Bench Memos

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The Perennial Publius, part 29


In his final essay on military matters, Hamilton turns in Federalist No. 29 to the clause of the Constitution that puts the organization and discipline of the militia in the hands of the federal government. In language presaging that of the Second Amendment, he writes, “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.” To those who worry about a standing army, Hamilton asks, which will you have—a regular army large enough for all contingencies, or a smaller one augmented by a militia controlled by the same authority? For you must have one or the other.

There is ammunition in this essay for both sides of our own debates over gun control, to the extent that those debates turn on the meaning of the Second Amendment, the question of who is in the “militia,” and the purposes to be served by that institution. On the one hand, Hamilton scoffs at the “everyone’s in the militia” view of the matter, as any veteran soldier would:

“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 intitle them to the character of a well regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.”

Instead, what will answer the country’s needs is a “select corps of moderate size . . . an excellent body of well trained militia,” which is “the only substitute that can be devised for a standing army.”

On the other hand, Hamilton views the militia as a potentially revolutionary force, and he means that in a good way. If called upon by federal officials “for the purpose of rivetting the chains of slavery upon a part of their countrymen,” what will the militia do but “direct their course . . . to the seat of the tyrants . . . to crush them in their imagined intrenchments of power and to make them an example of the just vengeance of an abused and incensed people?”

Does the Second Amendment—not a part of the Constitution Hamilton is defending here—incorporate into that document the revolutionary principle of which he speaks here? Can a constitution logically contain a provision contemplating a popular revolution against the government that constitution calls into being?

When tyrants meet the people’s just vengeance, does anyone care about the answer to that question?

(For explanation of this recurring feature, see here.)

Tags: Franck


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