[Cite as Hamilton v. Regents, 293 U.S. 245 (1934). NOTE: This decision concerns conscientious objections to federally mandated State military training in universities. Appellant argued compulsory service violates Fourteenth Amendment and refered to United States v. Cruikshank, 92 U.S. 542 which found the right to arms to be an individual right. (P. 247) In support of the State, the Court refered to the Second Amendment saying, "So long as [the state's] action is within retained powers and not inconsistent with any exertion of the authority of the national government, and trangresses no right safeguarded to the citizen by the Federal Constitution, the State is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. Second Amendment. ..." (P. 260 this page) Oddly, if this decision supports the proposition that the right is a state's right and not individual, it is a rather unusual definition of a "right" that must be "not inconsistent with any exertion of the authority of the national government" which government presumably the right is in opposition to. This interpretation is also at odds with numerous other decisions in which the Second Amendment is spoken of in the same terms as other rights which have never been considered anything other than individual. (See as early as Dred Scott 60 U.S. 393, 417, 450-451 (1857), and as late as Casey, 505 U.S. 833, 848-849 (1992).) The earliest mention of the Second Amendment similarly involved a state's power over militia--but spoke of the right to arms in terms that it "may not, perhaps, be thought to have any important bearing on this point." Houston, 18 U.S. (5 Wheat.) 1, 52-53 (1820).]
[Hamilton v. Regents continued
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[paragraph continued from previous page] to determine or in any manner to prescribe the military instruction in these institutions. The furnishing of officers, men and equipment conditioned upon the giving of courses and the imposing of discipline deemed appropriate, recommended or approved by the Department does not support the suggestion that the training is not exclusively prescribed and given under the authority of the State. The States are interested in the safety of the United States, the strength of its military forces and its readiness to defend them in war and against every attack of public enemies. Gilbert v. Minnesota, 254 U.S. 325, 328-9. State v. Holm, 139 Minn. 267, 273. Undoubtedly every. State has authority to train its able-bodied male citizens of suitable age appropriately to develop fitness, should any such duty be laid upon them, to serve in the United States army or in state militia (always liable to be called forth by federal authority to execute the laws of the Union, suppress insurrection or repel invasion, Constitution, Art. I, § 8, cls. 12, 15 and 16; Selective Draft Law Cases, 245 U.S. 366, 380-383; State v. Industrial Comm'n, 1925, 186 Wis. 1; 202 N.W. 191) or asmembers of local constabulary forces, or as officers needed effectively to police the State. And, when made possible by the national government, the State in order more effectively to teach and train its citizens for these and like purposes, may avail itself of the services of, officers and equipment belonging to the military establishment of the United States. So long as its action is within retained powers and not inconsistent with any exertion of the authority of the national government, and transgresses no right safeguarded to the citizen by the Federal Constitution, the State is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. Second Amendment. Houston v. Moore, 5 Wheat. 1, 16-17. Dunne v. (p.261)People, (1879) 94 Ill. 120, 129. 1 Kent's Commentaries 265, 389. Cf. Presser v. Illinois, 116 U.S. 252.
The clauses of the Fourteenth Amendment invoked by appellants declare: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law." Appellants' contentions are that the enforcement of the order prescribing instruction in military science and tactics abridges some privilege or immunity covered by the first clause and deprives of liberty safeguarded by the second. The "privileges and immunities" protected are only those that belong to citizens of the United States as distinguished from citizens of the States--those that arise from the Constitution and laws of the United States as contrasted with those that spring from other sources. Slaughter-House Cases, 16 Wall. 36, 72-74, 77-80. McPherson v. Blacker, 146 U.S. 1, 38. Duncan v. Missouri, 152 U.S. 377, 382. Twining v. New Jersey, 211 U.S. 78, 97. Maxwell v. Bugbee, 250 U.S. 525, 538. Prudential Ins. Co. v. Cheek, 259 U.S. 530, 539. appellants assert--unquestionably in good faith--that all war, preparation for war, and the training required by the university, are repugnant to the tenets and discipline of their church, to their religion and to their consciences. The "privilege" of attending the university as a student comes not from federal sources but is given by the State. It is not within the asserted protection. The only "immunity" claimed by these students is freedom from obligation to comply with the rule prescribing military training. But that "immunity" cannot be regarded as not within, or as distinguishable from, the "liberty" of which they claim to have been deprived by the enforcement of the regents' order. If the regents' order is not repugnant to the due process clause, then it does not violate the privileges and immunities [paragraph continues next page]
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