References to the Militia in The Federalist

Prof. Eugene Volokh, UCLA Law School

 

The Federalist

              The Federalist, of course, is the collection of 85 articles in support of the Constitution written by James Madison, Alexander Hamilton, and John Jay under the pseudonym "Publius."  The articles were published in 1787 in New York newspapers, and obviously didn't mention the Second Amendment, which was still four years in the future.  The Bill of Rights, of course, was proposed to remedy a perceived inadequacy in the original Constitution.  Still, the Federalist tells us something about contemporary understandings of the militia and its role.

              Note that the original Constitution's Militia Clauses are as follows:

              Art. I, sec. 8:  The Congress shall have Power . . .

              To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

              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 the Congress; . . .

Federalist No. 29, by Alexander Hamilton (some paragraph breaks added):

              If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.  If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions.  If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force.  If it cannot avail itself of the former, it will be obliged to recur to the latter.  To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. . . .

              By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government.  It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power.  What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen.  But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

              "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution.  A tolerable expertness in military movements is a business that requires time and practice.  It is not a day, or even a week, that will suffice for the attainment of it.

              "To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.  It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States.  To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured.

              "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

              "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia.  The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need.  By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it.

              "This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.  This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

Federalist No. 46 (James Madison) (some paragraph breaks added):

              [Madison is explaining why the federal government will be unable to suppress state governments:]

              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.  The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger.  That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

              Extravagant as the supposition is, let it however be made.  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.  Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.