Don Williams wrote: > > I would argue ,however, that Congress overstepped it's constitutional power > when it presumed to define and limit the militia in the Dick Act. >
Congress was delegated power to organize the militia specifically so that it would be both uniform and arranged suitably for national defense, as opposed to 13 or 50 different organizations giving different form to rank, units, training, arms, etc. I believe Mason first proposed the delegation of militia powers on precisely these grounds, and Madison quickly seconded. This point is not peripheral to the Second Amendment debate but central. If the "right" in question can only be exercised by persons having state recognition (Collective/States' Right Model), then under the Second Amendment the state must be able to convey that status free from interference by Congress. The alternate interpretation (Standard Model) would be that the "right" is not conditional on state sponsorship. But the states don't have the authority to enroll militia in contravention of a preemptive federal law, for the reasons stated above. This is not a hypothetical. There was a good deal of support in Massachusetts from 1853-1860 for enrolling black militia, or chartering privately formed black militia companies. The almost unanimous conclusion in 1853, reluctantly drawn even by sympathetic politicians, was that doing so would impermissibly contravene federal law. There exists about 4 hours of floor debate from the state constitutional convention of 1853 on this subject, a state AG's opinion from 1855, another state AG's opinion from 1859, a unanimous advisory opinion of the Supreme Judicial Court in 1860, and two lengthy veto messages from the governor in 1860. The vetoes came about because the legislature went ahead and tried twice to enroll black militia despite the probably unconstitutionality of it according to the legal understanding of the day. The first time may have been in response to the hanging of John Brown. The second try was probably just to embarrass the governor on the eve of the 1860 Republican convention, and it worked: Lincoln, and not Nathaniel Banks, got the nomination. The "Don't Ask Don't Tell" National Guard cases, to my knowledge, have been resolved on statutory and not constitutional grounds. A California court, for example, decided that Congress made the National Guard system funding-conditional but not mandatory on the states. But Congress almost surely could impose the criteria on the states. Otherwise we'd have 50 different Guards, each state with different age or height requirements, etc.
