is becoming clear at this point that Hamilton was neither a concise nor clear writer.
Some of this section appears to be simply Hamilton thinking out loud than having gone back and adjusted the draft for general consumption.
This further brings up the question as to whether Hamilton had editorial help in writing most of the Federalist Papers. If this document was designed to be an accompaniment to the US Constitution, Hamilton should have been realized that it needed to be written more clearly.
My summary of this section is that although the militias may not be particularly well trained or even meet more than once or twice per year, they must be formed.
Hamilton continues.
A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d’ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths? If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.
Hamilton Promoter of the Socratic Method?
This appears to be an attempt by Hamilton to see how many questions he can place into a section.
First, there should not be any questions in the Federalist Papers. This is a guiding document or “users manual,” it should have assertions and evidence for the assertions. Questions are not helpful and are counterproductive for this type of document.
The last part of this section is where the “meat” of the argument resides.
In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association.
If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy.
In a nutshell, Hamilton proposes that militias must be transported across the nation depending upon the need. And that the militias need to be under the direction of the federal government.
Militia Quotes from Federalist No. 69 – The Real Character of the Executive (Alexander Hamilton)
The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States.
This again places the militia under the federal government’s control.
First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it.
So now, this places the president in a secondary role of control versus the states. This contradicts Hamilton’s previous statements in the Militia Federalist Paper #28, which was just reviewed.
The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States.
This is curious as it states the governors of states are commanders in chief. This appears to be a sentiment but never occurred in the history of the US.
Was Alexander Hamilton Mentally Balanced?
The problem with the Federalist Papers is that almost all of them were written by Alexander Hamilton. Alexander Hamilton was certainly intelligent, but a good deal of evidence puts his sanity and judgment into question.
This is taken from an interaction between John Adams and Alexander Hamilton in the HBO production John Adams. In this exchange, John Adams calls Hamilton mad.
This is a humorous take on an actual event. Drunk History has all of its backgrounds checked by academic historians. The modern language is because a modern narrator tells it, but the stories presented in the show are accurate. This story brings up obvious questions regarding Hamilton’s ethics and his impulse control.
Overall I don’t agree with Jefferson that the Federalist Papers are the cat’s pajamas. First, there are many places where the Federalist Papers are unclear as to what they mean. At nearly 400 pages, they could easily have been made more concise and edited to increase reading comprehension. One of the reasons Hamilton was selected from the British East Indies and brought to Pennsylvania for his education was because he impressed so many with his writing. However, I am not impressed. Yes, he has a large vocabulary and while I can see the intellect behind the writing, I also see a lot of passages that are say 14 lines of text that could easily be two. Many of the additional lines of text don’t add to the points he is attempting to make but do decrease the clarity of his points. Overall his writing is too conversational for this type of document.
Secondly, while Hamilton wrote the Federalist Paper on militias, he did not have anything to do with crafting the 2nd Amendment. James Madison did that. And James Madison wrote several Federalist Papers where he also addresses militias. The other founding father to cover militias in the Federalist Papers is John Jay.
Let us review these papers on the subject of militias.
Federalist No. 4 – Concerning Dangers from Foreign Force and Influence (John Jay)
John Jay wrote one Federalist Paper that discussed the topic of militias.
One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would?
This section is confusingly stated but appears to support placing militias under the federal government.
What is With the Constant Questions in the Federalist Papers?
Jay makes the same error as Hamilton often does in his Federalist Papers, asking questions where he should be making assertions. By asking questions, I have to guess that I know the answer to the question through the context within which the question is asked. In several cases, I am not sure I do.
Furthermore, the questions in this section are themselves confusingly stated. I think Jay means “wouldn’t” rather than “would.”
Madison addresses the militia in the Federalist No. 45 – Alleged Danger From the Powers of the Union to the State Governments Considered and Militia Quotes from Federalist No 46: The Influence of the State and Federal Governments Compared. as related to the power balance between the states and the federal government. I have moved this analysis to the article How Did The US So Completely Violate Its Own Constitutional Rules Against Standing Armies?
Federalist No. 46 – The Influence of the State and Federal Governments Compared
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. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
Madison repeatedly states how an armed citizenry is superior to the European model or a relatively disarmed citizenry with large standing armies.
Madison continues.
Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.
Militia Quotes from Federalist No. 47 – The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts (James Madison)
With regard to the regulation of the militia, there are scarcely any circumstances in reference to which local knowledge can be said to be necessary. The general face of the country, whether mountainous or level, most fit for the operations of infantry or cavalry, is almost the only consideration of this nature that can occur. The art of war teaches general principles of organization, movement, and discipline, which apply universally.
These paragraphs are odd. Madison appears to be saying that local knowledge is unnecessary to a militia. I don’t see how that is true, but it seems his point is that military knowledge can be generalized. That is fine, it’s more of his observation than an assertion that impacts anything I can think of.
The observations made on the subject of taxation apply with greater force to the case of the militia. For however different the rules of discipline may be in different States, they are the same throughout each particular State; and depend on circumstances which can differ but little in different parts of the same State.
This is another bizarrely worded paragraph. Here Madison seems to imply that different rules of taxation will be employed to fund the militias. Or is that a tax on the militia? It is difficult to tell due to how this is worded.
Conclusion
The Federalist Papers are routinely used to support the argument that a primary reason for the 2nd Amendment was to prevent the tyranny of the federal government and that militias could be used to overthrow the federal government if the federal government became corrupt and no longer represented the people. The modern-day presenters of this hypothesis leave out that the US federal government already does not represent the people but their donors, with elections being more of a placebo. The Citizen’s United case was one of the greatest changes that allowed for unlimited amounts of money into the political system, and no militias attacked the federal government.
Here is a summary of my observations from the militia quotes of the Federalist Papers.
Observation #1: Inconsistent Messaging on Who Controls the Militias (The Federal Government or the States?)
A significant percentage of the quotes that deal with the militia address who will control the militias. The balance of the quotes supports that the militias be federally controlled — however, at least one of the states thought it should be the states’ governor, with the US president being second in the chain of command.
This would be, of course, a critical distinction if the states were to overthrow the federal government. The various quotes seem to want to have their cake and eat it too. They want to have militias that are sent around the country for defensive purposes by a central body (which would be the federal government) but they also want to assure the states that they could not be entirely commandeered by the federal government as they could be used against the states. Madison proposes a small federal military, but one that can’t overpower the state militias. This was to allay the fears of the antifederalists, as is explained in the following quotation.
But the first-order purpose of the Second Amendment as it was drafted wasn’t to protect an individual’s right to carry a gun, but rather to ensure that a strong federal government wouldn’t overwhelm the power of the states. It was “ratified by a generation of Americans who feared standing armies, and had witnessed a systematic policy to disarm their militias,” historian Saul Cornell explains in his 2008 book A Well-Regulated Militia, about the origins of gun control in early America. – Topic
However, in another quote, it is stated that when a war is underway in earnest, the government will have to raise a national standing army, as the US did against the British.
I do not see how anyone can say there is a firm conclusion as to what is the role of the militias and who was to control them. The balance of the quotes tilts in favor of the militias being controlled by the federal government, which undermines their use in deposing a corrupt federal government.
Observation #2: What is an Insurrection?
The term insurrection is used in several quotes from the Federalist Papers, but it is not clear what the writers mean by an insurrection, as none of them define the term. I can look up the term in the dictionary, but that does not solve the issue because there are multiple types of insurrections. Insurrections can be within states or states or parts of states militarily opposing the federal government.
My reading is that they mean insurrections that threaten state or federal power — so the exact opposite of what is commonly proposed.
This is supported by the following quotation.
Rakove refutes common individual rights arguments, namely that the Constitution and an armed citizenry endorsed revolution, or that the founders disapproved of state regulation of firearms. The founders did not support revolution, as “a plain-text reading of the Constitution, which treats the militia as an institution for suppressing armed insurrection, and which nowhere endorses a right to revolution against republican government, would not by itself be conducive to that interpretation.”
That the Constitution provides a clause for armed revolution remains a myth espoused by gun-rights’ advocates. It is foolish to think the founding fathers would establish a government only to provide for its undoing by violent armed mobs. In addition, the militia is responsible for suppressing riots and insurrections in the Constitution. This still does not deter authors such as Halbrook, who states in The Founders’ Second Amendment that armed citizenry have the right to overthrow the government. – Jeffery Campbell
Observation #3: The Role for Militias the Founding Fathers Proposed Does not Exist in the Modern Era
Madison, in particular, addresses the need of the states to resist the federal government and proposes a small federal military versus the state militias. This, of course, was entirely violated as the states have minimal military capabilities and the US military has nuclear weapons. So any balance of military power between the states and federal authority has been obliviated. But Madison is discussing the states resisting the federal government, not overthrowing it if they find the government no longer responsive, corrupt, etc…
Observation #4: Missing Individual Rights to Bear Arms
There is no discussion of the individual’s right to keep and bear arms. This is another right that is proposed by gun advocates, however, it is not in the Federalist Papers. This issue is addressed in the following quotation.
Instead, research points toward an uncomfortable synthesis: the Second Amendment “was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.” – Jeffery Campbell
And this one.
The digitization of historical documents provides historians with the capability to determine the meaning of the right to bear arms. Nathan Kozuskanich searched “bear arms” in “120 American newspapers from 1690 to 1800” along with numerous newspapers, pamphlets, and broadsides in the Library of Congress online database. He found that nearly all of the articles “use the phrase ‘bear arms’ within an explicitly collective or military context to indicate military action.” Kozuskanich concludes that Americans in the eighteenth century “overwhelmingly used ‘bear arms’ in a military
sense both in times of war and in times of peace.” – Jeffery Campbell
Gun owners and enthusiasts are very strong advocates of their personal rights to bear arms for their own protection, however, are they as enthusiastic about serving as an unpaid military resource? It seems unlikely the enthusiasm would be as strong, and even low pay is sufficient to deter most of the population from serving in the military. Of course, being a citizen-soldier is more of a part-time affair. However, the question still stands if their enthusiasm would be as strong when they learn that the primary reason they have their right to keep and bear arms is to serve for the common defense. What if one refused to serve in the common defense what would happen to one’s rights to keep and bear arms. Well, most gun owners and enthusiasts do not see any connection between serving in the common defense and their right to keep and bear arms. However, this issue was addressed regarding religious conciencous objectors as is explained in the following quotation.
Federalist Thomas Scott of Pennsylvania objected to the provision, because “if this becomes part of the constitution, we can neither call upon such persons nor an equivalent.” He further stated that it weakened an already undependable institution – the militia. Providing further proof that
the right to bear arms was linked to the concern over standing armies, Scott claimed that the religious exemption clause revoked the right to bear arms. He told the House that the “right to keeping arms” was the “recourse to a standing army.” By exempting religious objectors from serving, they were being denied their right to bear arms. He concluded that citizens would use the religious exemption to avoid military service. – Jeffery Campbell
Observation #5: How the Bannermen Logic for Militias Has Been Minimized
The defensive, or bannermen – a form of citizen or farmer soldiers, armed frontiersman logic for the right to keep and bear arms is referred to on numerous occasions. This means that the armed citizens have the right to defend the nation from external threats. I have asked in a previous article if that is a right or an obligation.
In the case of the frontiersmen having arms to defend against Indian attack, this was very well established before the Bill of Rights, and again, it is as helpful to the state as to the individual. In part, Hamilton’s logic for this is that it would be too expensive to have the state protect these individuals.
Observation #6: Lack of Evidence for the Fighting Against Tyranny Argument
I explore this topic in the article The Revolutionary Elites Double Standard on Insurrections.
Observation #7: Lack of Evidence for the Supporting the Right to Self Defense
Gun advocates routinely point to the Federalist Papers as providing strong support for the right to self-defense. I could not find evidence for this. This is expanded upon in the use of the law as explained in the following quotation.
The question of whether gun regulations violated the Second Amendment
eventually went before the Supreme Court. Due to the gangland violence of the Prohibition era, Congress passed the National Firearms Act in 1934, which restricted access to machine guns, sawed-off shotguns, silencers, and other firearms used by criminals. Two Oklahoma men, Jack Miller and Frank Layton, were arrested crossing the Arkansas border with a sawed-off shotgun. Prosecuted under the National Firearms Act, the pair claimed it violated their Second Amendment right to bear arms. In U.S. v. Miller,
Franklin Roosevelt’s Solicitor General, Robert Jackson, who would later become a Supreme Court justice, argued that the Second Amendment protected only the collective right to participate in the militia. He stated that “the scope of the Second Amendment’s protection ‘generally restricted to keeping and bearing of arms by the people collectively for their common defense and security.’”The Supreme Court agreed. In a unanimous ruling, the Court determined that there was no conflict between the Second Amendment and the regulation of firearms under the National Firearms Act. Justice James Clark McReynolds read the Court’s opinion from the bench, stating that “we construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.” He further clarified the Court’s stance by stating that “certainly it is not within
judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” The verdict in U.S. v. Miller was astonishing for a variety of reasons. McReynolds’s decision to read the ruling from the bench was a practice typically reserved for instances in which the Court desired to make
its position explicitly clear. In addition, the ruling was unanimous, a rarity for the bitterly-divided Hughes Court. Perhaps the most surprising facet of U.S. v. Miller was that seventy years later an even more politically conservative and contested court overturned the decision, erasing centuries of precedent. In 2009, the United States Supreme Court ruled in D.C. v. Heller that the Second Amendment protected an individual’s right to own a firearm unconnected with militia service.15 The conservative bloc issuing the majority opinion (in a 5-4 ruling) argued that the amendment always protected a right to individual firearm ownership and that the
Court’s majority opinion reflected the original intent of the founding fathers. – Jeffery Campbell
It is very difficult to see where Anontin Scalia and the other conservatives obtained the evidence that individual rights to firearm ownership were the intent of the founding fathers.