The Perpich Case

In 1990, the Supreme Court ruled that the National Guard is controlled by the federal government and not an independent state militia.  It wasn’t a second amendment case – the governor of Minnesota was objecting to the Minnesota Guard being sent to Central America.

He lost at the Supreme Court –

“Held: Article I’s plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency. Pp. 496 U. S. 347-355.

(a) The unchallenged validity of the dual enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second Militia Clause is no longer applicable. Pp. 496 U. S. 347-349.

(b) This view of the constitutional issue was presupposed by the Selective Draft Law Cases, 245 U. S. 366, 245 U. S. 375, 245 U. S. 377, 245 U. S. 381-384, which held that the Militia Clauses do not constrain Congress’ Article I, § 8, powers to provide for the common defense, raise and support armies, make rules for the governance of the Armed Forces, and enact necessary and proper laws for such purposes, but in fact provide additional grants of power to Congress. Pp. 496 U. S. 349-351.

(c) This interpretation merely recognizes the supremacy of federal power in the military affairs area, and does not significantly affect either the State’s basic training responsibility or its ability to rely on its own Guard in state emergency situations. Pp. 496 U. S. 351-352.

(d) In light of the exclusivity of federal power over many aspects of military affairs, See Tarble’s Case, 13 Wall. 397, the powers allowed to the States by existing statutes are significant. Pp. 496 U. S. 353-354.

(e) Thus, the Montgomery Amendment is not inconsistent with the Militia Clauses. Since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid. Pp. 496 U. S. 354-355.

880 F.2d 11 (CA 8 1989), affirmed.

STEVENS, J., delivered the opinion for a unanimous Court.

The second amendment says “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.”

The Perpich decision, ruling that “During such periods, the second Militia Clause is no longer applicable” plays hob with the argument that the second amendment exists to arm the National Guard.  It doesn’t make any difference that the guard is “well regulated” if it isn’t a militia.  I’ve spent a lot of my life around college campuses, and heard that argument many times – but I never took the time to find Perpich and read it.  I kind of wish I’d had it on hand when my Dean pushed that National Guard argument on me – but research too late doesn’t change decisions.

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