Federalist Paper #29 on Armed Revolution and the Militia

The next Federalist Paper to affirm the right of armed revolution is No. 29, which is also the only one to discuss the militia at length.  It is often quoted, not only in favor of the right of armed revolution, but also to support the proposition that the right to keep and bear arms is individual and (possibly) that the militia is every man and his gun with no military organization.  But, IMO, it is quoted out of context.  I will therefore have to quote it at length (perhaps in its entirety) with considerable analysis to explain what is going on.

To the People of the State of New York:

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 defense, 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 defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. 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.''

This addresses the provision I have discussed before, the Constitution, Article I, Section 8, Clause 16.  It also makes quite clear that the "militia" are to be "disciplined" and "called into public defense," that they "discharge the duties of the camp and the field," and that power over the militia is given to Congress to ensure "uniformity."  This is hardly consistent with the militia being every man and his gun, outside government authority.

Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. 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.

Here Hamilton is clearly using "well-regulated" not to mean knowing how to shoot, but regulated by actual laws and regulations.  He is discussing which level of government is to "regulate" the militia, not assuming that every man and his gun will adequately self-regulate.  He is also proposing the militia as an alternative to a standing army, and applauding as good the federal government's ability to command it when needed.

I omit a paragraph in which Hamilton assures his readers that even though the federal government is given no express power of posse comitatus, such a power is implied as Necessary and Proper.  Posse comitatus was the power of the sheriff to summon every able-bodied man and his gun for law enforcement.  Some opponents of the Constitution feared that in the absence of such a power, the federal government would have no alternative but to call up the militia and regularly have a military execution of its laws.  Incidentally, it is fair to ask what the difference is.  The militia consisted of ever able-bodied man and his gun.  Posse comitatus consisted of every able-bodied man and his gun.  The militia had regular training and drill, which (so far as I know) posse comitatus did not, but the men called into action for posse comitatus would hardly forget their militia training.  The only difference, so far as I can see, is that posse comitatus was under the command of the sheriff and the militia was under command of militia officers.  How important was the difference?  Apparently many people in 1787 considered it important.

There was one other concern.  It was that Congress might organize a "select militia" consisting of less than every man and his gun, and that such a militia might threaten liberty.  Hamilton next addresses that issue:

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.

 The sections I have italicized are often quoted to support the proposition that the militia consists of every man and his gun outside of any military training or structure.  Clearly Hamilton is using the term "all the militia" to mean all able-bodied men of military age and saying that it is not realistic to expect so large a population to have sufficient training to "entitle them to the character of a well-regulated militia."  He simply wants them to be adequately armed and equipped and assemble them once or twice a year to make sure it is done.  Clearly he thinks it is too much to expect every able-bodied man to belong to any sort of serious military body or have any sort of serious military training.  Rather, he thinks that they should be assembled once or twice a year to make sure they are adequately armed and equipped.  So he does think that people without the military training to be a serious "militia" should be adequately armed, but he appears to see this as a duty under the authority of government rather than an individual right, i.e., he wants to assemble them once or twice a year to make sure it is done.  Less clear is why he considers this important.  Hamilton then goes on to give a quote used to support the argument that the purpose of the militia is to resist tyrannical government:

"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.''

Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee.

Hamilton, in other words, responds to warnings that Congress might form a select militia, not by saying that a select militia is a contradiction in terms since the militia by definition consists of every  man and his gun, nor by saying that Congress would never be so wicked.  Instead, he thinks it is a good idea.  Choosing a small group, he say, will make it possible to give them sufficient training to make a real military difference.  Furthermore, he say, such a militia will be able to resist and threat from a standing army because it is "little, if at all, inferior to them in discipline and use of arms."  Note, then, that although Hamilton believes the "militia" will resist encroachments by a standing army, he does not mean every man and his gun.  Rather, he means this select militia with sufficient military training.  Hamilton, it should be  noted, fought in George Washington's Continental Army and had a low opinion of fighting abilities of the state militias.  So, if Hamilton did not really think every man and his gun amounted to much as a fighting force, either on behalf of the government if called into service or against it if it became tyrannical, why bother to ensure that every man was nonetheless adequately armed and equipped?  He does not say.  And how do we ensure that the select militia does not become a threat to liberty?  Here Hamilton does answer:

Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.

 This a reminder, in other words, that the militia are not regular troops.  Though Hamilton favors a select militia, they will be a reserve, living as civilians most of the time and therefore no different than their fellow-citizens.  Though the federal government will regulate the militia (meaning, once again, set the rules by which it operates) and be able to call it into federal service, the states will appoint the officers and can be trusted to choose men who are politically reliable.  This letter cannot possibly be taken to mean that the militia are every man and his gun outside of formal military organization, or that their primary purpose is revolution (even if they can do so, if need be).

Most of the rest of the letter is best characterized as a rant, so I omit it.  People were worried that militia members could be called upon to serve outside their state and feared they might be used to oppress citizens of another state.  Hamilton dismissed the idea as absurd, although he does add, "In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition."  So, in the end, this letter, too, condemns "insurrection" and "sedition" and calls for it to be suppressed.

Next I will address, Number 46, the letter most often cited in support of revolution.