Constitutional Conundrum?

If the 2nd Amendment's sole action is to bar the door to federal interference with a states militia then the judicial record must be replete with instances of states citing the 2nd as defeating federal demands of preemption and supremacy over their militia.

When one actually looks the record for such evidence it is a barren wasteland. All those decisions holding the federal preemption over state militia law as constitutional were settled without any mention of the 2nd Amendment.

What can we make of Tot's prototypical directive 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," if NOTHING exists in the judicial record demonstrating this theory in action?

It seems obvious to me that anyone supporting the validity of these lower federal court decisions to dismiss the individual right argument should be able to demonstrate the breadth of authority the states retain over their militia under existing SCOTUS jurisprudence and the means, express or implied, by which state power has been preserved by claiming 2nd Amendment protection.

So I ask again; can the "state's right" interpretation be completely ignored and dismissed in actual action in one court but be accepted as precedent (as only a theoretical concept) down the hall?

Houston v. Moore, 18 U.S. (5 Wheat.) (1820).
Martin v. Mott, 25 U.S. (12 Wheat.) (1827).
Selective Draft Law Cases, 245 U.S. 366 (1917)
Perpich v. Dep't of Defense, 496 U.S. (1990).

If the 2nd Amendment's sole action is to bar the door to federal interference with a states militia then the judicial record must be replete with instances of states citing the 2nd as defeating federal demands of preemption and supremacy over their militia.

Why do you think that? If the federal government wasn't interfering with state militias, then there wouldn't be any reason for the states to raise the constitutional issue in court.

"All those decisions?" What are they? Name three.

Presumably you're referring to United States v. Tot, correct? As for the rest of your paragraph, I don't understand what you mean.

I think what you might be trying to say is that, if the rationale in Tot were correct, we should expect to see lots of other cases advancing the same rationale. Is that right?

Houston v. Moore, 18 U.S. (5 Wheat.) (1820).
Martin v. Mott, 25 U.S. (12 Wheat.) (1827).
Selective Draft Law Cases, 245 U.S. 366 (1917)
Perpich v. Dep't of Defense, 496 U.S. (1990).

joefromchicago wrote:

These aren't second amendment cases. What's your point?

Follow me now?

If not, here's a law review journal article HERE

But there have been many situations of the feds claiming primary control and the feds have always won out.

The examination of the Constitution in these cases has only been focused on the Art I §8 militia powers, never the 2nd Amendment.

Still, you're reading it incorrectly. The only way for there to be a militia, if one was needed, is to allow for individuals to keep and bear arms.

That assumes, however, that the second amendment and the militia clause are, in some sense, incompatible.

In other words, Heath argues that federal oversight of state militias cannot be reconciled with the right guaranteed by the second amendment. But I don't see that.

Or, to put it another way, congress can't have unrestricted power under the militia clause while simultaneously having no power to infringe upon the collective right to keep and bear arms as it relates to the maintenance of a well-regulated militia.

Heath, therefore, concludes that the second amendment cannot be interpreted as protecting a collective right at all, but rather an individual right unconnected with the state's interest in maintaining a militia.

But that argument, it seems to me, misunderstands a basic tenet of legislative and constitutional interpretation: i.e. that a later enactment takes precedence over an earlier one. If there truly is a contradiction between the militia clause and the second amendment (and I don't necessarily think there is), the second amendment controls because it was enacted later than the militia clause. Thus, if the militia clause granted congress the power to infringe on the collective right to keep and bear arms, the second amendment took that power away.

Now, Heath would probably argue that the supreme court's interpretation of the militia clause, carried to its logical conclusion, leaves nothing to protect under the second amendment. I don't agree.

Clearly, the militia clause allows the federal government a great deal of control over state militias, but the one thing that congress cannot do is infringe upon the right of the citizens to keep and bear arms as it relates to the maintenance of a well-regulated militia.

Well, I suppose it means that congress can't disarm a state militia, . . .

Big deal, so I join a mililtia. The fact that I purchase multiple hunting licenses every year, whose fees cover things such as conservation, wildlife management, and conservation officers, likely qualifies.

This is false. In Presser versus the State of Illinois (1886), the court held . . .

The point about "a well regulated militia" is that the militia can be regulated

No, his conclusion finds that they are perfectly compatible because the focus is on two different entities. Section 8 powers deal only with the state's organized militia and "such Part of them as may be employed in the Service of the United States." Remember, the issue at hand in these cases was the actual control of the organized militia and its members. My and Heath's position is that the federal Constitutional powers over those forces do not conflict at all with the rights of the ordinary citizen. Nothing in Section 8 remotely speaks to the private arms of the citizen, in fact, private citizens are explicitly excluded (by the inclusion of, "and for governing such part of them as may be employed in the service of the United States")

How does Congress exert any legitimate powers over the arms of the private citizen? Oh that's right, . . . the Commerce clause. LOL

No, that's a bit backward. It's only the theory that the 2nd protects the state from federal interference that is at odds . . . An individual rights model of the 2nd allows the powers over the organized militia (state and federal as explained in the judicial record) and the 2nd Amendment protecting the rights of private citizens to each stand alone (but complementary). The individual right model is the only position that allows all these different powers to merge without conflict!

Well, you are attaching quite a bit of luggage to Tot's train of thought and just who might be the protected entity fell off along the way. The prototypical explanations of the theory in Tot and those that follow are quite simple and do not add all those qualifiers . . . Tot assigns a particular action to the 2nd with a specific protected party and that argument is what is being challenged.

Just to remind:

"It is abundantly clear . . . that this 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."

Such a conclusion was without basis (on multiple levels) when this opinion was written but it was used (and is still used) to dismiss and extinguish individual rights claims.

The "collective" right belongs to who? Who is the protected party, who would be granted standing to bring a claim of injury to SCOTUS?

Your side has become so comfortable using these shapeshifting qualifiers that their use flows without any critical examination of what they mean . . . Anyone who has reviewed the writings of the founders and the works they embraced know that having an armed citizenry available to come together to defend liberty and the nation was a core principle of what a legitimate government is. In reality this "right" of government (federal and state) you speak of, to form a militia is not a "right" or a power, it just is an inherent component of the government formed by this Constitution; it is part of that promise to the states and people to forever provide a republican form of government. See Presser.

So who is the protected party of this "collective" right?

ONE WOULD THINK, if the 2nd only speaks to the state as the protected party! However you characterize Heath's argument as it relates to the, "basic tenet[s] of legislative and constitutional interpretation," your last sentence has returned to arguing a position resoundingly defeated in the judicial record.

Uhhh, no . . . There's plenty to protect.

Congress can disband and disarm a state's militia! That's what has happened through these court decisions; state militias do not exist anymore and they ceased to exist in 1918 with the decision in The Selective Draft Law Cases, well before Tot was briefed, argued and decided.

Heath most assuredly thinks that there is a fundamental incompatibility between the militia clause and the second amendment. As he states:

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.

In other words, Heath contends that the second amendment is meaningless if the militia clause allows congress to preempt the entire field of military affairs.

The only problem for this argument is that congress, quite clearly, cannot preempt the entire field of military affairs. As the supreme court noted in Perpich v. Department of Defense (and which Heath actually quotes):

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

Consequently, although congress has wide powers in connection with state militias, the one thing that it is constitutionally prohibited from doing is abolishing the militias.

Once this salient fact is recognized (and it is astonishing that Heath missed it entirely), it is easy to reconcile the militia clause and the second amendment. Contrary to Heath, states are not "powerless to authorize" the military activity upon which the right guaranteed by the second amendment is contingent, because congress does not have the power to eliminate the militia. No matter how pervasive congress's regulation of the militia might be, therefore, there will always be something left over for the second amendment to protect.

You find the commerce clause funny?