Justice Breyer, the Second Amendment and Federalist 46
Justice Stephen Breyer of the US Supreme Court has never been a fan of the Second Amendment. On Fox News on Sunday he made an historical claim that I would like to analyze in this post.
Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,” said Breyer, adding that historians characterize Madison’s priority as, “I’ve got to get this document ratified.”
I assume that the Justice is referring to Federalist 46 written by James Madison, and which may be read here. (I apologize in advance to our resident blog expert on the Federalist papers Paul Zummo. Paul, if you see any mistakes on my part in the following, please let me have it!)
The Justice is correct that many in the states were concerned that the proposed new federal government would have too much power, and Federalist 46 was written to help allay those concerns.
The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition.
Madison realized that this was a sensitive point. The American Revolution had only ended five years before, and the attempt by Great Britain to rule through military force was a raw memory for all of his readers. Madison tackles this fear head on by comparing the military force of a standing federal army to the militias of the states:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. 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. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.
So far so good for Justice Breyer. However, he misses completely the import of other things that Madison says in Federalist 46.
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.
A British officer lamented at the beginning of the American Revolution that the Americans were “a people numerous and armed”. Madison does not simply seize upon militias as an argument against fears of a tyrannical federal government, but he rather views the right of citizens to be armed as a fundamental protection for liberty.
Madison makes this clear in this passage:
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. 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. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.
Madison’s views were commonplace at the time. Justice Story, appointed by James Madison to the US Supreme Court wrote in 1833 in his Commentaries on the Constitution of the United States:
“The next amendment is: ‘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 importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.(1) And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid.”
Contra Justice Breyer, we do not have the Second Amendment merely because of some fear that the federal government would federalize the state militias, but because dear bought experience taught the Founding Fathers that an armed population was an essential guard against governmental encroachments on liberty. I think the late Charlton Heston in the video below in 2000 when he was President of the NRA is closer to the Founding Fathers in his view of the Second Amendment than is Justice Breyer.