Mr. Allan C. Story for plaintiff in error, argued the following Federal points.-I. The Illinois act is in conflict with Article I., section 8, subdivisions 12, 14, 15, 16 and 18 of the Constitution of the United States. Houston v. Moore, 5 Wheat. 1, 51, 68; Gibbons v. Ogden, 9 Wheat. 1, 209; Passenger Cases, 7 How. 283; Railroad Co. v. Husen, 95 U.S. 465; McCullough v. Maryland, 4 Wheat. 315; Sturges v. Crowninshield, 4 Wheat. 122; Opinions of Justices, 14 Gray, 614; United States v. Cruikshank, 92 U.S. 542; Martin v. Mott, 12 Wheat. 19. -II. It is also in conflict with Article 1, section 18, Subdivision 3 of the Constitution. Luther v. Borden, 7 How. 1; Texas v. White, 7 Wall. 700; Green v. Biddle, 8 Wheat. 1; Poole v. Fleeder 11 Pet. 185; and cases cited above. - III. It is also in conflict with Article II. of the Amendments to the Constitution. See cases cited under Point I.-IV. It is also in conflict with Amendment XIV. to the Constitution. Slaughter- House Cases, 16 Wall. 36, 74; Ward v. Maryland 12 Wall. 418, 430; Crandall v. Nevada, 6 Wall. 35,49; Dred Scott v. Sanford, 19 How. 393, 580; United States v. Cruikshank, cited above. -V. It is also in conflict with Article I., section 9, subdivision 3 of the Constitution. Fletcher v. Peck, 6 Cranch, 87; Cummings v. Missouri, 4 Wall. 277; Lapeyre v. United States, 17 Wall. 191, 206; Carpenter v. Pennsylvania, 17 How. 456; Ex parte Garland, 4 Wall. 333.
Mr. Lyman Trumbull also filed a supplemental brief for plaintiff in error, contending as follows:
I. The power of organizing, arming and disciplining the militia being confided by the Constitution to Congress, when Congress acts upon the subject and passes a law to carry into effect the constitutional provision, such action excludes the power of legislation by the State on the same subject. This is manifest, not only from the grant of power to Congress to organize, arm and discipline the militia, but from the restriction which the Constitution puts upon the States, limiting them simply to the appointment of the officers, and to the authority to train the militia as Congress shall prescribe. The power of each government in regard to the militia is distinctly stated in the Constitution itself. As well might the Federal government arrogate to itself the appointment of the officers of the militia as for the States to assume to organize and arm them in a different mode from that prescribed by Congress. Congress has exercised its functions, and covered, so far as it deemed expedient, the ground assigned to it by the Constitution, by providing for organizing, arming and disciplining the militia. See Houston v. Moore, 5 Wheat. 1, especially the language of the court on page 24. Counsel on the other side contend this case was overruled in Sturges v. Crowninshield, 4 Wheat. 122. That is a remarkable statement, as Sturges v. Crowninshield, was decided a year before Houston v. Moore. Moreover there is nothing in the former in conflict with the latter. The Military Code of Illinois differs from the act of Congress not only in details, but in its whole scope and object. Congress aims to arm, organize and discipline all able-bodied male citizens of the specified age. Illinois aims to prevent such arming, organizing and disciplining. Only 8000 are allowed to associate together and drill, and even those are not enrolled and organized as required by Congress.
II. The provisions for organizing, arming and disciplining the Illinois National Guard are in conflict with that clause of the Constitution which declares that no State shall, without the consent of Congress keep troops in time of peace. Congress has never given its assent to that organization, and it is apparent that the guard are "troops" within the sense of the Constitution. The militia acts of Congress only excepted from their operation certain military organizations then existing, of which the Illinois National Guard was not one. It consists of 8000 men, raised for five years, formed into companies and regiments, with staff officers different in number and rank from those provided for by Congress; is divided into infantry, cavalry and artillery; is required to drill often, to practise at target shooting and rifle practice, and is required to conform to the laws of the United States organizing the militia only in matters not provided for in the act. If these provisions do not constitute the Illinois National Guard "troops," the keeping of which in time of peace by the State is prohibited by the Constitution of the United States, I am at a loss to conceive what kind of troops it is that a State may not keep.
III. The provision of the State statute which prohibits other organizations than that of the "Illinois National Guard," from associating together as military companies, or to parade with arms without the license of the governor, is in conflict with the act of Congress for the organization, &c., of the militia, and also violates Articles II. and XIV. of the Amendments to the Constitution. It may be admitted that Article II., securing to the people the right to keep and bear arms, by itself is a prohibition against the power of Congress, and not of the States, to interfere with that right, except when the keeping and bearing of arms is connected with some national purpose. When it is so connected, no State can pass any law abridging the right without a violation of the Second and Fourteenth Amendments.
The Fourteenth Amendment makes all persons born or naturalized in the United States, citizens of the United States, and of the State wherein they reside, and then declares that no State shall make any law which shall abridge the privileges and immunities of citizens of the United States. The citizen of the United States has secured to him the right to keep and bear arms as part of the militia which Congress has the right to organize, and arm, and to drill in companies. This is a national right which the national government has the power and which it is its duty to enforce.
This right of the people to keep and bear arms for the purpose of forming a well regulated militia, like "the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances or for anything else connected with the powers or the duties of the national government, is an attribute of national citizenship, and as such, under the protection of, and guaranteed by the United States." United States v. Cruikshank, 92 U. S. 542, 552.
Whether a State may not prohibit its citizens from keeping or bearing arms for other than militia purposes is a question which need not be considered, as the Illinois statute is aimed against the organizing, arming and drilling of bodies of men as militia, except they belong to the Illinois National Guard of eight thousand.
It is contended that the Illinois act does not conflict with the act of Congress until the militia is actually mustered into the service of the United States. This is a mistaken view of the Constitution and of the object and intent of the law of 1792. The power of Congress to organize the militia is not limited to a period of war, or to such time as they may be employed in the service of the United States. It is only the power to govern them that is thus limited. The clause in the Constitution authorizing the President to call out the militia and put it into the service of the United States is separate and distinct from that which authorizes Congress to legislate for its organization, arming, and discipline. The manifest intent of the Constitution is to provide for an organized militia in time of peace, which may be called upon to execute the laws of the Union, and thus dispense with a standing army.
The acts of 1792 and 1795, authorizing the President to use military force to enforce the laws of the Union, suppress insurrections, and repel invasions, limited him to the use of the militia for such purposes. It was not until 1807 that he had authority to employ, the land and naval forces of the United States therefor. Act of March 3, 1807, 2 Stat. 443.
The militia acts make definite provisions as to the persons to serve in the militia, the officers of that body, the times of parade and service, the returns to be made to the President, &c. It is absurd to suppose that these have no force till the militia is mustered into the service of the Union. State laws making other provisions are in conflict with it as much before as after such muster.
If it were admitted that State laws for organizing the militia are valid, except in so far as they conflict with the execution and operation of national laws on the same subject, the admission does not help the defendant in error, because it is insisted, and, as I think, shown, that the whole spirit, intent and effect of the Illinois statute is in conflict with the provisions of the act of Congress. If a State law is incompatible with the Constitution of the United States, or any law of Congress in pursuance thereof it is invalid, whether the conflict arise in the execution and operation of the act of Congress, or in an attempt to put the State law in operation. It is enough if the State law, when sought to be put into execution and operation, conflicts with the national law on the same subject. It may be that a State law in partial execution of the military act of Congress. and conforming to its provisions, would be valid to that extent, upon the principle that power to organize all the Militia implies the power to organize a part; but this principle can have no application to the Military Code of Illinois, for the reason that the organization of the Illinois National Guard, provided for by that code, does not, as has been already shown, conform to the act of Congress. It does not constitute any part of the militia upon which the President may call to enforce the laws of the United States, when resisted by combinations too powerful to be overcome by the ordinary course of judicial proceedings. Act of February 28, 1795, 1 Stat. 424; Rev. Stat. sections 5298, 5299. It is purely a State force, sworn to serve the State in its military service, subject at all times to the orders of the governor, prohibited from leaving the State with- out his consent under a penalty, and so far from being part of the militia organized in pursuance of the act of Congress, the Illinois National Guard, in its organization, arming, and the purpose for which it is organized, contravenes the spirit and intent of the national act, and if permitted to stand, it prevents the organizing, arming and disciplining all the male citizens of the State, as Congress has prescribed.
Mr. George Hunt, Attorney-General of Illinois, for defendant in error.
United States v. Cruikshank Et Al
Presser v Illinois