Madison: Federalist No. 46, on the makeup of the militia:

[NYC_SKP]

(crossposted in Gun Control & RKBA)

This post is in response to a recent post in a protected group and serves to provide more detail and context, and is open to all members for discussion:

The inspiring post makes reference to James Madison Federalist No. 46 and is titled: Why Second Amendment absolutists are crazy wrong in which the OP notes:

"From this it seems pretty clear that the militia envisioned by Hamilton was a truly well regulated, full time, finely trained group of soldiers."



For context, here is the full text of essay (in italics), preceded by an introductory clause provide at wikipedia:

...In an effort to further dissuade fears over a national military force, Madison indicates that, at any point, the maximum force that can be brought to bear by the government to enforce its mandates is but a small fraction of the might of an armed citizenry:

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.

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.

http://en.wikipedia.org/wiki/Federalist_No._46

It seems very unlikely that Madison refers here to half a million "truly well regulated, full time, finely trained group of soldiers" as suggested by the OP.

No, I submit that he refers to regular folks who are otherwise engaged full-time in ordinary careers and are enjoying their Second Amendment rights.

It's a great essay, filled with great lines that I would like to have highlighted, but then almost all of it would have been highlighted.

>>>> Self defense is a civil right, even in California, according to it's state constitution. It's right there in the first clause of the first article.

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS


SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

http://leginfo.ca.gov/.const/.article_1

[Panich52]

1. Jefferson may be better exemplar. He didn't like standing armies.

None but an armed nation can dispense with a standing army”

A standing army has always been used by despots to enforce their rule and to keep their people under subjection.

From US Army Center of Military History: Hamiltonians & Jeffersonians
http://www.history.army.mil/books/RevWar/ss/ch5.htm

The size of the Army during the Quasi-War soon became a sensitive political issue. The Jeffersonians were convinced that France was not about to fight in North America, and in the same sense used by the colonists in the decade before the Revolution, they came to consider the underutilized regulars a "standing army." They feared that Hamilton and his allies planned to use it to crush domestic opposition. At each step of the expansion process they raised this issue.

Between 1812 and 1815 the American military system, created by the Soldier-Statesmen of the Revolutionary generation and in part still commanded by veterans of the War for Independence, was tested again. If the war did not noticeably enhance the international reputation of America's military forces, it nevertheless proved them sufficient to the task of stalemating a powerful enemy. In a number of key engagements, the nation watched able young generals, whose careers would continue well into the nation's coming of age, assume the mantle of leadership from the aging veterans of the Revolution. The youthful Andrew Jackson's victory at New Orleans, for example, mirrored that of Samuel Smith of Revolutionary War renown in the successful repulse of the British before Baltimore just months before. Both proved once again that regulars and militia could be effectively combined in combat, just as they had been at Cowpens, when they were employed in a team effort that did not require either to carry out tasks alien to its own capabilities. Their achievements in this "second War for Independence" demonstrated that the Founding Fathers, ever suspicious of standing armies in the European sense, had created a workable alternative for the new nation.

Digital History:
http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtID=3&psid=169

Deep substantive and ideological issues divided the two parties. Federalists feared that Jefferson would reverse all the accomplishments of the preceding 12 years. A Republican president, they thought, would overthrow the Constitution by returning power to the states, dismantling the army and navy, and overturning Hamilton's financial system. The Republicans charged that the Federalists, by creating a large standing army, imposing heavy taxes, and using federal troops and the federal courts to suppress dissent, had shown contempt for the liberties of the American people.

More TJ:

"I do not like [in the new Federal Constitution] the omission of a Bill of Rights providing clearly and without the aid of sophisms for... protection against standing armies." --Thomas Jefferson to James Madison, 1787. ME 6:387

"The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so." --Thomas Jefferson to Thomas Cooper, 1814. ME 14:184

"In this country, [a draught from the militia] ever was the most unpopular and impracticable thing that could be attempted. Our people, even under the monarchical government, had learnt to consider it as the last of all oppressions." --Thomas Jefferson to John Adams, 1777. ME 4:286, Papers 2:18

"The breaking men to military discipline is breaking their spirits to principles of passive obedience." --Thomas Jefferson to John Jay, 1788. ME 7:19

"None but an armed nation can dispense with a standing army. To keep ours armed and disciplined is therefore at all times important, but especially so at a moment when rights the most essential to our welfare have been violated." --Thomas Jefferson to -----, 1803. ME 10:365

"It is more a subject of joy that we have so few of the desperate characters which compose modern regular armies. But it proves more forcibly the necessity of obliging every citizen to be a soldier; this was the case with the Greeks and Romans, and must be that of every free State. Where there is no oppression there can be no pauper hirelings." --Thomas Jefferson to James Monroe, 1813. ME 13:261

"I think the truth must now be obvious that our people are too happy at home to enter into regular service, and that we cannot be defended but by making every citizen a soldier, ... -- Jefferson to John Wayles Eppes, 1814.

---
TJ did come to believe in conscription, of sorts. But while 18-26 yr olds were to be trained, they were to only be called when needed f/ nat'l defense but were always ready against despotism. How would that have been possible if they did not hold their own arms?

And so I go back to the 1st TJ quote I listed....

...


...

...

[jimmy the one]

2. articles of confederation (x post)

nyc skp: I submit that he {Madison} refers to regular folks who are otherwise engaged full-time in ordinary careers and are enjoying their Second Amendment rights.

Uh, Madison couldn't've been suggesting that, since Federalist No. 46 by James Madison.. published on Jan 29, 1788 was nearly 4 years before the 2nd amendment was written.

james Madison (pseudonym publius), jan 1788: 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.
nyc skp replied: It seems very unlikely that Madison refers here to half a million "truly well regulated, full time, finely trained group of soldiers"..

Madison is referring to his idea of a de facto US militia which would exist if federalized (under the proposed constitution), & he mirrors closely what the articles of confederation dictated at the time for the states. That all future militia members need all be 'well regulated' or 'finely trained' is beside the point, & semantics.
A 'fleet in being' may not be well regulated or even well organized, but it is something which needs be accounted for, & if said fleet were to train yearly it would improve over time to become more well regulated & efficient.

nyc skp: It's a great essay, filled with great lines that I would like to have highlighted, but then almost all of it would have been highlighted.

jimmy's highlight: ... 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

Madison contends the militia would be 'fighting for their common liberties', which doesn't imply individual gun possession, but liberty in the collective national sense (2ndA was still in early draft form).
Over half the adult white males in America in late 1780s did not own firearms, most likely didn't even want one, too expensive or impractical, & so individual gun ownership was not a 'common liberty' james Madison was speaking of, especially since it wasn't in any constitution at the time.

Articles of Confederation (1777-87), VII. When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

Articles of Confederation (1777-87), VI: .. nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage

compare VI & VII with Madison's federalist 46: .. officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence

[X_Digger]

3. Seems pretty straightforward to me.

Acrobatic protestations from the peanut gallery aside.

Why would Madison (among others) write protection of an individual right into their respective state constitutions if it was to be some 'collective' right? Some of those were written before the federal constitution, some at the same time, some after.

[NYC_SKP]

4. He mentions 500,000 militia members at a time when the total U.S. population was under 4 million.

The first census in 1790 was just under 4,000,000.

When he mentions 500,000, or more than 1/4 of the entire population, Madison is referring to virtually all adult men.

Yeah, this was never about a trained and formal militia, it was about armed citizens who would be armed but could also be called to serve.

[jimmy the one]

5. 1790 census & madison's dream

nyc skp: He mentions 500,000 militia members at a time when the total U.S. population was under 4 million. The first census in 1790 was just under 4,000,000.
When he mentions 500,000, or more than 1/4 of the entire population, Madison is referring to virtually all adult men.

No he's not, since all free white adult males circa 1888 = ~800,000; he's likely excluding aged white males & certainly excluding slaves from the 4 million;
Madison is 'probably' referring to adult white males over 16 & less than aged (~45) - those more physically capable of fighting, & not yet aged (which later became rules for the militia law of 1792, 4 yrs after Madison wrote)

Free white males 16+; FWM <16; FW-women; All other Free; Slaves; Total
1790:.. 807,094 .......791,850...1,541,263(women)...59,150...694,280..3,893,635
http://en.wikipedia.org/wiki/1790_United_States_Census

skp: Yeah, this was never about a trained and formal militia, it was about armed citizens who would be armed but could also be called to serve.

You're part right, but Madison's 'dream' was for those armed citizens to be gung ho patriotic about it & thus become a 'well regulated militia'; he couldn't foresee free white males rejecting his militia dream.
Yet you didn't remark on your gaffe about Madison referring to the 2ndA, nearly 4 years prior to it being written: nyc skp: I submit that he {Madison} refers to regular folks who are otherwise engaged full-time in ordinary careers and are enjoying their Second Amendment rights.

Uh, Madison couldn't've been suggesting that, since Federalist No. 46 by James Madison.. published on Jan 29, 1788 was nearly 4 years before the 2nd amendment was written.

[jimmy the one]

6. state constitutions circa 1787

X-digger: Why would Madison (among others) write protection of an individual right into their respective state constitutions if it was to be some 'collective' right? Some of those were written before the federal constitution, some at the same time, some after.

These are the 'have arms' decrees in 8 states constitutions circa prior to the federal constitution. Tell me which ones were solely 'individual' rights decrees? None were, they hinged upon the militia common defense (militia centric):

Eight of the original states enacted their own bills of rights prior to the adoption of the United States Constitution. The following states included an arms-rights provision in their state constitutions:

VIRGINIA (June 12, 1776) That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.

DELAWARE(September 11, 1776) That a well-regulated militia is the proper, natural and safe defence of a free government.

PENNSYLVANIA (Sep 28, 1776) That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.

MARYLAND (November 11, 1776) That a well-regulated militia is the proper and natural defence of a free government.

NORTH CAROLINA (December 18, 1776) That the people have a right to bear arms for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under the strict subordination to, and governed by, the civil power.

VERMONT (July 8, 1777) That the people have the right to bear arms for the defence of themselves and the State …

MASSACHUSETTS (October 25, 1780) The people have a right to keep and bear arms for the common defence.

NEW HAMPSHIRE (June 2, 1784) A well regulated militia is the proper, natural, and safe defence of a state.

In addition to these legislative enactments of bills or declarations of rights, there were numerous other proclamations being promulgated at the time.

NEW YORK CONVENTION (July 7,1788) That the militia should always be kept well organized, armed and disciplined, and include, according to past usages of the states, all the men capable of bearing arms, and that no regulations tending to render the general militia useless and defenceless, by establishing select corps of militia, of distinct bodies of military men, not having permanent interests and attachments to the community, ought to be made.
NEW YORK CONVENTION (July 26,1788) That the people have the right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.

RHODE ISLAND RATIFICATION CONVENTION (May 29, 1790) That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.

[X_Digger]

7. Conjunction junction, what's your function?

If I have toast for breakfast AND lunch, that means both, yes?

Kentucky: The 1792 Kentucky constitution was nearly contemporaneous with the Second Amendment, which was ratified in 1791. Kentucky declared: "That the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned."

Gee, if it was to be a collective right, why all those 'themselves and..'

Don't trip over yourself there.

[jimmy the one]

8. Gee, if ccw was an individual right

digger: Gee, if it was to be a collective right, why all those 'themselves and..' Don't trip over yourself there.

You obviously have a very limited understanding of this, so I'll kindly advise you to avoid snarky comments or I will respond in kind.
You wrote this, to which I replied that state constitutions circa 1787 contained militia centric provisions, not just individual provisions, as you implied: digger wrote: Why would Madison (among others) write protection of an individual right into their respective state constitutions if it was to be some 'collective' right?

... and by the way re you above, where did madison write an individual provision in virginia's rkba, less yet 2ndA?

digger: Gee, if it was to be a collective right, why all those 'themselves and..'
Kentucky 1792: "That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned."
...1850, Kentucky: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

If it were an 'individual right', digger, why just the mention of 'common defense' in Tennesse?:

Tennessee: 1796: "That the freemen of this State have a right to keep and to bear arms for their common defence." 1834: "That the free white men of this State have a right to keep and to bear arms for their common defence."

Maine: 1819: "Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned."

Montana 1889: The right of any person to keep or bear arms in defense of his own home, person, and property.. shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.

New Mexico: 1912: "The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons.

North Carolina: : Same as 1868, but added "Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice.

Oklahoma: The right of a citizen to keep and bear arms in defense of his home, person, or property... shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons. Art. II, § 26 (enacted 1907).

Texas: Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. (enacted 1876)

Missouri: 1875: "That the right of no citizen to keep and bear arms in defense of his home, pers.... ; but nothing herein contained is intended to justify the practice of wearing concealed weapons."

Mississippi 1890: : The right of every citizen to keep and bear arms in defense of his home, person, or prope... but the legislature may regulate or forbid carrying concealed weapons.

Louisiana, 1974: The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. (enacted 1974).
1879: "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 abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed." http://www.freerepublic.com/focus/f-news/2977551/posts

[X_Digger]

9. Matrix-worthy dodge there.

Keanu's got nothing on you.

So, do you actually admit that all the 'themselves and' .. means that the right was individual in scope? ie, for protecting oneself among other reasons?

Or do you think that only *some* states thought of it as an individual right (e.g. Tennessee) while others thought of it as a collective right? Seems a bit of a stretch, especially when you check the early jurisprudence in some of those states.

*gasp* By jove, I think he's almost got it.

Home, person, and property indeed.

[jimmy the one]

10. digger's pseudo realism

digger: Or do you think that only *some* states thought of it as an individual right (e.g. Tennessee) while others thought of it as a collective right?

See if you can figure out what you said wrong, digger; I guess I confused you by mentioning so many states while you only mentioned one, so here's a hint:

Tennessee: 1796: "That the freemen of this State have a right to keep and to bear arms for their common defence." 1834: "That the free white men of this State have a right to keep and to bear arms for their common defence."

digger: Matrix-worthy dodge there. Keanu's got nothing on you.

Dunno what you refer to, don't care for pseudo-realistic movies. You must really enjoy pseudo realism tho, so apparent in your posts.

digger: .. do you think that only *some* states thought of it as an individual right while others thought of it as a collective right? Seems a bit of a stretch, especially when you check the early jurisprudence in some of those states.

Quite right, slick (for once), except it isn't a 'stretch'. Some states simply wanted an individual rkba 'inclusion' so as not to make it solely for common defense. It was moreso what developed prior to & about ratification of the constitution (for after about 25 yrs incoming states could waver away from intent of 2ndA, as well as abandonment of militia).
There were some state's minority viewpoints which wanted an individual right inclusion, but these concerns were dismissed by Madison when he wrote the 2ndA, not putting any mention of individual rkba in 2ndA. Pennsylvania for instance, under Wm Penn, did not have a colonial militia or at least not under govt, & was the last colony/state to have a militia (just prior to rev-war), iow Pennsy disapproved of militias, thus it's desire to include 'for themselves & the state'.
You see how you shoot yourself in the foot, for by claiming 'themselves and the state' reasoned for an individual rkba, yet Madison did not include 'for themselves and the state' in 2ndA, just militia, thus your argument collapses.

digger: *gasp* By jove, I think he's almost got it.

I got it decades ago mister, you're the one who needs a primer.

[X_Digger]

11. You're coming at the bill of rights almost as a 'grants' document.. which is bullshit.

It's right there in the preamble.

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

Abuse of whose powers? Declaratory and restrictive clauses against whom?

(Hint: the Government.)

Lol, I'm tickled at your contortions. Keep it up, I need a laugh.

[jimmy the one]

12. glad to oblige

digger: Lol, I'm tickled at your contortions. Keep it up, I need a laugh.

Sure, glad to oblige. I lift this from a post start I made on 'Civil Liberties' (this very group). I was so hoping to see a reply from you, but you disappointed as a 'no show'. Or maybe you just missed it.

Gun Control Updated: 1/17/2013 ACLU POSITION Given the reference to "a well regulated Militia" and "the security of a free State," the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right.
..... For seven decades, the Supreme Court's 1939 decision in United States v. Miller was widely understood to have endorsed that {collective militia} view. This position is currently under review and is being updated by the ACLU National Board in light of Supreme Court decision in D.C. v. Heller in 2008.
In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia. The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment.
However, particular federal or state laws on licensing, registration, prohibition, or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions.

Although ACLU policy cites the Supreme Court's decision in U.S. v. Miller as support for our position on the Second Amendment, our policy was never dependent on Miller. Rather, like all ACLU policies, it reflects the ACLU's own understanding of the Constitution and civil liberties.
Heller takes a different approach than the ACLU has advocated. At the same time, it leaves many unresolved questions, including what firearms are protected by the Second Amendment, what regulations (short of an outright ban) may be upheld, and how that determination will be made.
https://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/second-amendment

Oh digger, you 'LOL' now?

[X_Digger]

13. Well if the ACLU says so, it must be true, right (appeal to authority.)

Got anything with more teeth than that?

*yawn*