As Allen admits, Rendell v. Rumsfeld turns on federal statutory construction, and not on constitutional limits. The conflict of powers in _Rendell_ is really between Congress and the Executive branch more than between state and federal governments. I.e., Congress by statute reserved certain powers to the state governors, which in this case conflicted with an order from the Secretary of Defense.
More generally, Allen erroneously relies on an artificial distinction between the federalized and pre-federalized militia. Congress holds the power to organize the militia, which includes the power to impose uniform enrollment standards, unit organization, technical standards, etc., regardless of whether the militia has been federalized. In order to arm citizens as militia, the states must be able to designate those citizens as militia. I maintain, on good evidence, that Congress can prevent the states from designating as *state* militia citizens who do not meet federal standards. E.g. If Idaho wants to enroll convicted violent felons, and California wants to enroll open homosexuals, and Florida wants to enroll quadruple amputees, Congress can prevent those states from doing so, because Congress has the power to create a uniform militia that serves the purpose of a unified national defense. That was one of the first purposes of the Philadelphia Convention. Congress does not currently dictate such standards. Rather, the National Guard has a conditional funding arrangement, and compliance is technically voluntary. It was not always so. In the antebellum period, Massachusetts debated enrolling African American men in the *state* militia. The consensus shared by a state constitutional convention, three attorneys general, and the unanimous Supreme Judicial Court, was that Massachusetts could not list in its state militia rolls persons disqualified under federal law (fed law limited enrollment to whites). They agreed that Massachusetts might charter African American ceremonial units, but could not designate them as "militia", or arm them with federally-supplied arms, without violating federal law. I have a suggestion for Allen, since he is in California. Under a 2001 state decision, California is required under its own antidiscrimination laws to allow open homosexuals to remain in the state guard after losing their federal National Guard status, even if it results in the loss of all federal funding to the state guard. Why not take advantage of that decision to raise a test case? Find multiple plaintiffs who are protected under California state antidiscrimination law but who are federally disqualified from the Army National Guard. Threaten to pack the state guard with open homosexuals, physically and mentally handicapped persons, etc., all of whom are protected under state law but would have to be sifted out by the DoD when their units are federalized. Under federal law, the President has statutory authority to withhold funding from the state guard if it does not comply with federal standards. When the President withholds, or threatens to withhold funding from the Cal NG for being out of compliance with federal standards, the ACLU can sue the DoD under the "unconstitutional conditions" doctrine, arguing that withholding federal funding of the state's arming of open homosexuals and other disqualified persons chills the exercise of the states' constitutional right to arm its citizens under the 2nd Amendment. I predict that the federal courts would not allow the states to create 50 different militia according to their own standards. To decide otherwise would undo one of the primary goals of the Philadelphia Convention. If I am correct that the Constitution allows Congress to exclude classes of citizens from the militia, and to prevent the state from designating those citizens *as militia*, then the 2nd Am does not protect from Congress the power of the states to arm their citizens as militia. Norman Heath _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
