Safe Storage: How Far Could Congress’ Militia Powers Go?

I just had a thought, in thinking about safe storage laws. It’s pretty clear that safe storage laws that impede the right to self-defense would not be constitutional. But could Congress use its militia powers to demand everyone have a safe, and store their firearms in the safe when, say, you aren’t home?

One could argue that it’s necessary and proper to protect the nation’s arsenal of militia-ready weapons. If Congress can use the militia power to demand people keep arms, and show up to muster, why couldn’t it demand people buy a safe and keep their guns in them when they are not home?

I should note that I’m not advocating Congress do this, but it’s hard for me to see a way to defeat such a proposal on constitutional grounds. The only thing that would make such a requirement impractical for the purposes our opponents may want is the actual enforcement is left to the states, who don’t have any mechanisms to enforce this. I think you also may be able to argue that such an exercise of militia powers is a sham, and this either necessary or proper.

Does anyone who knows the case law around the militia power have an comment on this topic?

14 thoughts on “Safe Storage: How Far Could Congress’ Militia Powers Go?”

  1. The powers granted to Congress under Art. I, sec. 8, are pretty open-ended:

    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;

    I believe that if Congress passed a law providing that members of the unorganized militia were required to keep their militia arms secured against theft, even if rather detailed in how to do so (gun safe, for example), it would be constitutional. Of course, that would require Congress to require the unorganized militia to be armed again. Not going to happen.

    I think anything broader than regulation of militia arms would have to be done under the miraculous interstate commerce clause provision.

      1. Whatever the law defined. Militia Act of 1792 and 1803 both specify what militiamen were required to own. It seems clear from reading Houston v. Moore (1820) that Congressional authority in this area is very broad:

        Congress has power to provide for organizing, arming and disciplining them; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by congress, it may be exercised to any extent that may be deemed necessary by congress.

        They could require unorganized militia to own machine guns, or antitank weapons, or flamethrowers, assuming that we could legally purchase them. There seems to be no limits on how expensive they could make these requirements. Remember that one of the recurring complaints in the first couple of decades is that the requirement to own militia arms (which were often not particularly suited to hunting) was regarded as a burden on the very poor.

      2. There is an interesting question that I am addressing in an upcoming law review article: what defines “militia arms” from a constitutional standpoint? Obviously, if Congress has authority to define what arms the militia must own, if they fail to define that, or define it very narrowly, does that mean that the right to keep and bear arms goes away? If Congress brought back the Militia Act of 1792, it would not mean that the only arms we could lawfully possess were muskets or firelocks and bayonets.

    1. Forgive my confusion, but the literal reading of Article one, section eight, gives congress power to regulate the “organized Militia.” I was under the impression the unorganized militia was off limits to congress until either organized or called up by the respective State and delivered to congress for national duty (historical sources neatly quoted in

      I realize USC 10-311 may be interpreted to authorize such regulation, but I don’t think it’s warranted under Article One, section eight, and might be technically unconstitutional.

      I also realize I could be wrong. Are you sure the Constitution empowers Congress to regulate the State’s “unorganized” militias?

      Sincerely, Arnie

      1. It grants power to provide for its organization. If it decided to organize every able bodied male, it is certainly empowered to do so, as it has at various points in the past. You could possibly argue the draft is based on the organizational power, but I believe that’s mostly understood under Congress power to raise armies.

        1. Understood. But PRIOR to being organized, is congress authorized to regulate the arms of the unorganized militia?

          I’m not trying to quibble, rather I think this to be central to the question you pose.

          If congress can only regulate militia arms AFTER organizing it, then the answer to your storage question would be “no.” But if congress’ Article 1, section 8 powers also apply to the “unorganized” militia (which the text would seem not to support), then yes, they probably can order the “safe” storage of our arms.

          For what it’s worth.

          Respectfully, Arnie

  2. IMHO this won’t hinge on any power of congress to regulate the militia. But ultimately what power does any government in the US have to regulate the storage of firearms? Heller says “Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.”

    Very clearly this states the purpose for which the law must be tailored. Hence, if someone who lives alone is forced to lock up their firearms when not at home, this is not to protect from accidents but to prevent or deter criminal behavior (as the person would only gain access by way of the crime of B&E).

    Now I will point you to Ryan v. Hughes-Ortiz, 2012 Mass. App. LEXIS 5, ** which is a case that in short, the MA appeals court very correctly rules that people who commit crimes can not later hold others civilly liable for anything that results from their crime. Hence, if one fails to lock up the guns in a safe but has them in a locked home, a burglar steals one and shoots himself, the burglar is then not able to sue the homeowner. A third party MAY be able to sue the homeowner (see Jupin v. Kask, 447 Mass. 141 (Mass. 2006)) if the homeowner would have had a reasonable belief that they would be stolen (i.e.; you live with a felon) but this would not apply to a generalized fear that some random thief would get them.

    So, if you are not civilly liable for the criminal actions of others outside a pre-existing knowledge of a specific threat, then why should you be held criminally liable for the same event?

    That’s your answer. They can’t because the storage law, if not narrowly tailored to apply to access by people who are not themselves culpable and whom the adults have a duty to supervise (children) would run afoul of a few different prohibitions of law, possible SCOTUS case law interpretation and past common law tradition.

    1. Hence, if someone who lives alone is forced to lock up their firearms when not at home, this is not to protect from accidents but to prevent or deter criminal behavior (as the person would only gain access by way of the crime of B&E).

      There is arguably a case that gun safe requirements reduce the number of guns stolen in burglaries, and thus reduce the black market of available firearms–something that is legitimately within the police powers of the states, and within the GCA68 definition of federal authority (GCA68 claimed that convicted felons being in possession of firearms represented a threat to the continued operation of the federal government–snort!)

      The fact is that a lot of guns are stolen in burglaries, and making it harder for criminals to get guns is a good thing. Making it less likely that you will walk in on a criminal who has, in the last three minutes, suddenly obtained a gun, is also generally regarded as a good thing. I cringe at the prospect of the government imposing such requirements, but they seem to have authority under the interstate commerce clause to regulate growing of wheat for personal consumption, to regulate growing of marijuana for personal consumption, and for all I know, to regulate how much CO2 I exhale (global warming and all), so it does not seem as though there is much outside their interstate commerce authority.

      1. Well, the Commerce Clause should get a bit of a test during the oral arguments in re Obamacare next month, and we will find out if it passes or flunks when the Supremes rule this June.

  3. Yes, but there is no reason to reach into language about the militia; instead it is a simple matter of whether the legislation would violate a right.

    We know from Heller that it is unconstitutional for regulation to cause arms to be rendered useless for personal defense (or even “practically useless”). Trigger locks were explicitly cited as too far a regulation, for instance.

    But causing arms to be secured (could mean many things) while there is no practical way that you could use them for defense is not going to be a constitutional issue, whatsoever. To directly respond to your question – yes, if you are not home, then they would almost certainly not run afoul of the Constitution by telling you to secure your arms while away.

    There is simply no “harm” to the right implied, and such law would almost surely fall into the realm of “rational basis” analysis – meaning the government can do whatever it wants. The only real harm that you could potentially claim is that the cost of a safe would prohibit the ownership of arms. So they force something else (cable and trigger locks?). Good luck with that argument in unfriendly courts.

    These regulations already exist in less specific form: more than a few jurisdictions make the provision of arms to underage or otherwise prohibited persons illegal, even if by accident. If a teenager steals your gun and commits a crime, you can be punished (civil and/or criminal) for your failure to safeguard your weapon, if it could be reasonably determined that they would have access to your weapon (your kids or their friends hanging out in your house, for instance).

    In short, “failure to safeguard” laws already exist and are likely to he held constitutional to the extent they do not infringe on the right to defense. For the many cases where the line is blurry (you got kids and guns and don’t want to lock away in case of Bad Things Happening at night), then “reasonable” rules the day. Simply put, would reasonable people consider your pracices…reasonable?

    At the end of that question may be a jury.

  4. The bill of rights amends the constitution; the second amendment trumps Article Two. Congressional powers do not withstand the limitations imposed by the amendments. There is no logical way to interpret the constitution as giving Congress any authority to infringe on the right to keep and bear arms.

    Further, “nor shall private property be taken for public use, without just compensation” – the federal government would need to pay the militia before it could pose requirements.

  5. You might want to see what the rules were when the Union called up the State Militias for Duty, at the beginning of the Civil War. I believe that, in the early days, people showed up with what they had and went at it. But the North eventually standardized (as much as possible, kinda/sorta). I believe most of the Militia Troops, who were disbanded or sent home, even those during the War, got to take their Firearms back with them after the war. But it wasn’t until the formation of the National Guard that we saw lots of Armories spread across the land.

    You know, I don’t think Storage ever really crossed anyones mind until the 20th Century. Oh Regular Army and Navy and the Marines had their rules and regs, but even the organized State Militias would probably only have small Depots for any Artillery and Wagons and such not. But the Unorganized Militia having to keep the Weapons locked up? Not an issue.

    1. I think “safe storage” pre-20th century was only an issue for large amounts of black powder–it was safer to keep such stuff in a shed on the Green, where militia practices were. With smokeless powder kept in cartridges, this is not nearly the problem it used to be.

      Also, with regards to the Civil War: it’s my understanding that lever-action rifles were popular among the Union forces, but weren’t at all “official” arms. Apparently the Confederates complained about the rifle that only needed to be loaded on Sunday, for the rest of the week.

      Or so I’ve heard! :-)

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