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[Cite as Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). NOTE: This decision concerns delinquent militia men, whether states possessed general authority over their own militia, if this was a new power or one that already existed in the states, and whether the constitution carved out of that a specific power in certain enumerated cases. (P. 54) In a seperate opinion, justice Story argued states retained the power to act in absense of federal action and referred to the Second Amendment, "The fifth [second] amendment to the constitution, declaring that 'a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed,' may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested." (P. 52-53) Thirteen years later Justice Story would write concerning the Second Amendment, "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." (Comm. on the Const. 646 (1833)) This passage would be cited approvingly by the Supreme Court in U.S. v. Miller, 307 U.S. 174, 182 n.3 (1939). Also interesting, Justice Johnson's seperate opinion seems to indicate it was possible the federal Bill of Rights could be enforceable against state infringement: "This Court can relieve him only upon the supposition that the State law under which he has been fined is inconsistent with some right secured to him, or secured to the United States, under the constitution. Now, the United States complain of nothing ..." (P. 33)]

[Houston v. Moore continued
Return to pages 1-31 (Majority opinion).
Return to pages 32-46 (Johnson opinion).
Currently at pages 47-51 (Story opinion).
Proceed to pages 52-53 (Story opinion cont.).
Proceed to pages 54-76 (Story opinion cont).]

[paragraph continued from previous page] under his own immediate orders, to draft and detach the numbers wanted. And thus every thing in the act becomes sensible, consistent, and adequate to the purposes in view, with the sole defect intended to have been remedied by the 1st section of the act of 1814.

In this case, it will be observed, that there is no point whatever decided, except that the fine was constitutionally imposed upon the plaintiff in error. The course of reasoning by which the judges have reached this conclusion are various, coinciding in but one thing, viz., that there is no error in the judgment of the State Court of Pennsylvania.

Mr. Justice Story. The only question which is cognizable by this Court upon this voluminous record, arises from a very short paragraph in the close of the bill of exceptions. It there appears that the plaintiff prayed the State Court of Common Pleas to instruct the jury, that the first, second, and third paragraphs of the 21st section of the statute of Pennsylvania of the 28th of March, 1814, "so far as they related to the militia called into the service of the United States, under the laws of Congress, and who failed to obey the orders of the President of the United States, are contrary to the Constitution of the United States and the laws of Congress made in pursuance thereof, and are, therefore, null and void." The Court instructed the jury that these paragraphs were not contrary to the constitution or laws of the United States, and were, therefore, not null and void. This opinion has been (p.48)affirmed by the highest State tribunal of Pennsylvania, and judgment has been there pronounced in pursuance of it in favour of the defendant. The cause stands before us upon a writ of error from this last judgment; and the naked question for us to decide is, whether the paragraphs alluded to are repugnant to the constitution or laws of the United States; if so, the judgment must be reversed; if otherwise, it ought to be affirmed.

Questions of this nature are always of great importance and delicacy. They involve interests of so much magnitude, and of such deep and permanent public concern, that they cannot but be approached with uncommon anxiety. The sovereignty of a State in the exercise of its legislation is not to be impaired, unless it be clear that it has transcended its legitimate authority; nor ought any power to be sought, much less to be adjudged, in favour of the United States, unless it be clearly within the reach of its constitutional charter. Sitting here, we are not at liberty to add one jot of power to the national government beyond what the people have granted by the constitution; and, on the other hand, we are bound to support that constitution as it stands, and to give a fair and rational scope to all the powers which it clearly contains.

The constitution containing a grant of powers in many instances similar to those already existing in the State governments, and some of these being of vital importance also to State authority and State legislation, it is not to be admitted that a mere grant of such powers in affirmative terms to Congress, does, (p.49)per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar powers existing in the States, unless where the constitution has expressly in terms given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, the prohibition of a State to coin money or emit bills of credit; of the third class, as this Court have already held, the power to establish an uniform rule of naturalization,[49.a] and the delegation of admiralty and maritime jurisdiction.[49.b] In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union being "the supreme law of the land," are of (p.50)paramount authority, and the State laws, so far, and so far only, as such incompatibility exists, must necessarily yield.

Such are the general principles by which my judgment is guided in every investigation on constitutional points. I do not know that they have ever been seriously doubted. They commend themselves by their intrinsic equity, and have been amply justified by the opinions of the great men under whose guidance the constitution was framed, as well as by the practice of the government of the Union. To desert them would be to deliver ourselves over to endless doubts and difficulties; and probably to hazard the existence of the constitution itself. With these principles in view, let the question now before the Court be examined.

The constitution declares, that Congress shall have power "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;" and "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

It is almost too plain for argument, that the power here given to Congress over the militia, is of a limited nature, and confined to the objects specified in these clauses; and that in all other respects, and for all other purposes, the militia are subject to the control and government of the State authorities. Nor can the reservation to the States of the appointment (p.51)of the officers and authority of the training the militia according to the discipline prescribed by Congress, be justly considered as weakening this conclusion. That reservation constitutes an exception merely from the power given to Congress "to provide for organizing, arming, and disciplining the militia;" and is a limitation upon the authority, which would otherwise have devolved upon it as to the appointment of officers. But the exception from a given power cannot, upon any fair reasoning, be considered as an enumeration of all the powers which belong to the States over the militia. What those powers are must depend upon their own constitutions; and what is not taken away by the Constitution of the United States, must be considered as retained by the States or the people. The exception then ascertains only that Congress have not, and that the States have, the power to appoint the officers of the militia, and to train them according to the discipline prescribed by Congress. Nor does it seem necessary to contend, that the power "to provide for organizing, arming, and disciplining the militia," is exclusively vested in Congress. It is merely an affirmative power, and if not in its own nature incompatible with the existence of a like power in the States, it may well leave a concurrent power in the latter. But when once Congress has carried this power into effect, its laws for the organization, arming, and discipline of the militia, are the supreme law of the land; and all interfering State regulations must necessarily be suspended in their operation. It would certainly seem reasonable, that in the absence [paragraph continues next page]

[Return to pages 1-31 (Majority opinion).
Return to pages 32-46 (Johnson opinion).
Currently at pages 47-51 (Story opinion).
Proceed to pages 52-53 (Story opinion cont.).
Proceed to pages 54-76 (Story opinion cont).]


[49.a] Chirac v. Chirac, 2 Wheat. 259, 269.

[49.b] Martin v. Hunter, 1 Wheat. 304, 337. And see The Federalist, No. 32.