Federalist Paper No.46

While this Federalist paper reiterates arguments concerning State and federal powers under the new Constitution, it is interesting in that it also raises a couple of arguments concerning gun ownership in America and what can only be called conspiracy theories, both topical at the present time.

The fear, as has been expressed in previous papers, is that a newly empowered Federal government under the new constitution could be a threat to State autonomy. Madison has previously made arguments against this. In this paper he focusses upon the importance of the people, a factor that critics of the new Constitution have forgotten, he claims. Madison reminds them that the American people are the ultimate authority.

He begins his arguments by reiterating one of his main points: that State governments have a more direct bearing on the lives of their constituents and so the people have a more natural attachment to their State representatives. This follows from the fact that the sphere of influence of the Federal government does not touch directly upon the lives of ordinary people. From this he draws an argument which likens the State governments’ influence with that of representatives in towns and counties to that of the Federal government’s influence in State matters. It naturally follows that the smaller the population being represented, the more tailored will be that representation, and therefore, the greater the loyalty of the people to that class of government. And given that the Federal government is populated by people from particular regions, Madison argues that:

A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of particular States.

Therefore, it would be difficult for a Federal government to gain support against State interests, whereas States would have greater support against the encroachments of a Federal government over State interests. Any attempts by the Federal authority to do this would be signals of general alarm. On top of this, it would result in a situation in which one set of representatives would be contending against thirteen sets of representatives.

Madison next addresses what a modern audience would call a conspiracy theory: that the Federal government harbours such strong ambitions to dominate that it would create a secret army to prosecute its agenda. Madison easily shows why this is not realistic. Given that such an ambition would take some time to achieve, the following circumstances would have to apply:

1. A succession of governments willing to betray the ideals of the written Constitution would have to be elected;
2. The plan would need to be pursued single-mindedly throughout the period;
3. State governments and the people of America would allow this to happen without resistance, while continuing to supply the men and resources by which they would then be repressed.

Madison must have anticipated the tenacious belief of modern conspiracy theorists in the face of evidence, because he continues by accepting, for the sake of argument, that this scenario was possible. He then argues that the single force created by the Federal government would not be one-twenty-fifth the strength of the combined State forces, comprising of State and militia forces. This argument is predicated upon Americans being armed, which touches upon the gun control debate now. Madison upholds the fact that the government allows its people to bear arms as a strength to America’s democracy and a proud achievement for the free and gallant citizens of America. This is in contrast to European citizens who Madison describes as, the debased subjects of arbitrary power. It’s an interesting argument which suggests that, apart from the need to bear arms in the frontier against Indian attack (I assume – Madison doesn’t touch upon this at all here), the reason for allowing Americans to bear arms is that in the last instance, they should be the bulwark against the ambitions of an untrustworthy government:

… 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.

By this argument Madison secures the issue against those who fear the encroachment of federal power in State matters under the new Constitution.

Which brings me to briefly reflect upon the present gun issues in America. Certainly, Second Amendment rights granted by the founding fathers are still argued for by gun supporters, but modern justifications for keeping weapons seem to have strayed from the original justification, as far as I can see it as a foreigner. This goes to the heart of the collective rights theory, which argues that the Second Amendment was meant to ensure the ability of States to arm and protect themselves and did not give a right to individual citizens to bear arms:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This interpretation of the Second Amendment, of course, is contrary to the interpretation and implementation of the Amendment throughout American history. But it seems to me that, given the context of the writing of the Constitution and the concerns expressed about the reach of federal control, that an interpretation based on collective rights is not too much of a stretch, despite interpretations of the Second Amendment since the Bill of Rights was passed. That’s how I read the Second Amendment and how Madison seems to frame the issue in this Federalist paper. And even if one reads “the right of the people” to be an additional inclusion affecting the rights of the individual within the amendment, rather than a refining detail to describe the needs of the collective’s right, one can hardly argue that our world is the same as Madison’s, which necessitated this amendment. However, in our modern period, this has not been the legal direction of the interpretation of the amendment since District of Columbia v. Heller in 2008, which proclaimed an individual right to possess firearms:

The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

SUPREME COURT OF THE UNITED STATES DISTRICT OF COLUMBIA et al. v. HELLER - 26 June 2008

5 March 2019

Revised and updated 23 May 2022