Federalist 46

Justice Breyer, the Second Amendment and Federalist 46

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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.”

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

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. Continue reading

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