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I noticed an opinion out of the federal Eastern District of Pennsylvania on
Friday that may help elucidate a point I unsuccessfully tried to make to this
list back in November 2002. Back in 2002, I was attempting to explain what
I believe is a flaw in Norman Heath's analysis of the Supreme Court's
militia cases in the article "Exposing the Second Amendment: Federal
Preemption of State Militia Legislation" (at http://www.guncite.com/journals/heath.html).
The flaw in that analysis is assuming that federal preemption of state power
over the federalized militias means states retain no
constitutionally protected power over the unfederalized
militias.
The case out of the federal Eastern District of Pennsylvania, Rendell,
et al v. Rumsfeld (in PDF format at http://www.paed.uscourts.gov/documents/opinions/05D1062P.pdf),
upholds the retained right of the states to control the unfederalized state
militias, albeit based on federal statutes rather than the US Constitution,
striking down the federal government's deactivation of state militia units
without the governor's consent. While this state power is protected by federal
statute, the opinion points out within the legislative history of the
relevant statutes a primary purpose of "reserving to the States
their right to control the National Guard or the Organized Militia absolutely
under the militia clause of the Constitution in time of
peace." Interestingly, according to footnote 5 of the opinion, the
original complaint in the case alleged the federal action violated the Militia
Clause of the US Constitution, but that allegation was later dropped.
I'm appending to this email for reference my old argument from
November 2002 that I'm hoping this new case elucidates.
Allen Asch
OLD ARGUMENT APPENDED FOR REFERENCE:
Subj: Re: ACLU
Date: 11/16/2002
In a message dated 11/15/2002 6:45:40 PM
Pacific Standard Time, [EMAIL PROTECTED] writes:
The ACLU posits a right existing in the "collective population of each state for the purpose of maintaining an effective state militia." Certainly this is a subject which Allen and the ACLU staff must have thoroughly researched before outlining a position. After all, it would be unreasonable of anybody to posit the existence of such a novel right without having uncovered some evidence of its existence other than in vague and mutually contradictory dicta gun possession decisions involving no question of militia law, or in pure historical speculation untethered to any actual law. Not really a fair test given that no law of which I'm aware has ever been (permanently) struck down under any interpretation of the Second Amendment. Could you please provide citations to judicial decisions in which any law whatsoever has been (permanently) struck down as an unconstitutional violation of the Second Amendment however interpreted? Beyond that (hopefully not too flippant) response, I agree with your point that a good interpretation of the Second Amendment must not only define what it doesn't protect, but what it does protect (as fleshed out in the article "Exposing the Second Amendment: Federal Preemption of State Militia Legislation" at http://www.guncite.com/journals/heath.html). Before getting to what the Second Amendment protects under the ACLU interpretation, however, I'd like to point out a flaw in the article "Exposing the Second Amendment: Federal Preemption of State Militia Legislation," particularly in its explication of Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820) (available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=18&page=1). The problem with this explication in the article "Exposing the Second Amendment: Federal Preemption of State Militia Legislation," begins with the statement of the holding in the first paragraph: "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." A more accurate statement of that holding would be: Congress, exercising its legislative powers under the Militia Clauses of the federal constitution, had preempted the power of the state legislatures to regulate the federalized militia. Or, to quote the Court: "[A]fter a detachment of the militia have been called forth, and have entered into the service of the United States, the authority of the general government over such detachment is exclusive." Houston v. Moore, supra, at 17. [emphasis added]. Prior to federalization, however, state and federal jurisdiction over the militia is concurrent as outlined in Article I, Section 8, Clauses 15 and 16. Id. Understanding the retained power of the states over the unfederalized state militias helps make clear what the Second Amendment protects under the ACLU interpretation. Even so, it's not particularly easy because the militias no longer exist in the form envisioned by the Framers of the US Constitution. ACLU Policy #47 responds to this change by giving an expansive reading to the word "militia" in the Second Amendment, letting it include all individuals executing the lawful military and police powers of the state. The ACLU policy does say that the possession of weapons by individuals is constitutionally protected for lawful police and military purposes. It is the collective population of each state, through the state legislatures, that determines what are these lawful police and military purposes. Thus, under the ACLU interpretation, the Second Amendment protects the right of the collective population of each state to determine the means necessary to execute state police and military powers and protects the right of individuals to possess weapons to execute those lawful police and military powers. The Supreme Court even recognized this meaning in Hamilton v. Regents, 293 U.S. 245, 250 (1934) citing the Second Amendment and stating "the state is the sole judge of the means to be employed ... for the effective accomplishment of these ends." (available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=293&page=245) The article "Exposing the Second Amendment: Federal Preemption of State Militia Legislation," unfairly terms this citation "obscure," even though it contradicts your assertion above that "In two centuries of adressing [sic] this subject neither the courts nor any other authorities have recognized the Second Amendment as relevant to ... a state right, collective or otherwise." Allen |
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