Did The Second Amendment Return Power To The States?

Did The Second Amendment Return Power To The States?

This is one of the claims that gets made by those who insist that it does not protect an individual right. They claim that it was to provide some protection to the states to maintain state militias. Houston v. Moore (1820) involved a question of federal vs. state control of the militia--and as my friend J. Norman Heath, "Exposing the Second Amendment: Federal Preemption of State Militia Legislation,” 79 U. Det. Mercy L. Rev .39 (2001), demonstrates, there is simply no evidence that anyone at the time recognized that the Second Amendment changed the existing relationships contained in Art. I, sec. 8.

Houston v. Moore (1820) involved a Pennsylvania militiaman who was court-martialed under state law for failure to march when his unit was called into federal service. He challenged the authority of Pennsylvania to punish him for what he characterized as a violation of federal law. Throughout Justice Bushrod Washington’s decision, there are discussions of what power the Constitution grants to the federal government and the States with respect to the militia. Art. I, sec. 8 is repeatedly referenced—but not a word about the Second Amendment’s supposed protection of State authority or control over its militia.[1] It appears that neither side argued that the Second Amendment changed the relationships of Art. I, sec. 8.

Justice Johnson’s concurring opinion also refers to Art. I, sec. 8, and shows that the Second Amendment changed nothing.

The power of Congress over the militia is limited but by two reservations in favour of the States, viz. the right of officering and that of training them.[2]

Justice Story’s dissent is about the question of concurrent authority. He does argue that the Constitution’s grant of authority to Congress over the militia does not preclude authority remaining with the States, unless the laws of each are contradictory.[3] Story does quote the Second Amendment (although he mislabels it the “fifth amendment”), but makes a point of observing that,

The militia of several States may, at the same time, be called out for the public defence; and to suppose each State could have an authority to govern its own militia in such cases, even subordinate to the regulations of Congress, seems utterly inconsistent with that unity of command and action, on which the success of all military operations must essentially depend.[4]

And

It is conceded all on all sides, and is indeed, beyond all reasonable doubt, that all state laws on this subject are subordinate to those constitutionally enacted by Congress, and that if there by any conflict or repugnancy between them, the State laws to that effect are inoperative and void.[5]

Even the Second Amendment, which Story admits “may not, perhaps, be thought to have any important bearing on this point”[6] does not grant the States any more authority over their militias than Art. I, sec. 8.

[1] Houston v. Moore, 18 U.S. 1, 4, 5 (1820). See J. Norman Heath, "Exposing the Second Amendment: Federal Preemption of State Militia Legislation,” 79 U. Det. Mercy L. Rev .39 (2001), http://www.guncite.com/journals/heath.html, last accessed October 31, 2007, which provides a detailed treatment of these issues.

[2] Houston v. Moore, 18 U.S. 1, 36 (1820).

[3] Houston v. Moore, 18 U.S. 1, 48, 49, 50, 51, 52, 53 (1820).

[4] Houston v. Moore, 18 U.S. 1, 53 (1820).

[5] Houston v. Moore, 18 U.S. 1, 56 (1820).

[6] Houston v. Moore, 18 U.S. 1, 52, 53 (1820).

Here's a bit more evidence, and closer in time to the Second Amendment's adoption by Congress. American State Papers: Military Affairs, 1:8, contains George Washington's "Organization of the Militia" "Communicated to the Senate, on the 21st of January, 1790"--or several months after Congress passed the Second Amendment, and sent out to the states for ratification. It clearly establishes that the Second Amendment didn't change the relationships in the original Constitution.

And sixthly, That, agreeably to the constitution, the United States are to provide for organizing, arming, and discipling the militia, and for governing such part of them as many be employed in the service of the United States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress.

This is exactly what Art. I, sec. 8 provides, and as is described in Houston v. Moore (1820). If the Second Amendment returned some authority or power to the states over their militias, or in some protected the state militias from federal government interference, no one seems to have told President Washington. This would seem a pretty damning piece of evidence for demolishing DC's claim in the current suit about what the Second Amendment did.