Justice Breyer, the Second Amendment and Federalist 46

Thursday, June 16, AD 2016

(This post was originally published in 2010.  Since the Democrats are making renewed attempts in the wake of the Orlando shootings to amend the Bill of Rights, I thought I would publish it again.)

 

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.

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18 Responses to Justice Breyer, the Second Amendment and Federalist 46

  • Madison, my fellow Virginian, was trying hard, but the first part of that argument was weak. As it turned out, the federal government had no difficulty raising a very large army (aided by some states) and using it to defeat a collection of some state armies in the 1860s. Also, that war demonstrated the implausability that a ragtag force of untrained militia, ill-armed and supplied, could stand against a federal army trained, superbly supplied and equipped, and backed by nearly limitless industrial output.

    The ability and willingness of the federal government to train, equip, and field an enormous army and navy decidedly and definitively led to the overthrow of state governments, contra Madison’s assurance, his own state’s government being one that suffered “downfall” at the hands of such an army.

    There are of course other vital and important reasons for the Second Amendment. Our Founders, having witnessed Culloden and the subsequent disarming of the Scots highlanders, knew well the importance of guaranteeing the right to keep arms. But Madison was factually incorrect that the federal government could never raise an army sufficient to overcome state opposition and crush a state if it so desired.

    That indeed, so we’re told, is the lesson the Civil War: state insurrection is now illegal *because* the federal government can crush it.

  • Tom, the Union army consisted, except for the US Colored Troops and the miniscule regular army, of volunteer regiments raised by the states. But for popular enthusiasm for the War in the North, the federal government would have been helpless to put down the Confederate insurrection. Additionally, if there had been the will in the South to fight a guerilla war of decades in length the Union victory would have proven ephemeral. Even with fairly low level violence the federal government ultimately tired of keeping troops in the South to maintain the civil rights of blacks and to support “carpetbag” governments. I think that Madison proved prophetic.

  • CT and NY, during the Sandy Hook hysteria, knee-jerk banned “assault rifles.” The results are hundreds of thousands of newly-minted, at-large felons.
    .
    What’s the assault trifle murder rate in Switzerland where nearly every able-bodied man, and some women, has in the home an assault rifle, magazines, and hundreds of rounds of military ammunition?
    .
    Breyer had a firm grasp of the obvious. The Constitution would not have been ratified without the ten Amendments in the Bill of Rights.
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    FYI – the Second Amendment right is one of them “unalienable” rights, which I was given by God.
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    FYI – The word “people” used in the Bill is individual not collective.
    .
    “Well-regulated” didn’t have the same connotation as today’s mindset of 6 trillion regulation controlling every facet of life.
    .
    This gun control chimera is solely meant to divert attention from the real problems.
    .
    You are far more likely to be knifed (1,567 murders), beaten (660 murders), or blunt object (435 murders) to death than be shot with a high-magazine capacity assault rifle (all long rifle murders – 248 murders).

  • Those statistics were for 2014.

  • Ladies and gentlemen (and you others who don’t own any firearms), why are you preaching to the choir? It is easy to poke holes in the silly comments made by people who do not really understand firearms. Those holes are ignored by the majority of people.

    The answer to the question “When will these mass (and media-loved) shootings stop?” is not being answered by pro-Second Amendment advocates. These shootings are fraying – or are being used to fray – the very fabric of the Constitution itself. The majority of people want these shootings to stop, and they are getting to the point where they do not care if the Constitution is endangered to do so. So, it is time to come up with ways to stop them, or most of them, without destroying our rights, or it is time to watch our rights disappear.

  • Sure. Bring back insane asylums and allow for the involuntary institutionalization of the mentally ill. That would stop most of the mass shootings. The deinstitutionalization movement of the 40’s and 50’s is one of the more pernicious reform movements in US history.

    As for the so-called majority in favor of gun control, that is one of the most risible myths in American politics. Slanted media polls tell us nothing about the intensity on an issue, and when it comes to the Second Amendment the intensity, and political strength, is substantially with the defenders of the Bill of Rights.

  • Don:
    1) Your mental health proposals are not enough, since they require us to return to 1940’s and 50’s standards of identification and treatment of the mentally ill. There is no consensus to do that. I have seen time and time again how families avoid even the modest resources that are now available so as to ‘mainstream’ their disturbed children. I know this firsthand, not only because my wife deals with this every day, but also because a close friend knew the Sandy Hook shooter’s family. Your proposal will not work any better than the stupid CDC policy of getting pediatricians to ask “Are there guns in the house?”

    2) Yes, in broad strokes the majority of people want no expansion of gun control today. That does not mean that cannot change tomorrow, and it does not mean that seemingly small measures cannot be forced down people’s throats, such as happened with the 1994 ‘assault’ rifle ban. The Senate just caved into the Democrat’s gun control filibuster yesterday – what will come of that? It only takes one Reichstag fire.
    If the young people of 2016 can turn so anti-capitalism, then certainly the young people of 2030 can turn against the Second amendment. Your objection may not be true much longer.

  • Brief but brilliant — the linked law review article below is IMO the best piece on the Second Amendment ever written.

    http://www.constitution.org/cmt/alstyne_2nd.htm

    I was fortunate to have been taught con law by Wm Van Alstyne — a true honest liberal. A life-long left-leaning Democrat, Van Alstyne is first and foremost a scholar of the highest rank. He pulled no punches on the lawlessness of Roe v Wade, for instance — notwithstanding his pro-choice policy position.

  • Obama, Hillary et al use the tragedies as opportunities for exploitation in order to divert their weak-minded believers’ attention from their policies that have made America and the World more dangerous, and to advance the nightmarish left-wing agenda.

    Anyhow, they banned drugs and we know how that worked.

    Things are never so bad that they can’t be made worse. We have seen it for the last seven plus years.

  • Also, that war demonstrated the implausability that a ragtag force of untrained militia, ill-armed and supplied, could stand against a federal army trained, superbly supplied and equipped, and backed by nearly limitless industrial output.

    Don basically said it – see guerrilla warfare as the counter argument. Also see Iraq, Afghanistan, and just about any other mid-east hot spot.

  • “Your proposal will not work”

    1. Actually it would work and be quite simple to enforce. Simply allow relatives or friends to file a petition to involuntarily institutionalize an individual. I see this time and again in my practice where people know a friend or relative is crazy and they are unable to intervene to help. State’s attorneys would jump at the chance to sweep up street people and to empty jails of the obviously insane. The legal system would instantly swing into action if such a reform was enacted. In this country the problem of violence is, outside of drug turf wars and domestic violence, largely a problem of mental illness.

    2. In regard to gun control this is a battle the left has been steadily losing for the last half century. The only impact that mass shootings like Orlando has is to intensify the desire for fire arms.

  • You say potato I say potahto. Sure, technically the federal army was fed by state-formed units. But those units were thoroughly integrated into a centrally-controlled Union command structure, ultimately under the command of the President.

    It mattered little to the people whose states were crushed by that army that it consisted of units contributed by other states. Madison’s claim that a federal army would never be greater than a state militia was just not realistic, and the civil war showed that. Lincoln called up troops,and troops came. That they came voluntarily from some states hardly matters to the point, which is that once federalized, they were a powerful weapon to suppress the Southern rising.

    Lee realized that guerilla warfare, while it could theoretically go on indefinitely, would never achieve the war aims of the Confederacy, and only result in a long and bloody occupation that would accomplish nothing, again rebutting Madison’s claim that the armed populace could somehow defeat a train, equipped professional army.

    If the 2d Amendment has to rely on this point for support, we’re in trouble. No collection of armed individuals could successfully or for long resist the power of the modern state, sad to say. They outgun us, out-equip us, out-surveillance us, out-intelligence us, out-supply us, and probably outnumber the people who would actually engage in armed resistance.

  • “Sure, technically the federal army was fed by state-formed units.”

    No technically about it Tom. If the Northern states failed to provide troops, as did North Carolina, Tennessee, Virginia, Arkansas, Missouri, Kentucky and Maryland, the Federal government would have been impotent. The Union army was the embodiment of the Northern militia.

    “Madison’s claim that a federal army would never be greater than a state militia”

    Madison’s case was where the majority of the people opposed a usurping federal government. The clear majority of the American people supported the policy of the Lincoln administration to preserve the Union.

    “Lee realized that guerilla warfare, while it could theoretically go on indefinitely, would never achieve the war aims of the Confederacy,”

    That isn’t quite correct. Lee did point out practical problems with a guerilla war, but he was more concerned with the negative impact of such a war on the country. Lee opposed guerilla war from principle and not just because he doubted its short term effectiveness.

    “No collection of armed individuals could successfully or for long resist the power of the modern state, sad to say.”

    Quite untrue, considering that the US military was greatly strained in putting down the Iraq insurgency, temporarily. Additionally, a wide spread insurgency would soon be joined by National Guard units and probably some regular army units. Of course the insurgency would quickly produce an intelligence network second to none in a country where most people have cell phones and access to the internet. Not to mention that entire states would probably be rebelling and forming their own regular army units. No, I think a rebellion supported by a majority of the American people would meet with probably swift success.

  • “Actually it would work and be quite simple to enforce. Simply allow relatives or friends to file a petition to involuntarily institutionalize an individual. I see this time and again in my practice where people know a friend or relative is crazy and they are unable to intervene to help.”

    Don, I’ve been there. I understand how the current system hampers people like your clients (and me, I might add) from getting help for their loved ones. I know, I’ve been in Probate Court myself. That’s not what I was writing about. I was writing about the people who would never enter your office to seek help, because they are in denial. Their children grow up, remain disturbed, and pass background checks or they just steal their parent’s guns. That is what needs to change, and a way has to be found to make it happen. I am certain that it can be done, and it does not involve gun control or mental health reform.

  • Article V Three fourths of the states must ratify any change in our Constitution.

  • I think the Left’s determination to ban gun ownership is entirely ideological. It is also convenient to focus our attention on this contentious issue rather than upon the abject failure of Obama’s foreign policy. The success of ISIS abroad encourages Islamic radicals already here to act. When I first heard the current maladministration sing the praises of the so-called “Arab Spring”, I sensed we were headed into a dangerous situation. We have genocide in the Middle East, an effective invasion of Europe, and insurrection throughout Asia and Africa. I blame Obama, Hillary and the ignorant masses who vote for them. These ignorant include many with degrees, even advanced degrees. We’re all ignorant about something but it is a shame that so many are ignorant of the things that matter most.

  • “I am certain that it can be done, and it does not involve gun control or mental health reform.”

    Gun control, always a euphemism for gun confiscation if it were to have any impact, which is unlikely, on mass shootings, is never going to happen in this country. What I describe in regard to involuntary institutionalization is how this country dealt with truly deranged people until the day before yesterday in historical terms. I am now truly curious as to what you think absent either gun confiscation or involuntary institutionalization of the insane would solve the problem of the seven or eight mass shootings, at least four dead, not including the shooter, that occur in this country of a third of a billion each year on average.

    In regard to mass shootings, an eye opening look comparing the US to European nations can be found linked below:

    http://crimeresearch.org/2015/06/comparing-death-rates-from-mass-public-shootings-in-the-us-and-europe/

    The magnitude of the slayings in the Orlando shootings was highly atypical for US history and was the product of jihad, a fact that the media is now studiously, and I think in the end unsuccessfully, attempting to ignore.

  • “What I describe in regard to involuntary institutionalization is how this country dealt with truly deranged people until the day before yesterday in historical terms.”

    Donald, your words properly define this matter but the Left in its ideological zeal to disarm us all will broad-brush the many harmless persons who at one time or another in their lives suffer inordinately from anxiety or depression. A finding of derangement constituting insanity is a serious matter that should be subject to strict legal process as it will deprive a person of their civil rights. I am reminded of how the Soviets used unjust findings of insanity to incarcerate their dissidents. It is not hard to imagine being accused of insanity for refusing to believe in an alarmist position on global warming. The Anti-Christ ever travels in governmental circles. Beware!

Justice Breyer, the Second Amendment and Federalist 46

Tuesday, December 14, AD 2010

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...

11 Responses to Justice Breyer, the Second Amendment and Federalist 46