[Cite as Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). NOTE: This decision concerns delinquent militia men, whether states possessed general authority over their own militia, if this was a new power or one that already existed in the states, and whether the constitution carved out of that a specific power in certain enumerated cases. (P. 54) In a seperate opinion, justice Story argued states retained the power to act in absense of federal action and referred to the Second Amendment, "The fifth [second] amendment to the constitution, declaring that '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,' may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested." (P. 52-53 this page) Thirteen years later Justice Story would write concerning the Second Amendment, "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." (Comm. on the Const. 646 (1833)) This passage would be cited approvingly by the Supreme Court in U.S. v. Miller, 307 U.S. 174, 182 n.3 (1939). Also interesting, Justice Johnson's seperate opinion seems to indicate it was possible the federal Bill of Rights could be enforceable against state infringement: "This Court can relieve him only upon the supposition that the State law under which he has been fined is inconsistent with some right secured to him, or secured to the United States, under the constitution. Now, the United States complain of nothing ..." (P. 33)]
[Houston v. Moore continued
Return to pages 1-31 (Majority opinion).
Return to pages 32-46 (Johnson opinion).
Return to pages 47-51 (Story opinion).
Currently at pages 52-53 (Story opinion cont.).
Proceed to pages 54-76 (Story opinion cont).]
[paragraph continued from previous page] of all interfering provisions by Congress on the subject, the States should have authority to organize, arm, and discipline their own militia. The general authority retained by them over the militia would seem to draw after it these, as necessary incidents. If Congress should not have exercised its own power, how, upon any other construction, than that of a concurrent power, could the States sufficiently provide for their own safety against domestic insurrections, or the sudden invasion of a foreign enemy? They are expressly prohibited from keeping troops or ships of war in time of peace; and this, undoubtedly, upon the supposition, that in such cases the militia would be their natural and sufficient defence. Yet what would the militia be without organization, arms, and discipline? It is certainly not compulsory upon Congress to exercise its own authority upon this subject. The time, the mode, and the extent, must rest upon its means and sound discretion. If, therefore, the present case turned upon the question, whether a State might organize, arm, and discipline its own militia in the absence of, or subordinate to, the regulations of Congress, I am certainly not prepared to deny the legitimacy of such an exercise of authority. It does not seem repugnant in its nature to the grant of a like paramount authority to Congress; and if not, then it is retained by the States. The fifth amendment [ed. second amendment] to the constitution, declaring that "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," may not, perhaps, be thought to have any important bearing (p.53)on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.
But Congress have, also, the power to provide "for governing such part of the militia as may be employed in the service of the United States." It has not been attempted in argument, to establish that this power is not exclusively in Congress; or that the States have a concurrent power of governing their own militia when in the service of the Union. On the contrary, the reverse has been conceded both here and before the other tribunals in which this cause has been so ably and learnedly discussed. And there certainly are the strongest reasons for this construction. When the militia is called into the actual service of the United States, by which I understand actual employment in service, the constitution declares, that the President shall be the commander in chief. The militia of several States may, at the same time, be called out for the public defence; and to suppose each State could have an authority to govern its own militia in such cases, even subordinate to the regulations of Congress, seems utterly inconsistent with that unity of command and action, on which the success of all military operations must essentially depend. There never could be a stronger case put from the argument of public inconvenience, against the adoption of such a doctrine. It is scarcely possible, that any interference, however small, of a State under such circumstances in the government of the militia, would not materially embarrass, and directly, or indirectly, impugn the authority of the Union. In most cases there would be an utter repugnancy. [paragraph continues next page]
[Return to pages 1-31 (Majority opinion).
Return to pages 32-46 (Johnson opinion).
Return to pages 47-51 (Story opinion).
Currently at pages 52-53 (Story opinion cont.).
Proceed to pages 54-76 (Story opinion cont).]