Sunday, February 25, 2018

"A Well Regulated Militia" - part 4

Madison, Jefferson, and Hamilton: the Second Amendment and the Militia Acts

Jefferson’s library contained Fletcher’s Discourse; Jefferson spoke well of Fletcher.[17] Moreover, James Madison, who wrote the Bill of Rights which included the Second Amendment, was a regular visitor at Monticello.[18] Konig, in “The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ‘The Right of the People to Keep and Bear Arms,’”[19] points out that the loss of the militia right in Scotland was an influence in the British North American colonies. Americans, as British subjects, yet not English, feared that, just as Scotland had lost its militia, so might Americans. The British American founders mixed their republicanism with federalism, and so the states were granted the rights to choose the officers of the militia.

No record of James Madison’s reasons for including the Second Amendment in the Bill of Rights survives. For the other amendments, Madison’s rationale is plain and some of it is set out in The Federalist Papers[20], though it is wished more was known about Madison’s thought.[21] But why the Second Amendment?

The Federalist Papers touch on the militia in two places: Federalist 29, by Hamilton, and Federalist 46 by Madison. In Federalist 29, Hamilton makes the case for a “select militia,” well-regulated by the Federal government, but with some authority reserved to the states:

It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

In Federalist 29, Hamilton professes surprise that this had become a sticking point in the acceptance of the constitution; the idea that there was a right to form a paramilitary force and rebel against the proposed Federal government was present even then. Konig cites Scots Highlander refugees who supported this view in North Carolina.[22]

In Federalist 46, Madison addresses the possibility that the Federal government would become tyrannical. He badly misjudged the course of history in writing: “Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States,” but did also comment:

If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.

He did not foresee the vast standing military of our time and so, as Fletcher might have said of the baronial militias, Madison said of the state militias “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.”

Madison included James Burgh’s Political Disquisitions[23] in his “Report on Books for Congress,”[24] the seed of the Library of Congress, and Burgh extensively quoted Fletcher[25]. The arguments were, as Konig points out in “A Missing Transatlantic Context,”[26] derived from the Scottish militia debate and ultimately Fletcher. Returning to the why of the Second Amendment, Prof. Carl T. Bogus, in his essay “The Hidden History of the Second Amendment,”[27] argues persuasively that the Second Amendment was included in the Bill of Rights to secure the ratification of the Constitution by the state of Virginia, and that it did so by protecting slave patrols from federal intervention. One can add to that that Madison does not seem to have cared very much about either firearms or militias. His “Notes on Government” do not mention either; he was much more interested in issues of governance in historical context.[28] Bogus, as I said, is persuasive, but the available evidence is indirect; his case is not proven and unless new historical evidence comes to light, seems unlikely to be proven.

Whatever Madison’s reasons, first the Second Amendment was ratified, and then the Militia Acts of 1792 were passed, creating a network of Fletcherian militias in the USA. It is difficult to see how Fletcher could not have been used as a reference; the US militia, save only in specifics of training methods, was very much as Fletcher describes. Service in the militias immediately became a deeply resented obligation, often honored in the breach. In the end the same arguments that ended the advocacy of the Scottish militia were taken up in the United States. Hamilton’s argument in Federalist 29 was proven correct; putting the entire USA under arms was deemed expensive and unnecessary and ultimately the states relieved most citizens of their militia duties.[29]

Based on the experience of the Revolution, the formal role of the militia was reduced to domestic peacekeeping and first line home defense, and there, mostly, it has stayed.

Notes on Part 4

[17] On Fletcher, Letter from Thomas Jefferson to the Earl of Buchan, 10 July 1803. “the political principles of that patriot were worthy the purest periods of the British constitution. They are those which were in vigour.” Jefferson badly missed the point here; Fletcher was a marginalized reactionary.

[18] Gaye Wilson, and Anna Berkes. “James Madison.” Thomas Jefferson Encyclopedia. Monticello, Virginia: Thomas Jefferson Foundation, February 2003.

[19] David Thomas Konig. “The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ‘The Right of the People to Keep and Bear Arms.’” Law and History Review 22, no. 1 (Spring 2004): 119–59. doi:10.2307/4141667.

[20] Hamilton, Alexander, John Jay, and James Madison. The Federalist Papers, 1788. 

[21] See: James Madison. “Report on Books for Congress, [23 January] 1783.” Accessed July 13, 2017. Also see: Sheehan, Colleen A. The Mind of James Madison: The Legacy of Classical Republicanism. Cambridge: Cambridge University Press, 2014.

[22] Konig, “A Missing Transatlantic Context,” p. 150. Ironically, many Scots Highland refugees in the colonies were English loyalists.

[23] Burgh, James. Political Disquisitions; or, An Enquiry into Public Errors, Defects, and Abuses Illustrated by, and Established upon Facts and Remarks, Extracted from a Variety of Authors, Ancient and Modern. Philadelphia: Printed and sold by Robert Bell, in Third-Street; and William Woodhouse, in Front-Street, 1775.

[24] Madison, James. “Report on Books for Congress, 1783,” January 23, 1783. 

[25] Burgh, Political Disquisitions Vol II, p.391.

[26] David Thomas Konig. “The Second Amendment: A Missing Transatlantic Context…” cited above.

[27] Bogus, C. T. “The Hidden History of the Second Amendment.” University Of California Davis Law Review 31, no. 2 (Winter 1998): 309–408.

[28] Sheehan, The Mind of James Madison, cited above.

[29] John K. Mahon. History of the Militia and the National Guard. Macmillan Wars of the United States. New York : London: Macmillan ; Collier Macmillan, 1983.

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