Madison, Federalist # 46 and gun rights

"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."

James Madison (Publius) in Federalist Paper #46
arguing for the ratification of the present Constitution including the Second amendment.

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To "sweeten" the medicine of an insistence on individual gun rights in the US, it is usually claimed now that Americans want guns for; hunting, target shooting, home defense, collecting...

In fact "Publius" argues here that the possession of firearms by the citizens and the potential for resistance to tyranny implicit in that possession is necessary as part of the system of checks and balances that holds tyranny at bay. 

As one of the three authors of the Federalist Papers Madison is engaged in trying to persuade the states to ratify the present constitution.  Without such assurances as this one, it is quite possible that the constitution might never have been ratified.  In fact, two states, North Carolina and Rhode Island had voted against ratification by the time that Virginia voted in favor by the slimmest of margins thus establishing a majority.

NB that the private possession of weapons is mentioned by Madison BEFORE he mentions the similar effect of armed militias belonging to the states.  It is stated as an absolute good.  This explains the structure of the clauses in the second amendment.  The militia clause is intended to stand as an example of what in Madison's view was an absolute right of the citizens.

For those who would reply that an armed citizenry could have no effect against a modern army, it is only necessary to direct their attention to the history of the last years.

To those on the left or right who think an unarmed citizenry is a good idea, consider your true thoughts regarding the scruples of government servants and possible future regimes.  pl

http://www.foundingfathers.info/federalistpapers/fedindex.htm

http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

Comments

[David W.]

As much as I dislike bumper sticker statements, one that holds true is 'When guns are outlawed, only outlaws will have guns.' That said, overreliance on guns for defense is a common mistake, because in many situations it is the wrong tool for the job.

In this case, it would seem to be so--the 'Red Dawn' scenario is a fantasy, however, it appeals to atavistic impulses. There are much less spectacular or immediate ways of fighting tyranny that are ultimately much more successful; the mass strike, for one.

The war against unions and organzing labor has been the hidden lynchpin of Imperial America--I think that a general strike is much more feared by the Imperialists than an ad hoc militia.

[Glen]

Pat,

Our right to bear arms is secured by the second amendment, but like other rights, it is not absolute. I have to agree with others that the country is so large and varied that the regulation of guns and gun ownership should be varied to fit the terrain (so to speak). I do believe that the government should restrict gun ownership to prevent their use by criminals and others much like the regulations in place for obtaining a drivers license.

I find it peculiar that the same SC justices so concerned about upholding our right to bear arms ruled to stop counting votes in 2000 and essentially picked our President. The argument that citizen gun ownership prevents government tyranny is an empty shell.

Glen

[Arun]

I must have missed how guns in the hands of the citizens kept the Patriot Act from being rammed down our throats.

This is not an argument against the right to bear arms; it is about a wrong argument about that right.

In any case, in our present circumstances, preservation of our liberties will take something other than arms.

[Patrick Lang]

Arun

Yes. You missed the fact that the ultimate sanction is reserved for "in extremis" cases. We are not there yet. If we were, I would be in prison. pl

[Patrick Lang]

Andy Vance

Yes. In a way it was. The image created by the MSM was that all the Iraqi Shia Arabs and a lot of the Sunni Arabs opposed Saddam. That was not true.

Who do you suppose suppressed the Shia arab rebellion in '91? pl

[Patrick Lang]

Glen

As I said to another, armed resistance is a sanction reserved for "in extremis" cases. Read the Declaration of Independence. pl

[peony]

Colonel Lang, I'm a long time supporter of gun control. However, given the current Administration, I see the importance of the Second Amendment. I'm currently very concerned however with the assault on Fourth Amendment rights.

[Dave of Maryland]

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.

If we keep going over the same ground, we will keep getting the same results. Second amendment debates are moot, since present polices are unlikely to change. There is probably more gun violence now than 20 years ago, there will probably be more 20 years from now. This is not a good trend, but as long as none of us are on the receiving end of a barrel, we can spin arguments endlessly.

If militias are not "well regulated", then is there a right at all? Are "people" the same as "individual citizens?" I never thought so. "Shall not be infringed" means not under the control of Washington. Not in any way.

State militias did not turn out to be like volunteer fire departments, ie, independent. State militias have always been under the joint control of Washington & the various state governors, with Washington having the final say. Ask the governor of Louisiana if that's not infringement.

As has been pointed out elsewhere in this thread, Madison's arguments are legalistic & opportunistic. Federalist 46 was published on January 29, 1788, a scant 18 months before an infuriated mob tore apart the Bastille. I'm not a student of French history, but by January 1788, the survival of the French monarchy surely did not look assured.

Publius is also aware the English Revolution of two centuries prior did not hinge on individuals defending their households, but set battles between organized armies. How these armies were raised had nothing to do with the doctrine of a gun in every pot. Publius just wants to have his gun. His argument is self-serving.

But since these ideas go nowhere, I considered "militias" as precursors to organized police forces. Here I had happier results:

A well regulated militia being necessary to the security of a free State...

To get New York's finest, we need only to change the word, "State" to something like, say, "Peoples".

Continuing,

...the right of the People to keep and bear arms...

Where "People" are any organized group of individuals. Such as those who have incorporated themselves into towns & cities.

....shall not be infringed.

Police forces are, in fact, not only independent of Washington, they are also independent of the various States & for all practical purposes, independent of their host communities.

The police are a form of militia in that they do not live in barracks & are said to be "on call" 24/7. They are organized, they are a manifestation of the people (ie, their city), they are armed, they are independent.

So why are police forces not what was meant by the Second Amendment? Aside from the single word, "State", they meet every requirement. You wanna carry a gun, have one in the house, protect your security against all enemies, foreign & domestic? Be a cop. Many cities have auxiliaries. All can join.

[Patrick Lang]

DoM

You seem to be into consolidation of state (national)power.

The Soviets callled their police "militia." Why was that?

You need to brush up on the militia thing in the US. American states have a constitutional right to their own military forces (called militia) and have often had them independent of any federal control or funding. The National Guard thing is late 19th Century in its origins and is part of the Army's attempt to acquire the state militias as a reserve force. They did this after Upton's "expansible army" scheme was diaprroved by Congress. In the civil war the militia of both sides remained under state control throughout. Don't confuse those forces with the volunteers. pl

[TomB]

Dave of Maryland wrote:

"So why are police forces not what was meant by the Second Amendment? Aside from the single word, "State", they meet every requirement...."

Dave, I suspect you're just trying to make a rhetorical point here but it's unclear.

So, to respond anyway, firstly aside from the single word "kill," the Ten Commandments would meet every requirement condoning homicide, no?

Moreover, you have to remember that the Bill of Rights originally only restrained the Federal government, not the states. It was only with the passage of the 14th after the Civil War with its talk of "Due Process" and "Equal Protection" that the Supreme Court (much later on yet) had a way to make the states obey the Bill of Rights.

It's called "incorporation" and so far it's been held that via the Due Process and Equal Pro clauses in the 14th the vast majority of the Bill of Rights have indeed been applied to the states. (One by one, on a case-by-case basis.)

And actually, interestingly, one that hasn't been is the Second Amendment, even today. Remember, that case decided the other day was from the Dist. of Columbia. So technically it's still an open question even now whether the Second applies to the states.

But, I very much doubt that it is going to be held that the Second does not apply to the states. Indeed the argument may not even be raised given that the SCOTUS clearly seems to have taken this most recent case to make a big statement and not just one limited to the D. of C.

So in any event the fact that the Bill of Rights wasn't even intended originally to apply to or restrain the states would just seem more evidence if anyone needed it that no, the Second Amendment was not about guaranteeing the right of local police to carry guns.

Cheers,

[rc thweatt]

Further points-
ISTM, for an American, the idea of a collective right(as opposed to the right of individuals to act collectively) is actually incomprehensible; as Hume might put it, you can say the phrase, but you can't actually imagine the thing.

Mayor Bloomberg of NYC is probably right- with this decision, far fewer gun owners will see every gun regulation as the thin edge of the wedge, they will no longer really fear their weapons will be pried from their cold, dead hands(and they may decide that it is better to fight tyranny in the courts, than to wait to fight it their front yards).

Speaking of courts and lawyers, am I alone in no longer being comfortable with the Attorney General serving at the President's pleasure?

[Cromwell's severed head]

Dear Col. Lang,

I hope you take the time to go back and read Clifford Kiracofe's comment above. I view the SCOTUS decision ,as just another, in a long line of cynical, political ends, achieved by judicial fiat. Not claiming that it isn't without impact but like everything this court does, no amount of rhetoric from the lips of Scalia or the Federalist Society apologists ,is going change the fact, that it is just another ruling of intellectually dishonest ,hogwash and hyperbole.
As a gun owner myself ,I hardly see this as a victory for individual rights or more accurately, if it is, very thin gruel indeed, considering this courts hostility to individual rights, in nearly all other decisions.

Just as an aside, I have a brother in law, who is a barrister with a background emphasizing constitutional law. We have a running bet, beginning with the Bush v Gore decision, that I ,as a lay person, can predict the outcome of all SCOTUS decisions. I've won everyone one of those bets even though, many are contrary to the supposed , oft stated "ideologically pure" interpretation of the constitution (read "conservative"Judges).

Back to your original post: The phrases you emphasize in Federalist 46 are not the ones I would choose.

"the existence of subordinate governments"

"Notwithstanding the military establishments in the several kingdoms of Europe
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,

Mind you, I'm not saying I am right and you are wrong, simply that in the context of the time my interpretation of the document is an attempt to address the need for defending the citizenry without a standing army or a strong central government ,which could be subverted by ambitious tyrants. These were people (including my own ancestors) who had to defeat HIS Royal Navy, HIS Royal Army, HIS patriotic Royal SUBJECTS in HIS colonies, , etc. Is it a stretch to think ,that the last thing anyone wanted at that time, was to be pressed into service by an outside agency of any kind?

"the existence of subordinate governments" Notice,that is governments, plural. local governments chosen by themselves. Emphasis local.
The Europeans didn't believe for a minute that George Washington would willingly relinquish his power for the simple reason that historically, generals in such situations, seldom do. Fortunately for our fledgling country the European empires were so busy killing each other in Europe, that they could only interject themselves- make mischief on the cheap here. I don't believe there was any sense of urgency to deal with our upstart nation, because the elite of Europe felt that it would fail all by itself. Who knows what would have happened if Washington had used the Continental Army to proclaim himself Maximum leader?
Based on our history since, Washington might as well have, at least ,tried. All the lessons of Empire building have been washed away over time, with the added benefit of the American mythic narrative, that a nation born out of bondage to Empire certainly can't desire to be one.
Imperialism isn't a pejorative term in England or France for that matter. True to our puritanical inheritance, we have to work much harder to justify "white man' s burden", that the Brits could embrace without the slightest bit of self conscience.
From the Maine to the Lusitania , the Gulf of Tonkin to WMD, to my favorite Grenada :no adventure is undertaken ,without some just noble cause to underpin the action.
In honor of Federalist Paper #46,I'm going out to take some target practice now but with the conviction ,that the intent of the second amendment was long ago forgotten and converted into something it was never meant to be,i.e. a political cudgel, to flog the culture wars, at the expense of our vanishing ideals or vision that isn't stuck in the 19th century. That the standing military will be used in future, to suppress the citizenry, just as it was in the draft riots in N.Y. during the Civil War, just as it was on the the WW I veterans seeking their pensions.

[Consul-At-Arms]

I've quoted you and linked to you here: http://consul-at-arms.blogspot.com/2008/07/re-madison-federalist-46-and-gun-rights.html

[Townie76]

Pat, to add some additional fuel to the fire, as you have so rightly included Mr. Madison's #46, I thought I would share with you what he submitted as a proposed 2nd Amendment. You will note that the change in wording from his proposal has given rise to much of the confusion we have over what the 2nd Amendment means:

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

[Edward Amame]

I would disagree with the poster who wrote that "the anti-firearms fervor that afflicts some in America can, in part, be traced to the end of the draft." I would instead trace it to the fact that more guns mean more murders, to the fact that that deaths by firearms are lower in states with stricter gun regulation. Nothing in the second amendment suggests there's an inalienable right to possess weapons that can mow down 26 people in less than two minutes. Reasonable regulation of guns has always been a part of American history, even in towns like Dodge City in the heyday of the "Wild West."

Ironically, it now appears that the shooter's mother was shot in the face with one of her own stock of military-type weapons that were collected to prep for "what can happen down the line when the economy collapses,” according to her sister. Ms Lanza's right to possess such a collection for whatever reasons has come at a very high price.

[turcopolier]

Edward Amame

"... the fact that more guns mean more murders, to the fact that that deaths by firearms are lower in states with stricter gun regulation." Citation? pl

[Equillus]

The only compelling argument for universal suffrage as regards firearms is that it exists to protect the citizenry from tyranny. Well, times do change. 'Some will rob you with a six-gun, And some with a fountain pen.'

So easy to fight the last war.

[Anonymous]

Other peoples may or may not have a right to bear arms.

What americans have is a duty to withstand tyranny and a legal framework that provides the means for doing it. As they fail in performing the former they succeed in forfeiting the later.

[Edward Amame]

@ Col Lang

Here are the citations you requested.

A) Where there are more guns there are more murders: Harvard Injury Control Research Center

http://www.hsph.harvard.edu/research/hicrc/firearms-research/guns-and-death/index.html

b) Firearm deaths are significantly lower in states with stricter gun control legislation: The Geography of Gun Deaths

http://www.theatlantic.com/national/archive/2011/01/the-geography-of-gun-deaths/69354/

[turcopolier]

EquiliiusT
Pens and guns were needed then and are needed now. The 2nd Amendment was put in the Constitution AFTER the revolution. It had nothing to do with the British. Insurrection is not the intention. What is needed is the political weight of an armed citizenry in the balance against government recklessness. The police, even at local levels, are far too arrogant and willing to push citizens around. Here, in my home place, the local police force "raided' a local home last weekend and ordered several dozen kids out onto the lawn where they lined them up and breathalysed them in the cold night. This took several hours. A neighborhood woman and a man who is a federal prosecutor objected to this proceeding and were both threatened with arrest on various grounds. You want the police to have an absolute monopoly on potential force? pl

[optimax]

Too many unbalanced young men have unhealthy relationships with guns. Our culture encourages it, whether it is the media glorifying guns or our government using violence or the threat thereof inorder to maintain global superiority. After the latest tragedy at Sandy Hook Elementary, people will back gun restriction. I would actually back us returning to the Clinton era ban on assault weapons (a misnomer, I know) and clips larger than 10 rounds.
We will be lucky if the restrictions aren't greater because the coming debate will be emotional and not swayed by statistics or reasoned argument. The first duty of every species is to protect its young. At this America has failed miserably. Since we will not change our culture, we will tighten our gun laws. This does not mean we will ban guns.

One thing I've wonder is whether the media hyped Mayan end-of-the world meme would encourage the mentally fragile to extreme measures. In one article I read about Sandy Hook said the killers mother was a Doomsday Prepper. How did that affect this mentally unbalanced young man?

I know there are other ways to commit mass murder but easy access to semi-automatics with high-capacity magazines make it too easy for young men expriencing a psychotic break to carry out their evil intentions. In last weeks Oregon Mall and Sandy Hook Elementary School shootings the killers took the weapons from someone they knew. Most shootings take place in gun free areas so a 10 bullet limit will allow a bystander a chance to rush the shooter while he reloads. There was no such chance at either tragedy.

[Fred]

"Speaking of courts and lawyers, am I alone in no longer being comfortable with the Attorney General serving at the President's pleasure?"

That concerned allot of people in '73.

http://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/102173-2.htm

[Charles I]

Hope they are smarter than me

My universal prayer

[Charles I]

Its true, the police are a law unto themselves, as well as willing tools of the security state, drug war greased the skids, difficult to know how to contain that when all I want for xmas is a HSD grant, mebbe an armored vehicle.

[Charles I]

I suppose this leaves nutbar control as the solution to these rampages.