Related Citations
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Jason Mazzone, Federalism Unwritten, 2013 U. Ill. L. Rev. 1871 (2013).
Recounting the pre-Revolutionary War history of the American militia and the debates surrounding the adoption of the Militia Clauses to gain insights into the constitutional scope of federal authority.
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Robert J. Spitzer, Gun Law, Policy, and Politics, 84 N.Y. St. B.J. 35 (2012).
Arguing that the Framers intended militias to be used to suppress revolution or insurrection.
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Alfred W. Blumrosen & Steven M. Blumrosen, Restoring the Congressional Duty to Declare War, 63 Rutgers L. Rev. 407 (2011).
Recounting the debates at the Constitutional Convention about federal regulation of state militias and documenting the Militia Clauses’ drafting history.
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Michael P. Zuckert, Legality and Legitimacy in Dred Scott: The Crisis of the Incomplete Constitution, 82 Chi.-Kent L. Rev. 291 (2007).
Arguing that the Framers did not insert the Insurrection Clause into the Constitution for the sole cause of protecting slavery but that the protection of slavery was one of the Clause’s anticipated effects.
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David Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477 (2008).
Arguing that the Framers’ concerns about military mutiny and the abuse of military power by a civilian leader led them to separate the war powers between the Executive and the Legislature.
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Brian C. Brook, Federalizing the First Responders to Acts of Terrorism via the Militia Clauses, 54 Duke L.J. 999 (2005).
Providing a brief history of the ratification of the Militia Clauses and the historical practices of the early constitutional militia.
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Robert J. Delahunty, Structuralism and the War Powers: The Army, Navy and Militia Clauses, 19 Ga. St. U. L. Rev. 1021 (2003).
Arguing that the Framer’s structural choice to place the Militia Clauses under Article I both augments and constrains the President’s military power.
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David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588 (2000).
Presenting the roles of the army and the militia in the Founders’ political theory, reviewing the debates surrounding the drafting and ratification of the Militia Clauses, and concluding that the Founders believed that relying on a combination of an army and the militia was the most desirable arrangement to protect liberty.
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Sam Ruby, “Don’t Ask, Don’t Tell” and the National Guard: Federal Policies on Homosexuality in the Military vs. the Militia Clauses of the Constitution, 85 Calif. L. Rev. 955 (1997).
Documenting the pre- and post-ratification debates surrounding the Militia Clauses.
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David I. Lewittes, Constitutional Separation of War Powers: Protecting Public and Private Liberty, 157 Brook. L. Rev. 1083 (1992).
Arguing that the Framers’ intent in dividing power over the militia between the federal and state governments was to protect the nation while simultaneously preserving the states’ liberties.
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Monte M.F. Cooper, Perpich v. Department of Defense: Federalism Values And The Militia Clause, 62 U. Colo. L. Rev. 637 (1991).
Offering originalist arguments against the Supreme Court’s ruling in Perpich v. Department of Defense, which limited the rights of the states to decide how their “militias” should be trained.
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Alan Hirsch, The Militia Clauses of the Constitution and the National Guard, 56 U. Cin. L. Rev. 919 (1988).
Analyzing the Framers’ debate over control of the militia and the historical development of the militia in order to resolve several important constitutional issues that arise from the modern-day National Guard’s hybrid state-federal status.