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[Copyright © 2001 University of Detroit Mercy Law Review. Originally published as 79 U. Det. Mercy L. Rev.39 (2001). Permission for WWW use at this site generously granted by University of Detroit Mercy Law Review and the author. For educational use only. The printed edition remains canonical.


Exposing the Second Amendment:
Federal Preemption of State Militia Legislation


"Upon the subject of the militia. Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress . . . ."

United States Supreme Court, Houston v. Moore 18 U.S. (5 Wheaton) 1, 24 (1820).

I. Introduction

In 1814 a Pennsylvania militiaman failed to muster when called to federal service. He was then tried, convicted, and fined by a military tribunal convened under authority of the state of Pennsylvania. This simple exercise of military authority in wartime raised federal issues of sufficient complexity that after six years of legal wrangling, the matter arrived before the United States Supreme Court. The case upholding the validity of the conviction was Houston v. Moore,[1] and the majority opinion in the case has since been cited by (p.40) the high court more than thirty times.[2] The federal issues confronted were whether a state could adjudicate or legislate concurrently with the federal government. The Court's opinion in Houston held that Congress, exercising its legislative powers under the Militia Clauses of the federal constitution, had preempted the power of the state legislatures to regulate the militia.[3]

Second Amendment scholarship appears to have overlooked this matter of Congressional preemption of state militia legislation, yet federal preemption has a profound effect on the question of whether the Second Amendment protects state militia authority or an individual right.[4] Since the Third Circuit ruled in 1942 that the Second Amendment, "was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power,"[5] many people have come to understand the Second Amendment as representing only an immunity held by state governments against interference from Congress. Subsequent courts have concurred that the amendment, "applies only to the right of the State to maintain a militia and not to the individual's right to bear arms."[6] But despite the body of lower court jurisprudence, a persistent and contentious debate over the exact nature of the Second Amendment's guarantee has been conducted in the legal press.[7] A preponderance of scholars now appear to embrace what the (p.41) Sixth Circuit once labeled, "the erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the States."[8]

It would seem almost obvious that the legal community, in debating the validity of these lower federal court decisions, ought first to have ascertained what authority the states retain over the militia under existing U.S. Supreme Court jurisprudence, and the means, express or implied, by which state power has been preserved. To engage in a credible disquisition on the nature of the Second Amendment a scholar should first be familiar with that body of jurisprudence which relates to actual control of the militia. Despite the critical importance of such an inquiry, the relevant case law seems barely to have been touched by the scholarly literature.[9] This article seeks to remedy that shortcoming. The following analysis tests the validity of the disputed lower federal court Second Amendment jurisprudence by identifying the actual status of the militia with regard to the power of Congress to preempt state enactments. If the lower federal court Second Amendment decisions are founded in Supreme Court militia jurisprudence, then we can reasonably dismiss the "individual right" interpretation of the amendment. Conversely, if the Constitution as expounded by the high court leaves Congress with the power to preempt the states' ability to maintain well-regulated militia, then it would follow that the Second Amendment, (p.42) if it is to have any meaning at all, must refer to a right to keep and bear arms that is held directly by citizens and is not conditional on state sponsorship.

This analysis is preceded by the observation that the Second Amendment has never been interpreted unambiguously by the U.S. Supreme Court. [10] The amendment has been definitively interpreted by lower federal courts as protecting only state authority from Congressional interference, or as protecting a "collective right" exercisable only through the agency of state government, which is effectively the same as declaring the amendment a protection of state legislation.[11]

(p.43) The analysis which follows shows that federal power over the militia is not limited by the Second Amendment. Federal regulation, even if deficient or onerous to the states, can preempt state militia regulation. More unexpectedly, the following analysis also reveals that the Supreme Court has long considered militia jurisprudence to be an archetype for federal preemption. Landmark decisions on commerce regulation and other subjects have been patterned after explanations of federalism propounded in Houston v. Moore, a militia case. Two centuries of Supreme Court pronouncements on the militia contradict the modern lower-court gun-case assertions about the Second Amendment. The "states' right" alleged to reside in the amendment vanishes when exposed to the light of actual militia jurisprudence. Those who argue that Second Amendment protection belongs to the people, as expressly stated in the amendment itself, are being answered with a shadow-doctrine having no existence outside gun case dicta.

II. Militia Preemption and the Marshall Court:
State Militia Law Held Invalid

Professor Laurence H. Tribe identifies in Supreme Court jurisprudence three modes of federal preemption exercisable by Congress against the states:

(1) "express preemption," where Congress has in so many words declared its intention to preclude state legislation of a described sort in a given area; (2) "implied preemption," where Congress, through the structure or objectives of its enactments has by implication precluded a certain kind of state regulation in an area; and (3) "conflict preemption," where Congress did not necessarily focus on preemption of state regulation at all, but where the particular state law conflicts directly with federal law, or otherwise (p.44) stands as an obstacle to the accomplishment of federal statutory objectives.

In addition, Professor Tribe recognizes:

Because congressional purposes can be either substantive or jurisdictional, a state action may be struck down as an invalid interference with the federal design either because it is in substantive conflict with the operation of a federal regulation or program or because, whatever its substantive impact, it intrudes jurisdictionally upon a field that Congress has validly reserved for exclusively federal regulation. It is this latter phenomenon that some describe as field (or "occupying the field") preemption - which, it is worth stressing, may fall into any of the three categories set forth above.[12]

In Houston v. Moore, a delinquent militiaman had been convicted by a military tribunal consisting of state militia officers acting under authority of a Pennsylvania statute which provided for the enforcement of certain provisions of the federal Militia Act of February 28, 1795,[14] or any subsequent militia laws Congress might enact.[15] Houston's counsel argued against the validity of his client's conviction by the state of Pennsylvania for an offense against the federal government.[16] The following federal issues were thus raised: (1) Does a militiaman enter federal service immediately upon receiving an order to muster? (2) Are the states competent to legislate concurrently with Congress in an area of delegated power once that power has been exercised by Congress? (3) Is a military tribunal founded under state authority competent to enforce federal law?

On the first question, the Supreme Court ruled that Houston, though having been called to federal service, had not yet entered that service, because the relevant federal statute appeared to designate actual arrival at the point of rendezvous as the beginning of federal service.[17] But settling the matter of Houston's not having entered federal service did not dispose of the case in favor of the state and its agent, because the argument had been raised that the state law authorizing the court martial had been preempted by Congressional legislation.(p.45)

On that second question, the preemption of the state law, the Justices appear to have very thoroughly debated the matter and agreed only inasmuch that state militia law would be preempted by federal law in all cases of actual conflict between the state and federal militia acts. Justice Bushrod Washington, who wrote the Court's opinion, adopted the broadest view of preemption, one that would later be known as "field preemption," by which any exercise by Congress of its militia powers entirely displaced state legislation, whether conflicting or not.

In setting forth the facts of the case, Justice Washington noted the extent of the federal legislation, and remarked on its deficiencies:

The [federal militia] laws which I have referred to amount to a full execution of the powers conferred upon Congress by the constitution. They provide for calling forth the militia .... They also provide for organizing, arming, and disciplining the militia .... This system may not be formed with as much wisdom as, in the opinion of some, it might have been, or as time and experience may hereafter suggest. But to my apprehension, the whole ground of Congressional legislation is covered by the laws referred to.[18]

Justice Washington then went on to rule that state militia legislation was federally preempted, following this course of reasoning:

It may be admitted at once, that the militia belong to the States, respectively, in which they are enrolled, and that they are subject; both in their civil and military capacities, to the jurisdiction and laws of such State, except so far as those laws are controlled by acts of Congress constitutionally made.... Congress has provided for all these subjects, in the way which that body must have supposed the best calculated to promote the general welfare, and to provide for the national defence. After this, can the State governments enter upon the same ground-provide for the same objects as they may think proper, and punish in their own way violations of the laws they have so enacted? ... From this doctrine, I must, for one, be permitted to dissent. The two laws may not be in such absolute opposition to each other, as to render the one incapable of execution, without violating the injunctions of the other; and yet, the will of the one legislature may be in direct collision with that of the other. This will is to be discovered as well by what the legislature has not declared, as by what they have expressed. Congress, for example, has declared, that the punishment for disobedience of the act of Congress, shall be a certain fine; if that provided by the State legislature for the same offence be a similar (p.46) fine, with the addition of imprisonment or death, the latter law would not prevent the former from being carried into execution, and may be said, therefore, not to be repugnant to it. But surely the will of Congress is, nevertheless, thwarted and opposed ....This course of reasoning is intended as an answer to what I consider a novel and unconstitutional doctrine, that in cases where the State governments have a concurrent power of legislation with the national government, they may legislate upon any subject on which Congress has acted, provided the two laws are not in terms, or in their operation, contradictory and repugnant to each other.

Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised.[19]

Justice Washington thus concluded his exposition of federal preemption by repeating his observation that the federal militia laws of the day were deficient for the purpose of maintaining a well regulated militia, but held that passage of those deficient laws nonetheless preempted state legislation. The Court's opinion asserted that the power of the states to legislate over the militia had vaporized on May 8th, 1792, with the passage of the first federal act organizing the nation's militia.[20]

On the final question (whether a state military tribunal could enforce a federal military law), the Court, considering the implications of the Militia Act of February 28, 1795 (which did not specifically preclude the states from enforcing federal military law) and the Judiciary Act (which the Court said precluded the states from enforcing federal criminal and civil law, but did not cover military law), ruled in the affirmative.[21] Houston's conviction was valid, not because Pennsylvania had the power to legislate over the militia, but (p.47) because the Court found that Congress had implicitly granted Pennsylvania the authority to enforce the federal law.[22]

But the decision and the various holdings were far from unanimous. "Two of the [seven] judges are of the opinion that the law in question is unconstitutional, and that the judgement below ought to be reversed," admitted Justice Washington, while, "The other judges are of the opinion that the judgment ought to be affirmed; but they do not concur, in all respects, in the reasons which influence my opinion."[23]

The matter of federal preemption of state legislation seems to have been warmly debated by the Court; both the concurring opinion by Justice Johnson and the dissent by Justice Story included discussions of the question. Justice Johnson was somewhat more generous to state authority than Justice Washington had been:

It is obvious, that in those cases in which the United States may exercise the right of exclusive legislation, it will rest with Congress to determine whether the general government shall exercise the right of punishing exclusively, or leave the States at liberty to exercise their own discretion. But where the United States cannot assume, or where they have not assumed, this exclusive exercise of power, I cannot imagine a reason why the States may not also, if they feel themselves injured by the same offence, assert their right of inflicting punishment also....(p.48)

But it is contended, that if the States do possess this power over the militia, they may abuse it. This is a branch of the exploded doctrine, that within the scope in which Congress may legislate, the States shall not legislate. That they can not, when legislating within that ceded, region of power, run counter to the laws of Congress, is denied by no one; but, as I before observed, to reason against the exercise of this power from the possible abuse of it, is not for a court of justice. When instances of this opposition occur, it will be time enough to meet them.[24]

Using Professor Tribe's criteria, then, Justice Johnson would have placed authority for punishing militia-men in the area of "conflict preemption," by which the states can exercise concurrent power provided the state law is not in direct conflict with the Congressional act.

Justice Story wrote a dissenting opinion, in which Chief Justice John Marshall joined.[25] Their dissent was founded in a view of federalism that was ultimately more nationalist than Justice Washington's. Story and Marshall objected to the enforcement of federal law by a state tribunal, their reading of the Militia Acts and Judiciary Act being very different from those of the majority:

If, then, we strip the case before the Court of all unnecessary appendages, it presents this point, that Congress had declared that its own Courts Martial shall have exclusive jurisdiction of the offence; and the State of Pennsylvania claims a right to interfere with that exclusive jurisdiction, and to decide in its own Courts upon the merits of every case of alleged delinquency. Can a more direct collision with the authority of the United States be imagined?

But while the dissent was nationalist on the issue of concurrent adjudication, Story and Marshall, like Justice Johnson, took a somewhat more generous view of concurrent state legislative authority over the militia:

It is almost too plain for argument, that the power here given to Congress over the militia [by Article I, Section 8, Clauses 15 and 16], is of a limited nature, and confined to the objects specified in these clauses; and that in all other respects, and for all other(p.49) purposes, the militia are subject to the control and government o the State authorities.... Nor does it seem necessary to contend, that the power "to provide for organizing, arming, and disciplining the militia," is exclusively vested in Congress. It is merely an affirmative power, and if not in its own nature incompatible with the existence of a like power in the States, it may well leave a concurrent power in the latter. But when once Congress has carried this power into effect, its laws for the organization, arming, and discipline of the militia, are the supreme law of the land; and all interfering State regulations must necessarily be suspended in their operation. It would certainly seem reasonable, that in the absence of all interfering provisions by Congress on the subject, the States should have authority to organize, arm, and discipline their own militia.... 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 [sic] amendment to the constitution, declaring that [and here Justice Story actually quotes the Second Amendment in its entirety] "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.[27]

The last passage provides striking judicial evidence of the eminent jurists' view of the Second Amendment in this early period. Justice Story, and evidently Chief Justice Marshall himself, considered the Second Amendment as having no important bearing on the preservation of state militia powers from the preemptive effects of Congressional legislation. Rather, the amendment was mere "plain reading" evidence, illustrative of the notion that the states have an interest in militia.[28] Marshall hadn't mentioned the amendment at all when he considered nearly identical controversies in 1794 and 1815.[29]

The other important observation to draw from the dissent is that Justices Story and Marshall would have made state militia regulation(p.50) subject to "conflict preemption." They believed that in Houston such a conflict did exist: "Upon the whole, with whatever reluctance, I feel myself bound to declare, that the clauses of the militia act of Pennsylvania now in question, are repugnant to the constitutional . laws of Congress on the same subject, and are utterly void . . . ."[30]

But years later Justice Story embraced Justice Washington's broad "field preemption" holding. In the landmark fugitive slave case of 1842, Prigg v. Pennsylvania[31], writing for the majority Story cited the opinion from which he had dissented (on other grounds) in Houston for the proposition that:

[I]f Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere; and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject-matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognised by this Court, in the case of Houston v. Moore, 5 Wheat. Rep. 1, 21, 22; where it was expressly held, that where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for state legislation to add to the provisions of Congress upon that subject; for that the will of Congress upon the whole subject is as clearly established by what it had not declared, as by what it has expressed.[32]

In Houston v. Moore, the Supreme Court did not dispose of all possible questions relating to Congressional preemption of state militia legislation. But the justices did establish parameters for such preemption: the states' ability to regulate militia was either entirely precluded by any Congressional action, or was precluded only to the extent of the Congressional action. After a thorough and divisive consideration of the issue, all three justices who wrote opinions clearly agreed that in event of conflict, state militia regulation must yield to federal law. The Second Amendment, overlooked by most of the Court, was thought to have no important bearing on the matter even by the one justice who bothered to mention it.(p.51)

III. Federal 'Interference' with State Militia Upheld

A. The Marshall Court Affirms Federal Powers, and Denies State Powers

Although Houston v. Moore appears to be the only case in which the Supreme Court has ruled directly on the constitutionality of specific state militia legislation in terms of federal preemption, the issue has managed to insinuate itself at the high court from time to time, illustrating the effects of Congressional exercise of its powers over the militia. The next militia case to reach the high court, Martin v. Mott,[33] followed Houston by only seven years.

Martin v. Mott was a replevin case arising originally from the delinquency and subsequent conviction of a New York militiaman called to federal service by the president as authorized by Congress under the 1795 act. Unlike Houston, however, Jacob E. Mott had been convicted by a court martial convened under federal authority.[34] Mott's counsel therefore argued against the legitimacy of the congressional act which authorized the president to call forth the militia, and against the propriety of the particular federal order which his client had failed to obey. Where Houston v. Moore had tested the legitimacy of state militia legislation, Martin v. Mott was to test the legitimacy of federal militia legislation and executive militia powers.

The Court, with Justice Story writing the opinion, held in Martin v. Mott that the provisions of the federal Militia Act of February 28, 1795 were constitutional where they conferred upon the President the power to call forth the militia to repel invasion. This power had been delegated to Congress by Article I, Section 8, Clause 15 of the Constitution, but the Court held that the legislature could constitutionally transfer the power to the executive.

One of the important related issues resolved in Martin v. Mott was whether the president had sole authority to determine in a given situation whether the militia were genuinely necessary for the constitutionally-designated purposes of executing the laws, repelling invaders, or suppressing insurrection. During the War of 1812, the governors of several New England states had protested that they, not the president, were to determine whether an emergency really existed, and whether the militia were to be made available to the federal government. Otherwise, as the Supreme Judicial Court of Massachusetts advised the governor, "subjecting them to the command of the president, would place all the militia in effect at the will of Congress and produce a military consolidation of the States(p.52) without any constitutional remedy."[35] Evidently it did not occur to jurists of that period that the Second Amendment might be invoked as a remedy for federal interference with the militia. The Court's decision in Martin v. Mott resolved the question in favor of federal authority.[36] The states cannot refuse to deliver the militia to federal service when called forth by the president.

Thus in two cases, decided seven years apart and straddling the landmark preemption case Gibbons v. Ogden,[37] the Supreme Court recognized the power of Congress to preempt state militia legislation, and denied the states the power to question or interfere with a federal requisition of militia.

B. The Taney Court Finds Unforeseen Federal Powers

The delegation of militia power by Congress to the President was to have stunning implications in the 1849 case Luther v. Borden,[38] which arose from events that occurred when the Governor of Rhode Island declared martial law in 1842. Rhode Island, unlike the other states, did not enact a new constitution following the Revolution, but continued to operate under its old constitution dating from the time of the Crown charter. Because this constitution sharply restricted suffrage, a number of citizens "rebelled" in 1842, writing their own constitution and creating their own legislature, and electing one Thomas W. Dorr to the new "governorship."

Most of the legal issues in the case that reached the Supreme Court involved the alleged illegal entry of a militia officer (under state authority) into the home of one of the rebels. Counsel for the erstwhile rebel argued 'against the legitimacy of the declaration of martial law by claiming that the insurrectionary government had the support of the majority of citizens, and conversely that the established government did not.[39]

Chief Justice Taney, writing for the majority, conceded that under Article IV, Section 4, of the Constitution, the federal government had an obligation to guarantee the citizens of every state a republican government, and that attendant to that obligation was(p.53) the power to decide which of two rival claimants was the legitimate government of a state. But Chief Justice Taney refused to accept that arbitrating such a dispute was the jurisdiction of the federal courts, instead ruling it was a political question to be resolved by Congress.

Going further, Chief Justice Taney held that by having placed in the President, by the Militia Act of 1795, the power to call forth the militia to suppress insurrections, Congress had also vested in the Executive the remarkable authority to determine which of two rivals was the legitimate government of a state. The Court in Martin v. Mott had recognized that Congress, in passing the 1795 act, had given the President the power to order the state militias into federal service to repel invasions. But another clause of the same act delegated to the President the authority to call forth the militia of the several states to suppress an insurrection against the government of a single state, when requested by the executive of a state in which the insurrection was taking place. According to Chief Justice Taney, in order to determine the legitimacy of such a request for militia the President had necessarily to make a determination of the legitimacy of the state executive making the request.[40]

Thus Congress, exercising its powers under the Militia Clauses, had delegated to the President the authority to declare a domestic emergency and then pass sole judgment on the legitimacy of a state government.

The Court's construction in Luther v. Borden strongly asserted national supremacy via the Militia Clauses. However, it must be admitted that there may have remained one small exception to federal control of the militia. Seemingly, the President could not, without a request from the governor or legislature, compel the militia service of the citizens of Rhode Island in the suppression of an insurrection in their home state, but he could compel the militia service of the citizens of Connecticut or Massachusetts, or even Florida, over the objections of the governors of those states, to suppress the same Rhode Island insurrection, if invited to do so by one of the rival governors of Rhode Island. This possible limitation might arise from the language of Article IV, Section 4, which provides that the national government shall protect the state governments from "domestic violence" upon application of the state legislature or executive.[41] If so, then the limitation is not merely an idiosyncrasy of the Militia Act of 1795. It might therefore be said that in Article IV,(p.54) Section 4, is some protection for state militia powers. On the other hand, under the current National Guard arrangements this effect appears to have been circumvented. The National Guard, having simultaneous status as the Army Reserve, can be brought into federal service at any time for any legal purpose.[42]

IV. The Selective Draft Law Cases: A Fatal Blow to the 'States' Right' Theory

In 1903, after one hundred and eleven years of neglect, the Militia Act of 1792 was repealed, and the process of reorganizing the militia into the National Guard began. The National Defense Act of 1916 created new obligations on the organized militia, affiliating them closely with the regular army.[43] With the approach of American entry into the First World War, questions arose concerning the susceptibility of the National Guard, as well as the citizenry at large, to the draft. The matter came to the Supreme Court's attention in The Selective Draft Law Cases,[44] in which the constitutionality of conscription was upheld, and the limited militia powers reserved to the states under Article I, Section 8, Clause 16 were found to be subordinate to the delegated power of Congress to raise armies.

Surprisingly, the Court had little precedent on which to rely in ruling on the constitutionality of conscription. The leading case on the subject appeared to be the hoary Kneedler v. Lane,[45] an 1863 Pennsylvania decision upholding the constitutionality of the draft. On first consideration, the Pennsylvania high court ruled against the constitutionality of the draft, and on November 9th, 1863 issued an injunction against it.[46] A passage in one of two concurring opinions presented a "states' right" interpretation of the Second Amendment. Agreeing with the court majority that the Civil War draft was unconstitutional, Justice Thompson claimed that conscription by the national government would threaten the sovereignty of the states, and make every citizen vulnerable to being subjected to military law. He contended that it violated the Second Amendment because it(p.55) allowed Congress to eliminate the militia, "by absorbing the militia into the army . . . calling them out individually without requisition on the states . . . ."[47] Justice Thompson was not explicit as to whether he believed the drafted militiamen, or the state governments, or both, had standing under the Second Amendment. Other than that ambiguity, it is clear he invoked the amendment as a protection of state militia. In any event, the Supreme Court of Pennsylvania quickly reversed itself, and on January 16th, 1864, lifted its injunction and declared the draft constitutional.[48] Fifty-four years later the U.S. Supreme Court definitively upheld the constitutionality of conscription in The Selective Draft Law Cases. However, at the time of the original Kneedler injunction there was no governing jurisprudence on conscription, so on the basis of two paragraphs in a concurrence to an overruled decision one could fairly argue that the "states' right" model was legally viable for nine weeks in the winter of 1863-64.

Justice Thompson's short-lived contention about the Second Amendment proves one thing: the "states' right" interpretation has not merely been overlooked in militia jurisprudence, it has been rejected. Jurists confronting questions of federalism and the militia have undoubtedly been conscious of the amendment, but have rarely seen fit to mention it even in passing, and have never detailed how the states may wield it against federal interference. In deciding the Selective Draft Law Cases, the Supreme Court completely ignored the amendment and delivered a fatal blow to claims of state immunity from threats to the existence of the militia.

In a unanimous opinion, the Court found that the state militia could be abolished by the expedient of absorbing militiamen into the federal army:

There was left therefore under the sway of the states undelegated the control of the militia to the extent that such control was not taken away by the exercise by Congress of its power to raise armies. This did not diminish the military power or curb the full potentiality of the right to exert it but left an area of authority requiring to be provided for (the militia area) unless and until by the exertion of the military power of Congress that area had been circumscribed or totally disappeared.[49](p.56)

In affirming the power of Congress to conscript from the organized militia as well as from the unenrolled citizenry, the Court held to a version of federal preemption more limiting to the states than that espoused by Justice Washington in Houston v. Moore. Congress can exercise its delegated army power to even the extent of overriding the reserved state militia powers.[50] The Court described both the delegated and reserved militia powers as existing primarily for the purpose of reducing the necessity for Congress to exercise its power to raise armies. Chief Justice White's opinion made no mention of the hazards of a standing army to the security of a republic, which in the framing period had been of great concern. Instead, the Court seems to have viewed Congress' militia powers as a convenience which alleviated some of the expense and trouble of maintaining large standing forces. Under The Selective Draft Law Cases Congress can abolish the state militia by conscripting all able bodied men directly into the regular army.[51] In deciding the case, the Supreme Court took note of Kneedler v. Lane, but disregarded the suggestion that the Second Amendment protected the existence of state militia.

V. Hamilton v. Regents: A Lone Citation

A. State-Mandated Training Upheld, with Caveat

There is one Supreme Court decision in which the Second Amendment was cited for the proposition that the states retain certain powers. However, the case, Hamilton v. Regents,[52] involved no contest between state and federal acts and placed no limit on federal power. Nor did it even involve a question of militia power per se. Hamilton was a suit brought by pacifist college students objecting to a California state requirement that they take military training while attending state-funded universities. The Supreme Court held that:

Undoubtedly every state has authority to train its able-bodied male citizens of suitable age appropriately to develop fitness, should any such duty be laid upon them, to serve in the United States Army or in state militia ... or as members of local constabulary forces or as officers needed effectively to police the state.... So long as its action is within retained powers and not inconsistent with any exertion of the authority of the national government and transgresses no right(p.57) safeguarded to the citizen by the Federal Constitution, the state is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. Second Amendment; Houston v. Moore, 5 Wheat. 1, 16, 17; Dunne v. People (1879) 94 111. 120, 129, 34 Am. Rep. 213; 1 Kent's Commentaries, 265, 389. Cf. Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580.[53]

Here the Second Amendment, as well as Houston v. Moore and Dunne v. People, were cited for the proposition that the states retain the authority to provide or even require certain training of their citizens in preparation for service in the militia or police or other such organizations, or even in preparation for service in the federal army, with the proviso that any such training must be "within retained powers and not inconsistent with any exertion of national authority." Again, this leaves the militia power, if the case refers to state militia power at all, subject to "conflict preemption." It would be quite remarkable if the Court had held the authority of the states to train its citizens were protected from federal interference, because Article I, Section 8, Clause 16 specifically reserves to the states the authority to train the militia according to the discipline prescribed by Congress.

The immediate question in Hamilton was not whether state authority was protected from Congress, but whether it was protected from claims of immunity by students of state universities. The citation to the Second Amendment is thus obscure, because it seems to imply that the constitutional function of the Second Amendment consists of protecting the state governments from their own citizens. This would certainly make the Second Amendment unique among the Bill of Rights, and is surely not the construction intended by the constitutional framers, nor probably by the Court in Hamilton. It seems much more likely that the Court cited the Second Amendment in this case, as had Justice Story in his Houston dissent, merely as being illustrative of the importance of the militia to the states. The Court's opinion in Hamilton explicitly recognized that state legislation in this area was subordinate to national legislation.

B. The Cases Cited in Hamilton Briefly Discussed

Justice Butler's citation to two pages of the Houston opinion gives the appearance of referring to a passage supporting the preservation of state militia powers, but this reflects an error in reading; upon close examination one can see that Justice Washington was merely paraphrasing an argument of the defendant's counsel, which he(p.58) ultimately rejected.[54] Support for concurrent state power was voiced in the Houston concurring and dissenting opinions, but in both cases with the stipulation that state legislation must not conflict with that of Congress.

Presser v. Illinois,[55] a Supreme Court case cited for comparison by the Hamilton court, dates from 1886, and involved an Illinois man convicted of illegally parading a company of armed men in violation of a section of the Illinois state militia law. Presser's counsel began by arguing that the entire militia law of Illinois was an unconstitutional trespass upon Congress's authority to organize and arm the militia. Counsel cited Houston v. Moore in support of this contention.[56] The Supreme Court, however, held that the specific sections of the Illinois statute under which Presser had been charged, prohibiting the formation or parading of unauthorized "private militia," were severable from those sections which had the purpose of organizing the state militia, and which might or might not be invalid.[57] The Supreme Court therefore declined to review the validity of state militia legislation in this case, but left it open to question with pointed language:

We have not found it necessary to consider or decide the question thus raised, as to the validity of the entire Military Code of Illinois, for, in our opinion, the sections under which the plaintiff in error was convicted may be valid, even if the other sections of the act were invalid. For it is a settled rule "that statutes that are constitutional in part only will be upheld so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are separable.[58]

Presser's counsel also raised a Second Amendment defense, which the Court rejected because the Second Amendment, like the rest of the Bill of Rights, had not by 1886 been incorporated against the states.

Another case cited by the Hamilton court, Dunne v. People,[59] an Illinois state high court decision, does argue for the preservation of state militia power from Congressional preemption of the "field" type. While not binding on the federal courts, Dunne deserves comment if only because of its citation by the U.S. high court. Dunne(p.59) involved a militiaman claiming exemption from jury duty under a section of the Illinois militia law. Failing to appear as requested by the Criminal Court of Cook County, Dunne was fined by a county judge who refused to accept the validity of the state law. In a political atmosphere charged by tensions over labor disputes, private militias, and the constitutionality of the National Guard, Dunne and the prosecutor agreed to ask the opinion of the state supreme court as to the validity of Illinois' militia laws under the federal constitution.[60] The Illinois high court obliged with a nineteen-page opinion repeatedly asserting the authority of the state of Illinois to enact legislation organizing the state militia along its own lines, provided that the militia were also available for federal use, re-organized for such occasions along the lines required by federal law. Paradoxically the Illinois court also admitted that, "[w]hen Congress has once acted within the limits of the power granted in the constitution, its laws for organizing, arming and disciplining the militia are supreme, and all interfering regulations adopted by the States are thenceforth suspended, and for the same reasons all repugnant legislation is unconstitutional."[61]

The court in Dunne alluded to the Second Amendment in three places, once quoting the amendment's "preamble" as illustrating the necessity of the militia to the states, then quoting the entire amendment for the same proposition, and later distinguishing between Illinois' prohibition of unauthorized military companies, and, "[t]he right of the citizen to 'bear arms' for the defence of his person and property," which, the court said, "is not involved, even remotely, in this discussion."[62]

Ultimately, the Illinois high court did not regard the Second Amendment as having more than illustrative significance to matters of federal preemption. Instead the court relied on constitutional construction and a marked misreading of Houston v. Moore. The Dunne opinion was sufficient for the political purposes of the day, but is remembered now less for its own merits than for having been cited in Hamilton, and both decisions allowed that state militia powers are subject to what in Professor Tribe's terms would be called "conflict preemption."[63](p.60)

VI. Perpich v. Dep't of Defense: After All These Years, Where is the 'States' Right'?

The Selective Draft Law Cases decision in 1918 had addressed only one of the state/federal issues arising when the federal government appropriates the militia. With the passage of the Dick Act in 1903, and the National Defense Act of 1916, Congress imposed a "dual enlistment" system on the National Guard.[64] Under this system, still in effect, any person joining the National Guard is also required to accept membership in the reserve units of the regular armed forces. The members of the "state militia" are thus simultaneously members of the federal army.[65] This method of overhauling the militia system, while rejuvenating a moribund institution, created a tangle for anyone attempting to understand the state/federal relationship with regard to the militia. A 1917 article in the Yale Law Journal by Major and Judge Advocate S.T. Ansell presciently observed:

The National Guard, then, is organized militia placed in a special federal status. The grave question is: Whence came the federal power to impose the new and additional status of the militia of the(p.61) several states? Is the source of authority to be found in the "power" to provide for organizing, arming and disciplining the militia, or in the power "to raise and support armies?" Or is it not to be found at all? Is the National Guard still but the militia of the several states subject only to the limited constitutional use of the federal government, or is it indeed an army of the United States over which the power of Congress is unlimited? The question is fundamental, and though it received scant consideration in Congress, it may be expected to persist, if not to plague.... The [National Defense] act is prickly with doubt, and it is not over- cautious to say that it will be a long time before judicial authority will have shown the way of handling it with assurance.[66]

Ansell was correct in his prediction; the constitutional difficulties he observed went unhandled by judicial authority for 73 years until the Supreme Court ruled in Perpich v. Dep't of Defense[67] that the dual enlistment system of the National Guard was a constitutional exercise of Congress' power to raise armies.

Perpich involved a direct challenge by the states to Congressional authority over the militia. The issue in Perpich however, was not Congressional preemption of state legislation, but rather the constitutionality of Congress' repeal of its own provision which had previously allowed governors to decline to send National Guard units outside the United States on training missions. The conflict in Perpich was between federal legislative and state executive powers and was resolved decisively in favor of the federal government.[68]

Most of the Perpich opinion is devoted to a recapitulation of the evolution of the National Guard. The Court's reasoning in upholding the arrangements created by Congress was essentially the same as that found in the Selective Draft Law Cases. In Perpich it was decided that under its power to raise armies, Congress can constitutionally create a system (the National Guard) whereby the state militia are simultaneously enrolled in the Army or Air Force reserve, and can be called forth for any reason, including overseas training, in their federal, regular-army capacity. In response to the(p.62) objections of Governor Perpich of Minnesota that this arrangement, by which Congress can strip the states of their militia indefinitely and at any time, was unconstitutional, the Supreme Court did not cite the Second Amendment, but instead noted three facts: (1) The overseas training missions to which Governor Perpich objected usually involved limited numbers of Guardsmen, leaving the state an adequate force; (2) The Montgomery Amendment of 1986 (to the militia code) allowed the Governor to withhold consent to such training missions if the Guard were needed for an actual state emergency;[69] and (3) Congress, under 32 U.S.C. Section 109(c) allows the states to keep, at their own expense, "defense forces" which are exempt from conscription into national service.[70] These "forces," being not subject to federal call, are not the "militia" of Article I, Section 8, which is explicitly subject to federal call, and is presumably the same militia referred to in the Second Amendment.[71]

In other words, Congress, by statute, allows the states some accommodation for "defense forces," but not for militia. Congress is apparently not required to make any accommodation for militia by any constitutional provision other than Clause 16 of Article I, Section 8. In discussing the constitutional underpinnings of the decision, the Court observed:

This Court in Tarble's Case, 13 Wall. 397 (1872), had occasion to observe that the constitutional allocation of powers in this realm(p.63) gave rise to a presumption that federal control over the Armed Forces was exclusive. Were it not for the Militia Clauses, it might be possible to argue on like grounds that the constitutional allocation of powers precluded the formation of organized state militia. The Militia Clauses, however, subordinate any such structural inferences to an express permission while also subjecting state militia to express federal limitations.[72]

Here the Court clearly declined an opportunity to identify the Second Amendment as an express protection of state power. Instead the Court described the Militia Clauses, which reserve to the states the power to appoint officers and to train the militia according to the discipline prescribed by Congress, as the sole obstacle to federal prohibition of state militia. If the Second Amendment represents the protection of state power from federal preemption, the Justices would have been remiss in not citing it in the above passage. In fact, in this most recent decision involving a direct challenge by the states to federal interference with the militia, the Second Amendment was nowhere to be seen.

It would be a mistake, however, to read these Supreme Court militia-related cases only as "negative evidence" of the nature of the Second Amendment. These cases are much more significant for what they do say about federal preemption of state militia authority than for what they don't say about "the right of the people to keep and bear arms."

Lower federal courts have persistently maintained that the Second Amendment protects a state-held power from federal interference, or that it protects individual activity from Congressional infringement only within state-sponsored military activity. But in so ruling, these courts have adopted the untenable position that the Second Amendment guarantees the state governments an immunity which the U.S. Supreme Court has, for 180 years, consistently ruled does not exist. Rather than representing bits of dicta with implications for the Second Amendment, the Supreme Court militia- law rulings stand in direct contradiction to the numerous lower federal court gun-case rulings; they render the lower court rulings transparently and fatally flawed. Whatever right one believes is protected by the Second Amendment, surely it cannot be made contingent on military activity that the states are ultimately powerless to authorize. The suggestion that the Congressionally-mandated(p.64) National Guard system has somehow circumvented or supplanted a right expressly guaranteed to the people is a fallacy of the most obvious sort: "The constitution is either a superior, paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts ... if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."[73]

When a gun possession case comes before a district or appeals court, we are told that the Second Amendment protects only state militia authority from Congressional interference, but when an actual militia case comes before the Supreme Court, we find the specified immunity does not exist. The jurisprudence of the circuit courts of appeals is indeed circular.

VII. Militia Preemption Informs Other Areas of Jurisprudence

Might it be possible to extrapolate from Supreme Court jurisprudence in non-militia areas some further indication of how federal preemption applies to the militia powers? The danger in such an exercise would seem to lie in assuming that federal preemption of state militia powers is analogous to federal preemption of other state powers. The Supreme Court, however, has spared us any such concerns over speculative assumptions by repeatedly citing the militia as an example of Congress' ability to preempt state power. Justice Story's exposition of "field preemption," seen above in Prigg v. Pennsylvania, is but one example. The Court's field preemption holding in the Houston militia case was also cited favorably by the Court in Cooley v. Board of Wardens,[74] a landmark commerce case for the proposition, "that it is not the mere existence of such a power but its exercise by Congress, which may be incompatible with the exercise of the same power by the States, and that the States may legislate in the absence of congressional regulations."[75] In Gilman v. Philadelphia,[76] an interstate commerce case, the Court cited Houston for the proposition that the states retain concurrent powers of legislation except where the Constitution has explicitly made federal power exclusive, or prohibited such power to the states, or, "[w]here from the nature and subjects of the power, it must necessarily be exercised by the National Government exclusively."[77] In The Legal Tender Cases, Justice Bradley in his concurring opinion listed the(p.65) militia powers among those that characterize the supremacy of the federal government:

The United States is not only a government, but it is a National government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all which are forbidden to the State governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws, such as the coinage, weights and measures, bankruptcies, the postal system, patent and copyright laws, the public lands, and interstate commerce; all which subjects are expressly or impliedly prohibited to the State governments. It has power to suppress insurrections, as well as to repel invasions, and to organize, arm, discipline, and call into service the militia of the whole country.[79]

Claflin v. Houseman[80] involved a question of possible overlapping state and federal court jurisdiction, and here the Supreme Court again endorsed the version of "field preemption" propounded by Justice Washington in 1820: "[t]he act of Congress having instituted courts-martial, as well as provided a complete code for the organization and calling forth of the militia, the entire law of Pennsylvania on the same subject might well have been regarded as void.[81] Justice Brandeis, speaking out in his Gilbert v. Minnesota[82] dissent against a state law that prohibited public speech-making by pacifists, asserted, as Justice Bradley had in Gilman, that national defense and the militia were areas primarily of federal concern, and noting Houston said that:

[T]he responsibility for the maintenance of the Army and Navy, for the conduct of war and for the preservation of government, both state and federal, from "malice domestic and foreign levy" rests upon Congress. It is true that the States have the power of self-preservation inherent in any government to suppress insurrection and repel invasion; and to that end they may maintain such a force of militia as Congress may prescribe and arm. Houston v. Moore, 5 Wheat. 1. But the duty of preserving the state governments falls ultimately upon the Federal Government, Luther v. Borden, 7 How. 1.... And the superior responsibility(p.66) carries with it the superior right. The States act only under the express direction of Congress.[83]

Three decades later, when the Supreme Court finally did strike down a state sedition law in Pennsylvania v. Nelson[84] Chief Justice Warren had recourse to Houston v. Moore in dispensing with the offensive legislation:

Since we find that Congress has occupied the field to the exclusion of parallel state legislation, that the dominant interest of the Federal Government precludes state intervention, and that administration of state Acts would conflict with the operation of the federal plan, we are convinced that the decision of the Supreme Court of Pennsylvania is unassailable. We are not unmindful of the risk of compounding punishments which would be created by finding concurrent state power. In our view of the case, we do not reach the question whether double or multiple punishment for the same overt acts directed against the United States has constitutional sanction. Without compelling indication to the contrary, we will not assume that Congress intended to permit the possibility of double punishment. Cf. Houston v. Moore, 5 Wheat. 1, 31, 75; Jerome v. United States, 318 U.S. 101, 105.[85]

In Missouri Pacific v. Porter[86] another interstate commerce case, the Court cited Houston in saying of Congress that,

Its power to regulate such commerce and all its instrumentalities is supreme; and, as that power has been exerted, state laws have no application. They cannot be applied in coincidence with, as complementary to or as in opposition to, federal enactments which disclose the intention of Congress to enter a field of regulation that is within its jurisdiction.[87]

More recently, Justice O'Connor cited Houston v. Moore both for concurrent jurisdiction and legislative preemption in her majority opinion in Tafflin v. Levitt[88] which involved concurrent jurisdiction of state courts in civil cases arising under federal law:

We begin with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, we have consistently held that state courts have inherent authority, and are(p.67) thus presumptively competent, to adjudicate claims arising under the laws of the United States. See, e.g., Houston v. Moore, 5 Wheat. 1, 25-26, (other citations omitted)... This deeply rooted presumption in favor of concurrent state court jurisdiction is, of course, rebutted if Congress affirmatively ousts the state courts of jurisdiction over a particular federal claim. See, e.g., Claflin, supra, at 137 ("Congress may, if it see[s] fit, give to the Federal courts exclusive jurisdiction") (citations omitted); see also Houston, supra at 25-26.[89]

In his concurring opinion in the same case, Justice Scalia, joined by Justice Kennedy, also found a useful guidepost in Houston v. Moore. "It therefore takes an affirmative act of power under the Supremacy Clause to oust the States of jurisdiction-an exercise of what one of our earliest cases referred to as 'the power of congress to withdraw federal claims from state-court jurisdiction."[90]

The Supreme Court, with each of the foregoing citations, accepted that the power of Congress to preempt state militia legislation is analogous to the power of Congress to preempt state legislation in other areas of delegated power.[91] These high court decisions refute the notion that the Second Amendment creates an exception to Congressional power over the "state" militia. The Supreme Court considers the militia to be a model of how Congress can limit the power of the states.[92](p.68)

The famous 1824 case Gibbons v. Ogden[93] resulted in one of the most important preemption decisions ever issued by the high court. Gibbons was an interstate commerce case, but the losing counsel, casting about for evidence to support the power of the states to regulate concurrently with Congress, seized on Justice Story's Houston v. Moore dissent from four years earlier, citing it seven times for its espousal of the concurrence of state militia powers, as well as citing Justice Johnson's concurring opinion three times for the same proposition, and also making the same erroneous cite to Justice Washington's paraphrasing of counsel noted above in discussing Hamilton v. Regents.[94] In all, the losing counsel in Gibbons selectively cited from Houston v. Moore eleven times for a losing proposition: concurrent authority of the states to legislate over an area in which Congress has exercised a delegated power.[95] The argument, perhaps designed to appeal to Justices Story and Johnson, seems to have failed to impress either one of them, for the Court's decision in Gibbons was unanimous in striking down the state legislation at issue and propounding a version of "field preemption."

It would be a mistake, of course, to make too much of the citations offered by counsel in Gibbons, and their apparent rejection by the Marshall court. But it is intriguing that four years before deciding Gibbons the Justices engaged in a thorough and divisive debate over the preemptive effect of federal legislation on state militia law. Nearly every legal scholar to have written about Gibbons has not hesitated to compare it to Sturges v. Crowninshield,[96] an 1819 bankruptcy case which involved a concurrent power question but only an easily disposed-of question relating to federal preemption (Congress had enacted, then repealed, its own bankruptcy regulation). Far from being an isolated decision on an arcane subject, Houston is of seminal importance to federalism as expounded(p.69) by the high court. G. Edward White recognized the significance of Houston v. Moore in his History of the Supreme Court:

The question whether, if Congress is delegated an exclusive regulatory power over a delineated area, and does not exercise it, or only partially exercises it, the states may exercise any regulatory powers in this area was, as we shall see, the fundamental issue in the Commerce Clause cases... But as significant as this question was, it had not been addressed in detail by the Marshall Court before Houston.[97]

VIII. The Concrete Effects of Militia Preemption

One more legal controversy involving the militia deserves recognition here: the antebellum attempts by the Massachusetts Legislature to re-define militia eligibility. At the Massachusetts Constitutional Convention of 1853 delegates proposed amending the state constitution to allow for the enrollment in the militia of non-white citizens.[98] The measure was taken up specifically in response to a petition by free blacks, and from the discussion which followed it appears that a good deal of sympathy existed for granting their request. Nonetheless, in a remarkably earnest debate, delegates eager to avoid a "nullification" controversy argued persuasively that the state could not constitutionally enroll in the militia any citizen who would be excluded from such service under federal militia law. This argument was premised on general constitutional grounds, not racial distinctions, and was accepted as legally valid even by the abolitionist Charles Sumner, who otherwise supported black militia enrollment.[99]

The applicable federal law in 1853 was still the Militia Act of 1792, which required the enrollment of all free, white, male citizens.[100] Advocates of black militia enrollment were not able to muster a legally-credible response to the argument that state authority in this area had been federally preempted, since it was plain to everyone that Congress held the power to 'organize, arm, and discipline' the militia, and had legally exercised it.[101](p.70)

But the enrollment issue was not forgotten, and took on a new urgency following Dred Scott v. Sandford[102] in which Chief Justice Taney had reasoned away Scott's standing in part with the observation that federal law excluded Scott and all other black Americans from militia service, which Chief Justice Taney called, "one of the highest duties of the citizen."[103] Had the state of Massachusetts successfully enrolled free blacks in the militia, their names would have been included in the muster rolls returned to the federal government, and they would have become liable to federal service - a powerful argument for their standing in federal court, and possibly undermining the Dred Scott decision.[104]

In late 1859, and again in early 1860, the Massachusetts House and Senate passed legislation which struck the word "white" from the state militia eligibility requirements. Both attempts met with gubernatorial vetoes.[105] Governor Nathaniel P. Banks had consulted the Massachusetts Supreme Judicial Court, as well as his attorney general, on the constitutionality of the legislation.

The Supreme Judicial Court issued a unanimous advisory opinion announcing that, in their view, Massachusetts could not constitutionally enroll in the militia any person who was excluded under federal militia law.[106] The state high court's opinion included no citations indicating the source of the doctrine, but a similar opinion issued days earlier by the state attorney general had cited Houston v. Moore as the governing case.[107]

The implications of the Massachusetts enrollment controversy are significant: the state legislature sought to arm its citizens as militia; the Supreme Judicial Court, recognizing that Congress had exercised the power to "organize and arm" the militia, declared, "The general government having authority to determine who shall and who may not compose the militia, and having so determined, the state government has no legal authority to prescribe a different enrolment."[108](p.71)

A clearer example of federal preemption as it relates to the Second Amendment could hardly be found than the inability of Massachusetts to enroll militiamen. If the states cannot constitutionally place arms in the hands of their citizens in defiance of deficient and inhibiting federal militia regulations, then in what way does the Second Amendment serve to protect the state militia or a state-sponsored right to bear arms? The federal government, not the states, holds the authority to define the organized militia, and thus to dictate who may be armed as organized militia.[109] According to the Massachusetts Supreme Judicial Court, the Second Amendment was irrelevant to the matter of the state's ability to arm militia: "Nor is this question, in our opinion, affected by the second article of the amendments of the Constitution, of the following tenor: '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.'" [110]

IX. Conclusion

The federal court gun-possession case pronouncements bearing on the militia and federalism are irreconcilable with the actual constitutional status of state militia regulation as expounded by the U.S. Supreme Court. Intentionally or otherwise, jurists have deluded themselves and the legal community into accepting the convoluted proposition that plenary power to organize and arm the militia was both delegated to Congress (through the Militia Clauses) and(p.72) reserved to the states (under the Second Amendment).[111] If such a phenomenon exists in the U.S. Constitution it is remarkable that the Supreme Court has never cited the Second Amendment as an example of "dual sovereignty," "dual federalism," or "new federalism" in the course of its endless labors to define the boundaries of state and federal power.

In actual Supreme Court jurisprudence, there is no constitutional provision other than Article I, Section 8, Clause 16 which limits Congressional interference with the "state" militia. The Court's repeated citations to the preemption of state militia law when adjudicating state-federal conflicts in other areas of regulation greatly reinforce the conclusion that state militia powers are ordinary in their susceptibility to federal preemption. Because the Second Amendment is not a prophylactic benefiting state legislative or executive powers, it must represent either a nonsensical protection of federal militia powers from federal interference,[112] or it represents some type of right held directly by the people. Any benefit to the state governments from the Second Amendment must be incidental to a citizen-held right binding on the federal government.

The dwindling proponents of the "states' right" interpretation of the amendment cannot point to a single instance of a militia-related(p.73) federal law being invalidated on Second Amendment grounds, despite the Supreme Court having had multiple opportunities spread over two centuries to invoke the amendment for that purpose.

The suspicious obstinance of the lower federal courts in clinging to the "states' right" interpretation presents a serious obstruction to the proper adjudication of the nature and scope of the Second Amendment right, and thus serves only to exacerbate and prolong the current public-policy impasse regarding gun ownership. The American public deserves a more considered, consistent, and constitutional approach to the delineation of the Second Amendment right. The decisions of the lower federal courts in Second Amendment cases cannot ultimately withstand high court scrutiny; a consistent body of Supreme Court jurisprudence spanning 180 years places federal preemption of state militia powers among the most well-settled propositions in American constitutional law.

[*]J. Norman Heath is a private scholar currently residing in Massachusetts.

     This paper is dedicated to the memory of Harold Lee Heath 1918 - 2000.

The author wishes to thank Charles Eichhorn, Esq; Mark Fuller; Dr. Steve West; Prof. Milton Cantor, Prof. Daniel Gordon, Prof. Ron Story, Prof. Emeritus Dean Alfange, Prof Janet Rifkin, and Barbara Morgan M.L.S, J.D., all of the University of Massachusetts at Amherst; Prof. Joyce Lee Malcom; David Hardy, Esq.; Prof. Glenn Reynolds- Robert Dowlut, Esq.; David Kopel, Esq.; Clayton Cramer; Prof. Laurence H. Tribe; Prof. Eugene Volokh; David I. Caplan, Esq.; The National Institute on Firearms and Society, a bipartisan educational group which graciously helped offset the author's submission-related expenses; and his wife, Holly, who is still waiting for a great many chores to get done.

[1] 18 U.S. (5 Wheat.) 1 (1820).

[2] The Court's opinion has actually been cited by the high court 35 times. There are another 30 or so cites to the concurring or dissenting opinions, though the dissent seems later to have been in part repudiated by its author. See infra text accompanying notes 31-32. Houston has been cited as precedent for a variety of propositions which are more or less closely related, involving double jeopardy, concurrent jurisdiction, and concurrent legislative power; See also infra note 92.

[3] The Militia Clauses are clauses 15 and 16 of Article I, section 8 of the U.S. Constitution:

The Congress shall have the Power...


To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions.

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.

[4] The Second Amendment to the U.S. Constitution reads, "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."

[5] U.S. v. Tot, 131 F.2d 261, 266 (3rd Cir. 1942).

[6] Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971) .

[7]. It is referring the reader to a very small sampling of the recent body of work to mention William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE LJ. 1236-55 (1994); Sanford Levinson, The Embarrassing Second Amendment, 99 YALE LJ. 637-59 (1989); Keith Ehrman & Dennis Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L. REV. 5 (1989); Akhil Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1162-75 (1991); and David C. Williams, The Militia Movement and Second Amendment Revolution: Conjuring with the People, 81 CORNELL L. REV. 879-952 (1996). The total number of articles published on the subject, dating back at least to 1874, is in the hundreds. See The Right to Keep and Bear Arms for Private and Public Defence, 1 CENT. LJ., 259-61, 273-75, 285-87, 295-96 (1874J (John F. Dillon, & S.D. Thompson, eds.).

[8]. U.S. v. Warin, 530 F.2d 103, 108 (6th Cir. 1976). At this writing, the Fifth Circuit Court of Appeals has heard arguments in U.S. v. Emerson, a gun possession case in which, for the first time in sixty years, a district court has thrown out an indictment on Second Amendment grounds. See also U.S. v. Cody Hutzell, 217 F. 3d 966, 969 (8th Cir. 2000); U.S. v. Spruill, 61 F. Supp. 2d 587 (W.D. Texas 1999). Both of the latter cases appear to treat the Second Amendment right as individual, albeit of limited scope.

[9]. A few authors have dropped strong hints pointing in this direction. See Gregory Lee Shelton, In Search of the Lost Amendment: Challenging Federal Firearms Regulation Through the State's Right Interpretation of the Second Amendment, 23 FLA. ST. U.L. REV. 105 (1995); Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and State's Right's: A Thought Experiment, 36 WM. & MARY L. REV. 1737 (1995); David Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV., 1359; Robert Dowlut, The Right to Keep and Bear Arms: A Right to Self-Defense Against Criminals and Despots, 8 STAN. L. & POLYREV. 25-40 (1997); Stephen Halbrook, The Right of the Workers to Assemble and to Bear Arms, 76 U. DET. MERCY L. REV. 943 (1999).

[10]. The last Supreme Court case, and possibly the only meaningful one, to address the Second Amendment was U.S. v. Miller 307 U.S. 174 (1939), which has been interpreted by both courts and scholars as standing alternately for the proposition that the Second Amendment protects only the possession of firearms in actual, government-sponsored militia service, or only the possession of those kinds of firearms which might be useful in a citizen militia. Miller was an evidence case and was remanded to the district court for further proceedings, which never took place because the defendant absconded after the quashing of the indictment by the district court and was thereafter murdered. In fact the defense made no appearance at all before the Supreme Court; arguments were heard only from the federal prosecutor. Every aspect of the debate over Miller has already been beaten to death in the journals, and its only relevance to the topic of this article is that there is no consensus on exactly what the Miller decision means. The court in Cases v. U.S., 131 F.2d 916,922 (1st Cir. 1942), for example, found Miller of limited value as precedent: "[I]f the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus," while most subsequent courts have chosen to find in Miller a rule for broad application, see list infra note 11.

[11]. See e.g., U.S. v. Nelsen, 859 F.2d 1318, 1320 (8th Cir. 1988), "Later cases have analyzed the second amendment purely in terms of protecting state militias, rather than individual rights"; U.S. v. Cody, 460 F.2d 34, 37 (8th Cir. 1972), "We find no evidence that the prohibition of 922 (a) (6) obstructs the maintenance of a well regulated militia"; U.S. v. Warin, 530 F.2d 103, 106-08 (6th Cir. 1976), "It is also established that the collective right of the militia is limited to keeping and bearing arms, the possession or use of which at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia.... It would unduly extend this opinion to attempt to deal with every argument made by defendant and amicus curiae ... all of which are based on the erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the States"; U.S. v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974), "The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms . . . ."; U.S. v. Hale, 978 F.2d 1016, 1021 (8th Cir. 1992), "The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia."; U.S. v. Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. 1981), "[I]t is further held that the right guaranteed by the Second Amendment is a collective right to bear arms rather than an individual right, and has application only to the right of the state to maintain a militia and not to the individual's right to bear arms"; U.S. v. Kraase, 340 F. Supp. 147, 148 (E.D. Wis. 1972), "Second amendment protection to Mr. Kraase might arise if proof were offered at the trial demonstrating that his possession of the weapon in question had a reasonable relationship to the maintenance of the 'well-regulated Militia'"; Vietnamese Fisherman's Assoc. v. Ku Klux Klan, 543 F. Supp. 198, 210 (S.D. Tex. 1982), "By its express language, that Amendment prohibits only such infringement on the bearing of weapons as would interfere with 'the preservation or efficiency of a well regulated militia,' organized by the State." See also U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977); U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971); U.S. v. Johnson, Jr., 441 F.2d 1134 (5th Cir. 1971); Thompson v. Dereta, 549 F. Supp. 297 (D. Utah 1982); U.S. v. Gross, 313 F. Supp. 1330 (S.D. Ind. 1970).

[12]. Laurence H. Tribe, American Constitutional Law 6-28, at 1176-77 (3d ed.2000).

[13]. Id. at 1177.

[14]. 1 Stat.424, ch.36 (1795).

[15]. Section 21 of the Act of the State of Pennsylvania, of the 28th of March, 1814.

[16]. Houston v. Moore, 18 U.S. (5 Wheat) 1, 3-4.(1820)

[17]. Id. at 16, 20-21, 24.

[18]. Id. at 15. The federal militia acts mentioned were those of May 2 1792- Feb 28, 1795; and April 18, 1814 (emphasis added).

[19]. Id. at 21-24 (emphasis added).

[20]. 1 Stat. 271, ch. 33 (1792), "An Act More Effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States."

[21]. Moore, 18 U.S. at 26-31. 1 Stat. 424, ch. 36 (1795), "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the act now in force for those purposes." The judiciary act mentioned was evidently that of 1789.

[22]. This explanation of the Court's decision in Houston is confirmed by Justice Story in Martin v. Mott, 25 U.S. 19, 34 (1827), and by Justice O'Connor in Tafflin v. Levitt, 493 U.S. 455, 458-59 (1990). See also Laurence H. Tribe, American Constitutional Law 6-2, at 1036 n.35 (3d ed. 2000).

[23]. Moore, 18 U.S. at 32. Justice Johnson went even further, remarking

In this case, it will be observed, that there is no point whatever decided, except that the fine was constitutionally imposed upon the plaintiff in error. The course of reasoning by which the judges have reached this conclusion are various, coinciding in but one thing, viz., that there is no error in the judgment of the State Court of Pennsylvania.

Id. at 47. As shown later in this article, however, the Supreme Court has many times accepted the precedential value of Houston. David B. Sweet has commented that in Houston, "there was apparently a majority result without a majority opinion." DavidB. Sweet, Annotation, Supreme Court's Construction and Application of Federal Constitution's Militia Clause (Art. I, 8, CIs. 15 and 16), Allocating Power Over Militia Between Congress and States, 110 L. Ed. 2 738, 746 (1992). In fact there was a Court's opinion, approved by a majority. The high court at the time consisted of seven members: Justice Washington wrote the Court's opinion; a concurring opinion was written by Justice Johnson alone; Justice Story wrote a dissent, and added at page 76: "In this opinion I have the concurrence of one of my brethren." The unnamed justice joining Story was none other than Chief Justice John Marshall: Writings of John Marshall, at viii (Boston, Munroe 1839); G. Edward White, History of the Supreme Court vols. III-IV, 536-37. So it appears that the Court's opinion represented the views of Justices Washington, Duvall, Livingston, and Todd, not in every particular, but to a greater extent than the concurrence or dissent.

[24]. Moore, 18 U.S. at 34, 45 (emphasis added).

[25]. Justice Story assisted in the publishing of Marshall's writings, where the Houston dissent was published alongside Marshall's own opinions and labeled as, "an expression of Marshall's view, as well as his [Story's] own, upon a somewhat dark point. "Writings of John Marshall, at viii. It seems Marshall actually delegated the writing of the opinion to Story, providing him with a sketch of his ideas. White, supra, note 23.

[26]. Moore, 18 U.S. at 71-72.

[27]. Id. at 49-50, 50-54 (emphasis added).

[28]. Cf. Dukakis v. Dep't of Defense, 686 F. Supp. 30 (D. Mass. 1988), 36, aff'd 859 F.2d 1066 (1stCir. 1988).

[29]. See Meade v. Deputy Marshal, 16 F. Cas. 1291 (C.C.D.Va. 1815) (No. 9372) (decided by Marshall while sitting as a circuit judge in Virginia); Calendar of Virginia State Papers vol. VII 347-48, (Richmond, 1888) (publishing Marshall's Oct. 1794 advisory opinion as Attorney General of Virginia).

[30]. Moore, 18 U.S. at 75-76.

[31]. 41 U.S. (16 Pet.) 539 (1842) (Chief Justice John Marshall died in 1835)

[32]. Id at 617-18.

[33]. 25 U.S. (12 Wheat.) 19 (1827).

[34]. Id. at 29.

[35]. William Hyslop Summer, Militia Laws of The United States and of hte Commonwealth of Massachusetts . . . and a Discussion of an Important Constitutional Question 114 (Dedham, MA, Gazette Office, 1815) (quoting an advisory opinion reported at Opinion of the Justices 8 Mass. 549 (1812)) (Only three of the seven justices were available for the opinion, the rest being outside Boston at the time. For a contemporary discussion of the controversy, see Id., 109-36).

[36]. Martin, 25 U.S. at 29. Cf. McCall's Case, 15 F. Cas. 1225, 1229-30 (E.D. Pa 1863) (No. 8669).

[37]. 22 U.S. (9 Wheat.) 1 (1824).

[38]. 48 U.S. (7How.) l (1849).

[39]. Id. at 16, 18.

[40]. Id. at 42, 45.

[41]. U.S. Const. art. IV 4 of the Constitution reads: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

[42]. See Perpich v. Dep't of Def., 496 U.S. 334 (1990), in which was found constitutional the system by which the National Guard not only can be federalized, but essentially has a federal status simultaneous with its state affiliation.

[43]. 39 Stat. 166, ch. 134 (1916) (National Defense Act of June 3, 1916)

[44]. 245 U.S. 366 (1918).

[45]. Kneedler v. Lane, 45 Pa. 238; 1863 Pa. LEXIS 152 (Sup. Ct. Penn., 1863)(upholding conscription). Cited at 245 U.S. 366, 388.

[46]. Kneedler v. Lane, 45 Pa. 238; 1863 Pa. LEXIS 151, Nov. 9, 1863; Decided; Kneedler v. Lane, 3 Grant 465; 1863 Pa. LEXIS 268 (Sup. Ct. Penn., E. Dist., November 9, 1863) (granting an injunction against national conscription). Kneedler v. Lane, 45 Pa. 238, includes both a decision against the constitutionality of the draft and the subsequent reconsideration which found the draft constitutional.

[47]. Kneedler v. Lane, 45 Pa. 238; 1863 Pa. LEXIS 151, at 271-72; Kneedler v. Lane, 3 Grant 465; 1863 Pa. LEXIS 268 (Sup. Ct. Penn., E. Dist., November 9, 1863), at 498. Both citations include the concurring opinion cited.

[48]. Kneedler v. Lane, 3 Grant 523; 1864 Pa. LEXIS 201 (Sup. Ct. Penn., E. Dist. January 16, 1864) and Kneedler v. Lane, 45 Pa. 238; 1863 Pa. LEXIS 152 (Sup. Ct. Penn., 1863).

[49]. Selective Draft Cases, 245 U.S. at 383 (emphasis added).

[50]. See also Cox v. Wood, 247 U.S. 3, 6 (1918).

[51]. Cf. McCall's Case, 15 F. Cas. 1225 (E.D. Pa. 1863) (No. 8669); Ex Parte Dostal, 243 F. 664 (1917); Rostker v. Goldberg, 453 U.S. 57 (1981); Dukakis v. Dep't of Defense, 686 F. Supp. 30, 36 (D. Mass. 1988); Perpich v. Dep't of Defense, 496 U S 334 (1990).

[52]. 293 U.S. 245 (1934).

[53]. Id. at 260-61 (emphasis added).

[54]. At pages sixteen and seventeen of the Court's opinion in Houston v. Moore, Justice Washington paraphrases an argument of counsel which, after analyzing it at pages twenty-one through twenty-four, he clearly rejects. See also infra, note 92.

[55]. 116 U.S. 252 (1886).

[56]. Id. at 255-57.

[57]. Id. at 264.

[58]. Id. at 263.

[59]. 94 Ill. 120 (1879).

[60]. Id. at 123. See also Stephen Halbrook, The Right of the Workers to Assemble and to Bear Arms, 76 U. Det. Mercy L. Rev. 943, 969-72 (1999).

[61]. Dunne, 94 111. at 129.

[62]. Id. at 126, 132, 140.

[63]. A federal appeals court decision from the same year as Hamilton noted the reserved power of the states under Article I, Section 8, Clause 16 to appoint officers to the militia, and in reference to this held that the states may "govern" the militia when it is not in federal service. U.S. v. Dern, 74 F. 2d 485, 487 (D.C. 1934) The court in that case found it necessary to reconcile two federal laws, one granting federal recognition and pay to state-appointed National Guard officers, the other an appropriations rider denying federal pensions to militia officers who simultaneously accepted federal pay as a benefit of National Guard service. The New York officer in question received a federal pension for having been wounded while in Army service during the First World War. The appeals court's holding legitimized the state commission held by the officer, while yet denying him either his federal pension or his federal National Guard recognition and pay. The federal court did not mention the Second Amendment; the sole authority cited for the particular holding was a state case. People ex rel. Leo v. Hill, 27 N.E. 789 (N.Y. 1891). In Hill, it had been decided that federal law permitted state legislatures to authorize the governor to disband militia companies. Hill, 27 N.E. at 791. There are other state court opinions affirming the power of the states to provide administration to the militia in various ways. Some find the source of state power in federal statutes. See Commonwealth v. Thaxter, 11 Mass. (11 Tyng) 386, 391-392 (1814); Commonwealth v. Alien, 16 Mass. (16 Tyng) 523, 524 (1820) (affirming Thaxter); Joseph Adams, Petitioner for Cert., 21 Mass. (4 Pick.) 25, 28-29 (1826); Opinion of the Justices, 39 Mass. (22 Pick.) 571 (1838); Smith v. Wanser, 52 A. 309, 312 (NJ. App. 1902). See also Texas Nat. Guard Armory Board v. McCraw, 126 S.W. 627, 631, 640 (Tex. Sup. Ct. 1939). Other state decisions hold the power to be inherent in the states. See State ex rel. Lanng v. Long, 66 So. 377, 378 (La. Sup. Ct. 1914); State ex rel. Madigan v. Wagener, 77 N.W. 424 (Minn. Sup. Ct. 1898); People ex rel. Gillet v. DeLamater, 287 N.Y.S. 979, 984 (N.Y. App. Div. 1936). State v. Johnson, 202 N.W. 191, 192 (Wis. 1925), identified the Second Amendment as evidence for declaring the militia a state entity in a worker's compensation case, but State ex rel. Atwood v. Johnson, 175 N.W. 589, 597 (Wis. 1919), which also cited the Second Amendment, recognized the potential for federal preemption: "[I]n matters of concurrent jurisdiction between the federal government and the states the state has the right to legislate where such legislation is not in conflict with the act of Congress." 175 N.W. at 597.

[64]. 32 Stat. 775, ch. 196 (1903) (Dick Acts (Militia)) (National Defense Act 39 Stat. 166, ch. 134 (1916).

[65]. Perpich v. Dep't of Def., 496 U.S. 334, 346 (1990).

[66]. S.T. Ansell, Legal and Historical Aspects of the Militia, 26 Yale L.J., 471, 480 (1917). Ansell also cited Houston v. Moore as authority for the following: "Of course all state law upon the subject of militia organization, including age limits is in abeyance, since the National Defense Act so completely covers that field. Federal law alone governs. Id. at 475-76.

[67]. 496 U.S. 334(1990).

[68]. It should be noted, however, that the statutory construction of the National Guard system leaves the states responsible for some tort claims and certain administrative duties. See Maryland ex rel v. U.S., 381 U.S. 41 (1965). Guardsmen can in some instances retain limited state employment without federal recognition See infra note 109.

[69]. Perpich, 496 U.S. at 351-52. "The Montgomery Amendment was enacted as 522 of the National Defense Authorization Act for Fiscal Year 1987, Pub L [No ] 99-661, 522, [sic] 100 Stat. 3871." Id. at 337 n. 2.

[70]. Id. at 352. 32 U.S.C. Sec. 109 (c) reads:

In addition to its National Guard, if any, a State or Territory, Puerto Rico, the Virgin Islands, or the District of Columbia may, as provided by its laws', organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

32 U.S.C. 109(c) (2001).

[71]. Cf. Opinion of the Justices, 80 Mass. (14 Gray) 614 (1859), 619:

We do not intend, by the foregoing opinion, to exclude the existence of a power in the state to provide by law for arming and equipping other bodies of men, for special service of keeping guard, and making defence, under special exigencies, or otherwise, in any case not coming within the prohibition of that clause in the Constitution, art. I sec. 10, which witholds from the State the power to "keep troops"; but such bodies, however armed or organized, could not be deemed any part of "the Militia," as contemplated and understood in the Constitution and laws of Massachusetts and of the United States, and as we understand, in the question propounded for our consideration.

Id. at 619.

[72]. 496 U.S. 334-54. The cited Table's Case itself involved no question concerning the militia, but rather the power of a state court to issue a writ of habeas corpus in the case of an alleged minor who had enlisted in the regular army. The Supreme Court denied that a state court had power to issue such a writ. Tarble's Case, 80 U.S. (13 Wall.) 397(1871).

[73]. Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 177 (1803).

[74]. 53 U.S. (12 How.) 299 (1851).

[75]. Id. at 319.

[76]. 70 U.S. (3 Wall.) 713 (1865).

[77]. Id. at 730.

[78]. 79 U.S. (12 Wall) 457 (1870).

[79]. Id. at 555.

[80]. 93 U.S. 130 (1876).

[81]. Id. at 141-42 (emphasis added).

[82]. 254 U.S. 325 (1920).

[83]. Id. at 338.

[84]. 350 U.S. 497 (1956).

[85]. Id. at 509-10.

[86]. 273 U.S. 341 (1927).

[87]. Id. at 346.

[88]. 493 U.S. 455 (1990).

[89]. Id. at 459-59.

[90]. Id. at 470 (quoting Houston v. Moore, 5 Wheat. 1, 26 (1820)).

[91]. If anything, preemption of state militia regulation is actually more clear-cut than other legislative exercises of supremacy. Even the modest stipulation, "[w]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress," Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), rarely applies to militia controversies, since it refers to conflicting exercises of delegated federal and reserved state powers, and not to the simultaneous exercise of a single delegated power by both parties. Conflicts in organizing the militia fall into the last category, and thus outside the small area of deference described in Rice. An exception would be cases involving the appointment of officers. See infra note 109.

[92]. Where Houston v. Moore is cited for the proposition of concurrent power, it is usually with reference to sections of Justice Story's dissenting opinion (which the author appears to have partially repudiated in Prigg v. Pennsylvania) or it is with the caveat that any legislation passed by the states cannot be repugnant to that of Congress. For example, McPherson v. Blacker, 146 U.S. 1, 41 (1892), lately of such importance in the disputed presidential election, cited Houston for the proposition that, "The state law yields only to the extent of the collision," and Justice Taney in Thurlow v. Massachusetts, 46 U.S. 504 (1 How.), 584-85 (1847), noted, incorrectly as it happens,

Thus, in the case of Houston v. Moore, 18 U.S. (5 Wheat.) 1, it was held, that the grant of power to the federal government to provide for organizing, arming, and disciplining the militia did not preclude the States from legislating on the same subject, provided the law of the State was not repugnant to the law of Congress. And every State in the Union has continually legislated on the subject, and I am not aware that the validity of these laws has ever been disputed, unless they came in conflict with the law of Congress.

Id. (emphasis added). In fact the Court's opinion in Houston v. Moore denied the validity of such legislation. Not only was validity of state legislation brought into question in Houston, it had been questioned by John Marshall in Meade v. Deputy Marshal, 16 F. Cas. 1291 (C.C.D. Va. 1815) (No. 9,372); in Commonwealth v. Thaxter, 11 Mass. 386 (1814); in Opinion of the Justices, 39 Mass. 571 (1838); and other cases. See supra text accompanying note 63.

[93]. 22 U.S. (9 Wheat.) 1 (1824).

[94]. Houston, 18 U.S. (5 Wheat) at 16-24.

[95]. There were two attorneys for the respondent, representing Ogden and the State of New York respectively, and between them they cited Houston in eight places, at pages 33, 34, 35, 41, 44, 84, 86, and 130, of 22 U.S. 1 (1824), but the citation at page 35 was to three different opinions, and the citation at page 41 was to two, resulting in a total of eleven citations.

[96]. 17 U.S. (4 Wheat.) 122 (1819).

[97]. White, supra note 23, at 538.

[98]. Official Report of the Debates and Proceedings in the State Convention 2, at 71, 73, 75-76, 80 (Boston, White and Potter, 1853) [hereinafter Debates and Proceedings]. Hal Goldman, Black Citizenship and Military Self-Presentation in Antebellum Massachusetts, Historical Journal of Massachusetts vol. XXVI No. 2, Summer 1997, 170-77 [hereinafter Goldman, Black Citizenship].

[99]. See Debates and Proceedings, supra note 98, at 69, 89, 90-93; Goldman, Black Citizenship, supra note 98 at 175-76.

[100]. 1 Stat. 271, ch. 33 (1792). With certain exemptions, see for example, Opinion of the Justices, 39 Mass. 571 (1838).

[101]. U.S. Const. art. I, 8, cl. 15-16, see supra text accompanying note 3.

[102]. 60 U.S. (1 How.) 393 (1856).

[103]. Id. at 415-16, 420.

[104]. See F.W. Bird, Review of Gov. Banks' Veto of the Revised Code on Account of its Authorizing the Enrollment of Colored Citizens in the Militia, esp. 11, 45-47 (Boston, N.P.Jewett Co., 1860).

[105]. Id. at 1; Documents Printed by Order of the Senate of the Commonwealth of Massachusetts, Senate Document No. 71 and 148 (Boston, Wm. White, 1860).

[106]. Opinion of the Justices, 80 Mass. 614 (1859). There were six justices serving at the time.

[107]. Acts and Resolves Passed by the General Court of Massachusetts, 696-702 (Boston, Wm. White, 1860).

[108]. 80 Mass. 614, 619 (1859).

[109]. No longer on the basis of race, but certainly on the basis of age, profession, or many other restrictive factors which Congress might enumerate including gender. See Rostker v. Goldberg, 453 U.S. 57 (1981). Congress can exclude from militia enrollment all persons with occupations it deems critical to national interests; this conceivably includes anyone from air traffic controllers to short-order cooks. See Opinion of the Justices, 39 Mass. 571 (1839). Important questions have arisen as to the ability of the states to retain commissioned officers who have been disqualified from federal service, in light of the expressly reserved power to appoint officers. Some of these cases involve federal preemption of state militia law. But while the outcomes have varied somewhat with statutory interpretation, the constitutional supremacy of Congress in prescribing the organization, arming, discipline, and training of the militia has not been questioned. Nor has the Second Amendment figured at all in these considerations of state power to enroll militia. Most recently, the "Don't Ask, Don't Tell" policy has resulted in a gay California National Guard officer losing his federal status but retaining limited state status: Holmes v California National Guard, 124 F.3d 1126 (9th Cir. 1997), cert. denied, 525 U.S. 1067 (1999); Holmes v. California National Guard, 109 Cal. Rptr. 2d 154; 2001 Cal. App LEXIS 508 (Cal Ct. App. , First Dist. Div. 3, filed 29 June 2001). Cf. Tennessee v. Dunlap 426 U.S. 312, 48 L.Ed.660 (1976).

[110]. 80 Mass. 614, 619-20 (1859).

[111]. A statement found on the American Bar Association's website reads, "The United States Supreme Court and lower federal courts have consistently interpreted this Amendment only as a prohibition against Federal interference with State militia and not as a guarantee of an individual's right to keep or carry firearms." at The basis for the A.B.A.'s claim that the U.S. Supreme Court endorses the "states' right" interpretation of the amendment is almost certainly to be found in a disputed reading of U.S. v. Miller, see supra text accompanying note 10.

[112]. According to former Solicitor General Seth Waxman, this problematic interpretation might even be the preferred one. In a letter he wrote to a member of the National Rifle Association, dated 22 August 2000, later posted on the NRA's website, Waxman first identified the "right" as federal: "the 'obvious purpose' of the Second Amendment was to effectuate Congress's power to 'call forth the Militia to execute the Laws of the Union . . . ." (emphasis added). He then went on to offer an ambiguous explanation that contradicted the previous one: "[the] courts have uniformly held that it [the Second Amendment] precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized state militia." Finally, the Solicitor General alluded to, "the right of the states to maintain a militia that was being preserved..." (emphasis added), at [GunCite note: Waxman's letter is no longer at the aforementioned URL, but it can be viewed here -] . Thus, in three short paragraphs, the Department of Justice endorsed three contradictory interpretations of the amendment, none of which recognized a "right of the people" of any description. The Second Amendment debate is characterized by a puzzling tendency to question the validity of the "individual right" reading while failing to examine at all the validity of the "states' right" interpretation. Solicitor General Waxman's letter seems to have capitalized on this pattern by relying on the neglect of the reader to critically examine the positive, rather than negative, assertions being made.