The most comprehensive defense of the Constitution was, of course, The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay under the pen name “Publius” and addressed to the “People of the State of New-York.” Some seventy-six of the essays were published in New York newspapers between October 27, 1787, and April 2, 1788, and then John and Archibald M’Lean reprinted them in two volumes, the first on March 22 and the second (which included eight new essays) on May 28.60
Five of the essays are pertinent here. The Federalist No. 28, written by Hamilton and first published in the New York Independent journal on December 26, 1787, addressed head-on the antifederalist argument that a federal tyranny could result:
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defence which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state....
The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them.61
Whatever the validity of the first above argument, the second argument—that usurpation will be minimized if “the citizens understand their rights”—implied that a bill of rights could promote this understanding, but The Federalist authors remained impervious to that suggestion. Whether the citizens “are disposed to defend” their rights would have depended in part on whether they were armed.
More explicit was The Federalist No. 29, also penned by Hamilton and published in the Independent journal on January 9, 1788—just after the issue of the right to bear arms was raised in the “Dissent of the Minority” in Pennsylvania (discussed in the next chapter). It began by analyzing Congress’ power over the militia as follows:
The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defence, and of watching over the internal peace of the Confederacy.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defence.... This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority.62
This uniformity was particularly necessary in regard to arms—muskets of different bore sizes required different sizes of balls. This “well regulated militia” was provided for in the Federal-State division of duties set forth in Article I, Section 8 of the Constitution, which Hamilton proceeded to quote. He continued:
If a well regulated militia be the most natural defence 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.63
The above usage presaged the Second Amendment’s declaration that a well regulated militia is necessary to the security of “a free State”—that term meant “a free country,” not a state government. The availability of the militia, Hamilton continued, would minimize the need for a standing army. However, opponents of the Constitution objected that “there is nowhere any provision in the proposed Constitution for calling out the posse comitatus, to assist the magistrate in the execution of his duty,” which would instead be carried out with military force. (The posse comitatus, or power of the county, included all males aged 15 or over, who the sheriff could call out to assist him to keep the peace and pursue felons.64) Yet the power of Congress to pass all laws necessary and proper to fulfill its substantive powers “would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws.”65 Indeed, the militia power assumed the role of the armed citizen.
The Constitution’s detractors also argued that the militia would become dangerous to liberty, because “select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power.”66 Hamilton responded that the most that could be realistically expected was that the people be armed, not that they be subject to strict military discipline:
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.... To oblige the great body of yeomanry and of the other classes of 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.... Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped....
... 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 rights and those of their fellow citizens.67
The above distinguishes “the people at large” who would be “properly armed” from “a well regulated militia.” It refers to “a large body of citizens” hardly inferior to soldiers in the use of arms, “who stand ready to defend their rights.” In short, the right of the people to keep and bear arms—especially military arms—was a fact, not a matter for paper guarantees.
In The Federalist No. 45, published in the January 26 Independent Journal, Madison emphasized the limited powers delegated to the federal government: “The powers delegated by the proposed Constitution to the federal government are few and defined.” These powers “will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce,” while “the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people....”68 As will be seen, the federalists would depict as a blatant falsehood the antifederalist suggestion that the federal government had any power over such rights as a free press and keeping and bearing arms.
From the perspective of what became the Second Amendment, the most important essay was The Federalist No. 46, written by Madison and first published in the New York Packet on January 29, 1788. It clearly distinguished between the people and the two governments: “The Federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes.” Further, “the ultimate authority... resides in the people alone,” not in “the different governments.”69 As for the argument that the federal government would raise a standing army to oppress the people, Madison replied:
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 t
he 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.70
A militia of “half a million of citizens with arms in their hands” would have been virtually all able-bodied male citizens out of the American population of three million. The “citizens” constituted the militia, and they had “arms in their hands.” The success of this armed citizenry had been demonstrated in the American Revolution. Unlike other peoples, the Americans were armed, and the resistance of the state governments would bar a federal tyranny. By contrast, the European monarchies were “afraid to trust the people with arms.” In short, the keeping and bearing of arms by the citizens would preserve the republic and protect liberty.
The authors of The Federalist Papers contended that an armed populace and state resistance, not paper guarantees, would prevent federal usurpation based on military force. But they seriously underestimated the groundswell of public support for a bill of rights, including guarantees such as arms bearing and free speech that would help protect other rights. “Publius” failed to mention the agitation for a bill of rights in the essays originally published in the newspapers and tardily mentioned the issue in the second to the last chapter of the second volume of The Federalist Papers as printed in book form, which was released on May 28, 1788. Authored by Hamilton, The Federalist No. 84 began with the condescending title “Certain General and Miscellaneous Objections to the Constitution Considered and Answered.”71
Hamilton began by noting that several state constitutions, including New York’s, contained no bill of rights. Ironically, the Constitution’s opponents in New York professed high regard for the state Constitution, but “are among the most intemperate partisans of a bill of rights.” Moreover, like that of New York, the federal Constitution included various guarantees in its text, such as trial by jury in criminal cases and the writ of habeas corpus.72
More importantly, bills of rights are for monarchies, not republics: “bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favour of privilege, reservations of rights not surrendered to the prince.” Magna Carta, the Petition of Right, and the Declaration of Rights of 1689 were familiar examples. Such instruments “have no application to constitutions professedly founded upon the power of the people,” and indeed here “the people surrender nothing; and as they retain every thing they have no need of particular reservations.”73
To be sure, the Constitution delegated no explicit power to Congress to regulate the press or the keeping and bearing of arms. Indeed, unable to anticipate developments in later epochs, Hamilton wrote that the federal Constitution “is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns.” He asserted that the Constitution’s preamble—declaring that “we the people” adopt the Constitution “to secure the blessings of liberty to ourselves and our posterity”—“is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.”74 In fact, the preamble has never been interpreted by the courts as having any legal effect, and instead of “volumes of aphorisms” adopted by the people, judges would later pick and choose what would or would not be a “right.”
To supporters of a bill of rights, Hamilton’s arguments just begged the question, for the actual extent of the powers of the proposed government were in great dispute, and a declaration of reservations would alleviate their apprehensions. Such sarcastic references to the state bills of rights must have only hardened the Constitution’s opponents in their opposition. But Hamilton’s following warning contained great foresight, which would actually come true:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?75
In short, no matter how a bill of rights might be written, those wishing to diminish the rights declared would manipulate the wording of the provisions to do so. For example, Hamilton queried: “What signifies a declaration, that ‘the liberty of the press shall be inviolably preserved’? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” This could be said about what became the First and the Second Amendments. Yet it was not inevitable that clearly written guideposts would always fail. As Hamilton further noted, security for rights would not depend on “fine declarations” but “must altogether depend on public opinion, and on the general spirit of the people and of the government.”76 Yet these “fine declarations” would influence and be a reminder to the people and the government alike.
Stating the case against ratification of the Constitution without a bill of rights were the “Letters from the Federal Farmer,” which were first published in October and November of 1787 and were reprinted in pamphlet form throughout the states. From the beginning, they were attributed to Richard Henry Lee of Virginia, although his authorship was never proven, and the consensus today is that the author was Melancton Smith of New York. Edward Carrington of Virginia wrote to Thomas Jefferson that “these Letters are the best of anything that has been written” against the Constitution.77
What was it about the “rights” in a bill of rights that was considered so indispensable? In his second “Letter,” dated October 9, the “Federal Farmer” declared: “There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed—a free and enlightened people, in forming this compact, will not resign all their rights to those who govern, and they will fix limits to their legislators and rulers, which will soon be plainly seen by those who are governed, as well as by those who govern....” Contrary to the Constitution’s proponents, “I still believe a complete federal bill of rights to be very practicable.”78
The federalists contended that the armed populace precluded any federal oppression and rendered a bill of rights unnecessary. In response, the “Letter” dated October 10 predicted the early employment of a standing army and oppressive taxation. The “Federal Farmer” contended:
It is true, the yeomanry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended—and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions. It is easily perceived, that if they have not their proper negative upon passing laws in congress, or on the passage of laws relative to taxes and armies, they may in twenty or thirty years be by means imperceptible to them, totally deprived of that boasted weight and strength: This may be done in a great measure by congress; if disposed to do it, by modeling the militia. Should one fifth or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenseless.... I see no provision made for calling out the posse comitatus for executing the laws of the union, but provision is made for congress to call forth the militia for the execution of them—and the militia in general, or any select part of it, may be called out under military officers, instead of the sheriff to enforce an execution of federal laws, in the first instance, and thereby introduce an entire military
execution of the laws.79
The “Letter” dated October 12 returned to the theme of a bill of rights. In the state constitutions, “certain rights have been reserved to the people,” and state legislatures may “make no laws infringing upon them.” These rights “are established as fundamental.” The federal Constitution itself, by prohibiting a bill of attainder or ex post facto law, establishes “a partial bill of rights,” principles on which the federal government “can never infringe.” “This bill of rights ought to be carried further, and some other principles established, as a part of this compact between the people of the United States and their federal rulers.” It would include “essential rights, which we have justly understood to be the rights of freemen....”80
A second series of “Letters from the Federal Farmer to the Republican” were advertised in New York newspapers beginning on May 2, 1788, but each essay was datelined months earlier. It was distributed throughout the states by, most prominently, John Lamb of the New York Federal Republican Committee.81
“Letter VI,” dated December 25, 1787, noted: “Of rights, some are natural and unalienable, of which even the people cannot deprive individuals: Some are constitutional or fundamental: these cannot be altered or abolished by the ordinary laws; but the people, by express acts, may alter or abolish them.” The former, unchangeable rights were substantive in nature, while the latter were procedural rights, such as jury trial and the writ of habeas corpus.82 Turning to matters of governmental structure, the Federal Farmer depicted the militia clause as follows: “Each state must appoint regimental officers, and keep up a well regulated militia.”83
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