From the Tenth Amendment Center, September 10, 2014 •
What do we do when the federal government simply ignores the Second Amendment and acts in ways that infringe on our right to keep and bear arms? Well, James Madison laid out a blueprint in Federalist 46 before the Constitution was even ratified.
James Madison wrote in Federalist #46;
“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 the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
Here Madison says that the people of a whole possess the advantage of having arms and through their subordinate governments would be the greatest army on earth. It would be insurmountable odds for any standing army of any nation to conquer just by the vast numbers of the armed citizenry.
He further writes;
“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. 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.”
Madison illustrates that not only can an armed citizenry repel any outside foreign forces by large standing armies, but also, as the very last resort, can serve as a check on a tyrannical central government. It also illustrates that the natural right of self-defense and arms is indeed an individual right.
This, in its very essence, is why the founders restricted the authority of the central government when it come to arms though the Second Amendment.
But Madison goes on to provide a strategy that makes it possible to resist unconstitutional federal act without relying on arms – a moderate middle road between submission and revolution. He gave us a blueprint for stopping federal overreach before the Constitution was even ratified.
That tool is the non-cooperation, and he assured Americans that the power of the states could keep the general government in check.
The states simply do NOT have to cooperate with the enforcement of unconstitutional federal acts concerning the right to keep and bear arms. This strategy has even been affirmed by the courts under what is known as the anti-commandeering doctrine.
JAMES MADISON’S ADVICE
From Federalist #46:
“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”
Let’s break down Madison’s prescription.
“Should an unwarrantable measure…” What does Madison mean by “unwarrantable?” The word literally means “unjustifiable.” Madison was clearly talking about federal acts with no constitutional justification. In other words, unconstitutional.
But notice something interesting, Madison implies that state governments can even resist a “warrantable” or justifiable federal act.
So what does Madison suggest states do when the feds overstep their authority? Oppose it!
“…the means of opposition to it are powerful and at hand.” Madison anticipated the possibility of federal usurpation and clearly believed the states would serve as a check on federal power. He believed the states should and would resist unconstitutional acts.
So, what are the “means of opposition?”
1. Disquietude of the people – This would include protests and petitions generated at the grassroots level. Madison expected the people would throw a fit when the feds usurped power – even using the word “repugnance” to describe their displeasure. That’s a pretty strong word. And inevitably, disquietude leads to action – first at the local level, then bubbling up to the state level. That leads to the next step.
2. Refusal to co-operate with the officers of the Union – Noncompliance. Madison apparently knew what we know today. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, they simply can’t enforce their so-called laws.
Noncompliance works and it should be happening at both the state and local level.
3, The frowns of the executive magistracy of the State – Here Madison envisions Governors formally protesting federal actions. This not only raises public awareness; executive leadership will also lead to the next step – legislative action. Prior to passage of the Kentucky Resolutions of 1798, Gov. Garrard delivered a powerful message condemning the Alien and Sedition Acts and calling on legislative action.
4. Legislative devices, which would often be added on such occasions -What exactly does Madison mean by “legislative devices?” He doesn’t make that clear. But we know they include resolutions, because he and Thomas Jefferson penned the Kentucky and Virginia Resolutions in response to the draconian and unconstitutional Alien and Sedition Acts of 1798. Together, these Principles of ’98 formalize the doctrine of nullification.
But do legislative devices stop at non-binding resolutions? Clearly not, because Madison said these measures would create “difficulties” and “impediments.” 18th-century dictionaries list “obstruction” as a synonym for impediment. In other words, these legislative devices could serve to block the operation of unconstitutional power. This infers actions including formal, binding prohibitions of state or local cooperation, and outright interposition: “to intervene or place an agency between two positions.”
So what do we have today? Do we not have a federal government that has long since usurped its powers enumerated to it by the US Constitution and disobeyed its further restrictions outlined in the Bill of Rights?
The clear course we have to take to once again have a resemblance of federalism and a constitutional republic is undoubtedly the non-cooperation/anti-commandeering doctrine of any and all federal gun restrictions, it is the rightful remedy.
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