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The Embarrassing Second Amendment


❶Joining McKee were Shwartz and Nygaard. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import.

News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

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By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority, at the same time, must be prevented; or the majority, having such co-existent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.

If the impulse and the opportunity be suffered to coincide, we well know, that neither moral nor religious motives can be relied on as an adequate control.

They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together; that is, in proportion as their efficacy becomes needful. From this view of the subject, it may be concluded, that a pure democracy, by which I mean, a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction.

A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert, results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual.

Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronised this species of government, have erroneously supposed, that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.

Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union. The two great points of difference, between a democracy and a republic, are, first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.

Under such a regulation, it may well happen, that the public voice, pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people.

The question resulting is, whether small or extensive republics are most favourable to the election of proper guardians of the public weal; and it is clearly decided in favour of the latter by two obvious considerations. In the first place, it is to be remarked, that however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude.

Hence, the number of representatives in the two cases not being in proportion to that of the constituents, and being proportionally greatest in the small republic, it follows, that if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practise with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit, and the most diffusive and established characters.

It must be confessed, that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects.

The federal constitution forms a happy combination in this respect; the great and aggregate interests, being referred to the national, the local and particular to the state legislatures.

The other point of difference is, the greater number of citizens, and extent of territory, which may be brought within the compass of republican, than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former, than in the latter.

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.

Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.

Besides other impediments, it may be remarked, that where there is a consciousness of unjust or dishonourable purposes, communication is always checked by distrust, in proportion to the number whose concurrence is necessary. Hence it clearly appears, that the same advantage, which a republic has over a democracy, in controling the effects of faction, is enjoyed by a large over a small republic.

Does this advantage consist in the substitution of representatives, whose enlightened views and virtuous sentiments render them superior to local prejudices, and to schemes of injustice? It will not be denied, that the representation of the union will be most likely to possess these requisite endowments.

Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest?

In an equal degree does the increased variety of parties, comprised within the union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the union gives it the most palpable advantage. Is not a well-regulated militia sufficient for every purpose of internal defense? And which of you, my fellow citizens, is afraid of any p. Some writers, such as "Centinel," feared that national control over the militia would transform that bulwark of democracy into a tool of oppression:.

This section will subject the citizens of these states to the most arbitrary military discipline: The militia of Pennsylvania may be marched to Georgia or New Hampshire, however incompatible with their interests or consciences; in short, they may be made as mere machines as Prussian soldiers. Other Antifederalist propagandists believed that the true motive for assertion of national control over the militia was not to use it, but to destroy it, and thus eliminate any opposition to the new standing army.

The Bostonian who used the pseudonym "John De Witt" asked these questions about the militia clauses:. Let us inquire why they have assumed this great power. Was it to strengthen the power which is now lodged in your hands, and relying upon you and you solely for aid and support to the civil power in the execution of all the laws of the new Congress? Does the complexion of this new plan countenance such a supposition?

When they unprecedently claim the power of raising and supporting armies, do they tell you for what purposes they are to be raised? How they are to be employed? How many they are to consist of, and where stationed? Is this power fettered with any one of those restrictions, which will show they depend upon the militia, and not upon this infernal engine of oppression to execute their civil laws? The nature of the demand in itself contradicts such a supposition, and forces you to believe that it is for none of these causes--but rather for the purpose of consolidating and finally destroying your strength, as your respective governments are to be destroyed.

They well know the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom they mean to exercise the powers granted in that government It is asserted by the most respectable writers upon government, that a well regulated militia, composed of the yeomanry of the country, have ever been considered as the bulwark of a free people. Tyrants have never placed any confidence on a militia composed of freemen. Anonymous pamphleteers and propagandists were not the only persons concerned about standing armies and the militia.

Richard Henry Lee, in a letter that was widely circulated in Virginia, combined the contradictory arguments that the militia would be abandoned in favor of a standing army, and that the militia would be strengthened and forged into an instrument of tyranny. He foresaw that a small proportion of the total militia would be made into a select unit, much like a standing army, while the rest of the militia would be disarmed:. 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 any army, while the latter will be defenceless.

A necessary premise underlying Anti-federalist attack on the militia clauses of the Constitution was that these clauses operated to place exclusive jurisdiction over the militia in the hands of the general government. Though the Federalists denied this premise, it was affirmed even by Luther Martin and Elbridge Gerry, who had been members of the Federal Convention, but who now opposed the Constitution. Martin is particularly interesting because he advanced all of the contradictory arguments used by the antifederalists.

Speaking on November 29, to the Maryland legislature, he said:. Engines of power are supplied by the standing Army--unlimited as to number or its duration, in addition to this Government has the entire Command of the Militia, and may call the whole Militia of any State into Action, a power, which it was vainly urged ought never to exceed a certain proportion. By organizing the Militia Congress have taken the whole power from the State Governments; and by neglecting to do it and encreasing the Standing Army, their power will increase by those very means that will be adopted and urged as an ease to the People.

Martin later invoked the opposite approach, that the militia would be subject to ruthless discipline and martial law, and would be marched to the ends of the continent in the service of tyranny. In a letter published on January 18, , Martin wrote that the new system for governing the militia was "giving the states the last coup de grace by taking from them the only means of self preservation.

Elbridge Gerry, like many of the pamphleteers, viewed centralized military power as inseparable from monarchy: By the edicts of authority vested in the sovereign power by the proposed constitution, the militia of the country, the bulwark of defence, and the security of national liberty is no longer under the control of civil authority; but at the rescript of the Monarch, or the aristocracy, they may either be employed to extort the enormous sums that will be necessary to support the civil list--to maintain the regalia of power--and the splendour of the most useless part of the community, or they may be sent into foreign countries for the fulfilment of treaties, stipulated by the President and two thirds of the Senate.

The supporters of the proposed constitution were well-prepared to meet these and similar arguments. They had the support of America's two national heroes, George Washington and Benjamin Franklin, and this helped make the Constitution respectable, as well as alleviating fears. Articles favoring the Constitution, such as the Federalist Papers , were often reprinted in distant states. Intelligent and well-educated, the proponents of the new government carefully and consistently answered the arguments of their rivals.

To the general argument that there were not sufficient restrictions on the power of the proposed general government, the federalists replied that no bill of rights was necessary. This was because the Constitution would establish a novel type of government, one of enumerated powers; restrictions were necessary only where full sovereignty was conferred. In Federalist Number 84, Alexander Hamilton made the argument in these words:.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince Such was MAGNA CHARTA, obtained by the barons, sword in hand from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I, in the beginning of his reign.

Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in , and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants.

To particular criticism of the military clauses of the proposed Constitution, both Hamilton and Madison replied in detail in the Federalist Papers. Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defence.

This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were.

War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice. Hamilton did not, however, go so far as to say that standing armies were a good thing. Instead, he argued that a strong militia would minimize the need for them.

Madison also addressed himself to the fear that the new national government would disarm the militia and destroy state government. He first argued that the states would still have concurrent power over the militia, thus denying that the proposed Constitution gave exclusive jurisdiction over the militia to the general government. He also pointed out that the militia, comprised of half a million men, was a force that could not be overcome by any tyrant.

The arguments of the federalists appear to have quieted the fears of their countrymen, since the early state conventions were all easy victories for the new Constitution. Between December 7, and January 9, , Delaware, Pennsylvania, New Jersey, Georgia and Connecticut all ratified unconditionally and overwhelmingly; the vote was unanimous in three of these states.

In Massachusetts, the contest was close. On February 6, , the state convention ratified the new Constitution by a narrow margin. On the other hand, Maryland overwhelmingly approved the Constitution on April 28, South Carolina was next, on May 23, Eight states had now ratified the document and only one more was needed. All of the ratifications, except Massachusetts, had been by majorities of two-thirds or more. The remaining states were to see close contests, and all of them would suggest that a Bill of Rights be added to the Constitution.

New Hampshire, on June 21, , became the ninth state to approve the new form of government, thus assuring that the proposed Constitution would go into effect. The New Hampshire convention proposed some amendments in its ratifying resolution. Among the proposals were a three-fourths vote requirement for keeping standing armies, a flat prohibition on quartering troops, and a prohibition against Congressional disarmament of the militia.

Although no records were kept of the debates, it seems likely that the delegates feared that New England's experiences with General Gage's redcoats would be repeated. As yet undecided, Virginia was vital to the Union as the largest, richest, and most populous state. The Virginia convention was also important because it was the only one in which the military clauses of the Constitution were extensively discussed. The main protagonist of the Virginia debates was Patrick Henry, backwoods lawyer, ardent republican, and incomparable orator.

By means of the rhetorical question, Henry was able to capture the fears and emotions which led to the adoption of the Second Amendment:. A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders?

Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? Your militia is given up to Congress, also, in another part of this plan: You cannot force them to receive their punishment: By this, sir, you see that their control over our last and best defence is unlimited.

If they neglect or refuse to discipline or arm our militia, they will be useless: If we make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the President, in the field, at the head of his army, can prescribe the terms on which he shall reign master, p.

While other critics lacked Henry's oratorical talents, they also feared disarmament of the militia by the new national government. George Mason, for example, spoke as follows:. There are various ways of destroying the militia. A standing army may be perpetually established in their stead.

I abominate and detest the idea of government, where there is a standing army. The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless--by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them Mason then went on to cite the case of a former British governor of Pennsylvania who had allegedly advised disarmament of the militia as part of the British government's scheme for "enslaving America.

This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia In these words lie the origin of the Second Amendment.

The new government should be allowed to keep its broad general military powers, but it should be forbidden to disarm the militia.

Madison, leader of the Federalist forces, still argued that the militia clauses were adequate as written. He said the states and national government would have concurrent power over the militia. In response to a question, he explained why the general government was to have power to call out the militia in order to execute the laws of the union:. If resistance should be made to the execution of the laws, he said, it ought to be overcome. This could be done only in two ways--either by regular forces or by the people.

If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army. The best way to do these things was to put the militia on a good and sure footing, and enable the government to make use of their services when necessary. It is interesting to note that Madison uses the words "people" and "militia" as synonymous, as does the Second Amendment, which he was later to draft.

The Federalists still maintained that a bill of rights was unnecessary where there was a government of enumerated powers. Governor Randolph, who had attended the Philadelphia Convention and had refused to sign the Constitution, but who was now supporting its adoption, spoke as follows:.

On the subject of a bill of rights, the want of which has been complained of, I will observe that it has been sanctified by such reverend authority, that I feel some difficulty in going against it. I shall not, however, be deterred from giving my opinion on this occasion, let the consequence be what it may.

At the beginning of the war, he had no certain bill of rights; for our charter cannot be considered as a bill of rights; it is nothing more than an investiture, in the hands of the Virginia citizens, of those rights which belonged to British subjects. When the British thought proper to infringe our rights, was it not necessary to mention, in our Constitution, those rights which ought to be paramount to the power of the legislature?

Why is the bill of rights distinct from the Constitution? I consider bills of rights in this view--that the government should use them, where there is a departure from its fundamental principles, in order to restore them.

This statement is very important, because it clearly explains how men in the eighteenth century conceived of a right. A right was a restriction on governmental power, necessitated by a particular abuse of that power. The Virginia convention, however, decided that it would be wise to impose restrictions on the power of the general government before abuses occurred.

So the delegates appended to their ratification resolution a long document recommended to the consideration of the Congress. This document is divided into two distinct parts: The declaration of principles tells much about the social and political philosophy of eighteenth century Americans. The theory of government as a social compact is affirmed.

There are five provisions that relate directly to the background of the Second Amendment. The third principle condemns the Anglican doctrine of nonresistance as "absurd, slavish, and destructive of the good and happiness of mankind.

The seventh principle is "that all power of suspending laws or the execution of laws by any authority, without the consent of the representatives of the people in the legislature is injurious to their rights, and ought not to be exercised. Seventeenth, That the people have a right to keep and bear arms; 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 are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

Eighteenth, That no Soldier in time of peace ought to be quartered in any house without the consent of the owner, and in the time of war in such manner only as the laws direct. Nineteenth, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead. These words encapsulate the Whig point of view in the long debate over the relative merits of standing armies and the militia.

The specific amendments that were proposed to protect these principles were:. Ninth, That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses. Tenth, That no soldier shall be inlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

Eleventh, That each State respectively shall have the power to provide for organizing, arming and disciplining it's own Militia, when soever Congress shall omit or neglect to provide for the same.

That the Militia shall not be subject to Martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own State.

It is important for our purposes to note that there is no mention here of any individual right. There might never have been a federal Bill of Rights had it not been for one alarming event that is almost forgotten today. As part of the price of ratification in New York, it was agreed unanimously that a second federal convention should be called by the states, in accordance with Article V of the Constitution, to revise the document. Governor Clinton wrote a circular letter making this proposal to the governors of all the states.

Madison feared that a new convention would reconsider the whole structure of government and undo what had been achieved. The Bill of Rights was thus born of Madison's concern to prevent a second convention which might undo the work of the Philadelphia Convention, and also of his concern to save his political future in Virginia. On the other side such men as Patrick Henry understood perfectly the political motives involved.

He looked upon the passage of the Bill of Rights as a political defeat which would make it impossible to block the centralization of all power in the national government.

Madison had outmaneuvered the anti-federalists by drafting the Bill of Rights very soon after the First Congress met. Madison's original draft of the provision that eventually became the Second Amendment read:. The right of the people to keep and bear arms shall not be infringed; a well armed but well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

There was debate in Congress over the religious exemption, and it was removed. Otherwise, there was general discussion of standing armies and the militia, and widespread support for the proposal. It became part of the Constitution with the rest of the Bill of Rights on December 15, Considering the immediate political context of the Second Amendment, as well as its long historical background, there can be no doubt about its intended meaning. There had been a long standing fear of military power in the hands of the executive, and, rightly or wrongly, many people believed that the militia was an effective military force which minimized the need for such executive military power.

Some even feared disarmament of the militia. The Second Amendment was clearly and simply an effort to relieve that fear. Neither in the Philadelphia Convention, in the writings of the pamphleteers, in the newspapers, in the convention debates, nor in Congress was there any reference to hunting, target shooting, duelling, personal self-defense, or any other subject that would indicate an individual right to have guns.

Every reference to the right to bear arms was in connection with military service. Thus the inevitable conclusion is that the "collectivist" view of the Second Amendment rather than the "individualist" interpretation is supported by history.

It thus becomes necessary to examine the decisions of the Supreme Court in order to determine whether that body has expanded the right to bear arms beyond what was intended in The Second Amendment has been directly considered by the Supreme Court in only four cases: Cruikshank , [79] Presser v. Illinois , [80] Miller v. Texas [81] and United States v. In Cruikshank , the defendants had been convicted of conspiracy to deprive negro citizens of the rights and privileges secured to them by the Constitution and laws of the United States, in violation of the criminal provisions of the Civil Rights Act of Among the rights violated were the right to peaceably assemble and the right to keep and bear arms for a lawful purpose.

Chief Justice Waite, speaking for the majority, held that the rights violated by the defendants were not secured by the Constitution or laws of the United States, and thus the judgment of conviction was affirmed.

The chief justice began with a long discussion of the nature of the federal system in general, and the attributes of state and national citizenship in particular. The only rights protected by the national government were those necessary for participation in that government. The right to petition Congress would be such a right, but a person must look p.

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v.

Miln , 11 Pet. The only dissenter in Cruikshank was Justice Clifford, who found the indictment vague on its face. He thus concurred in the result reached by the majority without discussing any constitutional issues.

The next, and undoubtedly the most important Second Amendment case was Presser v. Illinois [84] decided in Herman Presser, a German-American, was the leader of Lehr und Wehr Verein , a fraternal, athletic and paramilitary association incorporated under Illinois law.

He was convicted for parading and drilling with men under arms, in violation of an Illinois statute, and was fined ten dollars. On appeal to the United States Supreme Court, it was contended that the Illinois statute conflicted with the military powers given to Congress by the Constitution, with federal statutes passed in pursuance of those powers, and with various other parts of the Constitution, including the Second Amendment.

The Supreme Court unanimously rejected all of these claims and affirmed the conviction. It should be emphasized that Presser was argued and decided as a case presenting broad issues of the relationship of state and federal military power, and that the Second Amendment was only one aspect of that question.

In reference to the Illinois statute, the Court observed:. We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep p.

But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.

The Court cited Cruikshank in support of this proposition. The inapplicability of the Second Amendment to the states was a sufficient ground for rejecting Presser's Second Amendment contentions, but the Court did not stop there. It preferred to discuss the problem further and make clear the nature of the right protected by the Second Amendment.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

One view of the Second Amendment suggests that this dicta constitutes the first step toward incorporating the right to bear arms into the Fourteenth Amendment, [87] apparently forgetting that the Court was laying the Second Amendment "out of view. To further clarify its view that the Second Amendment is concerned only with military matters, the opinion focuses on Presser:.

The plaintiff in error was not a member of the organized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offence for which he was convicted and sentenced.

The question is, therefore, had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State? If the plaintiff in error has any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred.

The obvious implication here is that any right to bear arms by virtue of the Second Amendment, even if asserted against the national government, p. This implication is confirmed later in the opinion, as the Court declared:. The right to voluntarily associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship.

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country.

They cannot be claimed as a right independent of law. Thus the Presser case clearly affirms the meaning of the Second Amendment that was intended by its framers. It protects only members of a state militia, and it protects them only against being disarmed by the federal government.

There is no individual right that can be claimed independent of state militia law. Furthermore, the dicta relating to preservation of the nation's military capacity could not be used as the basis for questioning any regulation of private firearms, unless such a regulation violated an act of Congress; Congress is obviously the best judge of the proper means of preserving the nation's military capacity.

The third, and least important, of the Second Amendment cases was Miller v. The Supreme Court unanimously dismissed the claim in one sentence, relying on the inapplicability of these provisions to the states, and citing Cruikshank and other cases. Defendants Miller and Layton were indicted for violation of the National Firearms Act of , [92] which was designed to help control gangsters, and which infringed the right to keep and bear sawed off shotguns, among other arms.

The District Court of the United States for the Western District of Arkansas sustained a demurrer and quashed the indictment, holding the Act unconstitutional on Second p. The first open designation of which essay belonged to whom was provided by Hamilton who, in the days before his ultimately fatal gun duel with Aaron Burr , provided his lawyer with a list detailing the author of each number.

This list credited Hamilton with a full sixty-three of the essays three of those being jointly written with Madison , almost three-quarters of the whole, and was used as the basis for an printing that was the first to make specific attribution for the essays. Madison did not immediately dispute Hamilton's list, but provided his own list for the Gideon edition of The Federalist. Madison claimed twenty-nine numbers for himself, and he suggested that the difference between the two lists was "owing doubtless to the hurry in which [Hamilton's] memorandum was made out.

Statistical analysis has been undertaken on several occasions to try to ascertain the authorship question based on word frequencies and writing styles. Nearly all of the statistical studies show that the disputed papers were written by Madison, although a computer science study theorizes the papers were a collaborative effort.

The Federalist Papers were written to support the ratification of the Constitution, specifically in New York. Whether they succeeded in this mission is questionable.

Separate ratification proceedings took place in each state, and the essays were not reliably reprinted outside of New York; furthermore, by the time the series was well underway, a number of important states had already ratified it, for instance Pennsylvania on December New York held out until July 26; certainly The Federalist was more important there than anywhere else, but Furtwangler argues that it "could hardly rival other major forces in the ratification contests"—specifically, these forces included the personal influence of well-known Federalists, for instance Hamilton and Jay, and Anti-Federalists, including Governor George Clinton.

In light of that, Furtwangler observes, "New York's refusal would make that state an odd outsider. Only 19 Federalists were elected to New York's ratification convention, compared to the Anti-Federalists' 46 delegates. While New York did indeed ratify the Constitution on July 26, the lack of public support for pro-Constitution Federalists has led historian John Kaminski to suggest that the impact of The Federalist on New York citizens was "negligible".

As for Virginia, which only ratified the Constitution at its convention on June 25, Hamilton writes in a letter to Madison that the collected edition of The Federalist had been sent to Virginia; Furtwangler presumes that it was to act as a "debater's handbook for the convention there," though he claims that this indirect influence would be a "dubious distinction.

Furtwangler notes that as the series grew, this plan was somewhat changed. The fourth topic expanded into detailed coverage of the individual articles of the Constitution and the institutions it mandated, while the two last topics were merely touched on in the last essay.

The papers can be broken down by author as well as by topic. At the start of the series, all three authors were contributing; the first twenty papers are broken down as eleven by Hamilton, five by Madison and four by Jay. The rest of the series, however, is dominated by three long segments by a single writer: The Federalist Papers specifically Federalist No. The idea of adding a Bill of Rights to the Constitution was originally controversial because the Constitution, as written, did not specifically enumerate or protect the rights of the people, rather it listed the powers of the government and left all that remained to the states and the people.

Alexander Hamilton , the author of Federalist No. However, Hamilton's opposition to a Bill of Rights was far from universal. Robert Yates , writing under the pseudonym Brutus , articulated this view point in the so-called Anti-Federalist No.

References in The Federalist and in the ratification debates warn of demagogues of the variety who through divisive appeals would aim at tyranny. The Federalist begins and ends with this issue. Federal judges, when interpreting the Constitution, frequently use The Federalist Papers as a contemporary account of the intentions of the framers and ratifiers. Davidowitz to the validity of ex post facto laws in the decision Calder v. Bull , apparently the first decision to mention The Federalist.

The amount of deference that should be given to The Federalist Papers in constitutional interpretation has always been somewhat controversial. Maryland , that "the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution.

No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained. From Wikipedia, the free encyclopedia.

For the website, see The Federalist website. For other uses, see Federalist disambiguation. Series of 85 essays arguing in favor of the ratification of the US Constitution. Title page of the first collection of The Federalist Retrieved 18 June Retrieved March 16, — via Library of Congress. The Encyclopedia of New York City: Morris, The Forging of the Union:

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The Federalist (later known as The Federalist Papers) is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the pseudonym "Publius" to promote the ratification of the United States first 77 of these essays were published serially in the Independent Journal, the New York Packet, and The Daily Advertiser between October

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This web-friendly presentation of the original text of the Federalist Papers (also known as The Federalist) was obtained from the e-text archives of Project Gutenberg.

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The Importance of the Union () FEDERALIST No. 1 General Introduction Alexander Hamilton; FEDERALIST No. 2 Concerning Dangers from Foreign Force and Influence John Jay; FEDERALIST No. 3 Concerning Dangers From Foreign Force and Influence (con't) John Jay; FEDERALIST No. 4 Concerning Dangers From Foreign Force and Influence (con't) John Jay; FEDERALIST No. 5 . Federalist No. 10 is an essay written by James Madison as the tenth of The Federalist Papers: a series of essays initiated by Alexander Hamilton arguing for the ratification of the United States mejormateria.cfhed on November 23, under the pseudonym "Publius", Federalist No. 10 is among the most highly regarded of all American political writings.

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The Federalist: A Commentary on the Constitution of the United States (Modern Library Classics) [Alexander Hamilton, John Jay, James Madison, Robert Scigliano] on *FREE* shipping on qualifying offers. The series of essays that comprise The Federalist constitutes one of the key texts of the American Revolution and the democratic system created in the wake of independence. Federalist 10 is part of a remarkable public discussion, spawned by the ratification debates, between Federalists and Antifederalists on the nature of republican government.