Citation

Heath JN. J. Firearms Public Policy 2002; 14.

Copyright

(Copyright © 2002, Second Amendment Foundation)

DOI

unavailable

PMID

unavailable

Abstract

Opponents of the individual rights view of the Second Amendment often argue that the Amendment only protects state government powers over state militias. This article examines the case law and other legal history involving federal/state conflicts over control of state militias. In this conflict, one would expect the Second Amendment to have always played an important role—if, indeed, the Amendment were meant to constrain federal powers over the militia. In fact, the Second Amendment has played essentially no role in American militia-control jurisprudence. Federal preemption of state militia powers is one of the most well-established propositions of constitutional law. Examining the development of this preemption, beginning with the seminal case of Houston v. Moore, illustrates the unremitting assertion of federal supremacy, as well as the fictitious nature of the "states' right" theory of the Second Amendment This article was originally published in the Fall 2001 issue of the University of Detroit Mercy Law Review, volume 79, pages 39-73.