No. 132. ADJUTANT GENERAL'S OFFICE, The following Opinion of the Attorney General of the United States is published for the information of all concerned: OPINION. DEPARTMENT OF JUSTICE, WASHINGTON, November 11, 1874. Hon. W. W. BELKNAP, Secretary of War. SIR: I have considered the question referred to me, from your Department, on the 1th of September last, viz: "Whetner, under existing laws, the right of property in the arms issued for arming the militia of the United States, is vested in the State authorities, with power to dispose of them by sale or otherwise, without accounting to the United States." This question, it would seem, from the papers submitted, has been suggested by facts of recent occurrence, which are especially connected with the quota of arms due, under the statutes relating to the arming of the militia, to the State of Virginia. It appears that the Governor of that State made requisitions upon the Chief of Ordnance for about 2,307 revolvers, to be drawn as a portion of the said quota. To meet these requisitions, the latter officer, in July last, gave, to an agent of the State, orders, upon the manufacturer, for that number of revolvers, to be delivered within a short period thereafter. Upon receiving these orders, the agent, acting under the directions of the Governor, proceeded to New York, and, in behalf of the State, entered into contracts with certain parties for camp equipage. It was agreed that the contractors should receive, in payment for the camp equipage furnished the State, under their contracts, an assignment of the aforesaid orders, and that the delivery of the arms, by the manufacturer, should accordingly be made directly to them. But I understand that the Chief of Ordnance, having information of this transaction, and conceiving that the right of the State, to make such disposition of the arms, intended for the militia thereof, was not entirely free from doubt, directed the delivery of the revolvers, on said orders, to be withheld until that point is determined; and the determination of that point has been thought to depend on the solution of the question referred to me. The laws in force, which provide for the furnishing of arms to the militia, by the general Government, are contained in the following sections of the Revised Statutes: "SEC. 1661. The annual sum, of two hundred thousand dollars, is appropriated, to Le paid out of any money in the Treasury, not otherwise appropriated, for the purpose of providing arms and equipments for the whole body of the militia, either by pur "SEC. 1667. All the arms procured, in virtue of any appropriation, authorized by law, for the purpose of providing arms and equipments, for the whole body of the militia of the United States, shall be annually distributed to the several States of the Union, according to the number of their Representatives and Senators in Congress, respectively; and all arms, for the Territories and for the District of Columbia, shall be annually distributed in such quantities, and under such regulations, as the President may prescribe. Al such arms are to be transmitted to the several states and Territories, by the United States. 66 SEC. 1670. The Secretary of War is authorized and directed to distribute to such States as did not receive the same, their proper quota of arms and military equipments for each year, from eighteen hundred and sixty-two, to eighteen hundred and sixtynine, under the provisions of section sixteen hundred and sixty-one: Provided, That in the organization and equipment of military companies and organizations with such arms, no discrimination shall be made between companies and organizations, on account of race, color, or former condition of servitude." The provisions, of the above-named sections, have been taken from the act of April 23, 18C8, ch. 55; the act of March 3, 1855, ch. 169; and the act of March 3, 1873, ch. 282. By the first of those sections, (sec. 1661,) an annual appropriation is made for the purpose of providing arms and equipments for the whole body of the militia." The next section (sec. 1667) provides for an annual distribution, among the several States and Territories, of the arms procured by means of such appropriation. It requires these arms to be transmitted by the United States, to the several States and Terri tories-the quota for each State to be according to the number of its Representatives and Senators, and the quota for each Territory, including the District of Columbia, to be according as the President may prescribe. The remaining section (sec. 1670) is only applicable to the particular case where a State did not receive its proper quota of arms and military equipments for any period from 1862 to 1869. It authorizes the Secretary of War, in that case, to distribute to such State its quota for that period, subject to the proviso therein contained. In none of these sections, adverted to, is there any provision, which expressly vests the property in the arms, after their distribution, in the States absolutely; nor do I find anything therein, from which such a change of ownership results by necessary implication. To get at the intent and meaning of the existing laws, with reference to that point, it seems therefore proper to recur to the earlier legislation on the subject of arming the militia, and particularly to that part of it from which the provisions in the Revised Statutes have been taken. The power of Congress, to legislate on that subject, is expressly conferred by the Constitution, (see Article 1, sec. 8, par. 16;) and the first instance of the exercise of this power, by that body, is found in the act of May 8, 1792, entitled "An Act more effectually to provide for the national defense, by establishing an uniform militia throughout the United States." (1 Stat., 271.) There it consisted simply in requiring each enrolled militia man to " provide himself" with arms of a certain description, (see 1st section of that act.) This requirement is, however, reproduced in the Revised Statutes, (see section 1628,) and it constitutes now, as it did originally, what may be regarded the general law upon the subject of arming the militia-the other provisions of the Revised Statutes, upon the same subject, to which reference has been made, being auxiliary, and not substitutive, in their character. Next followed the act of July 6, 1798, entitled "An Act providing arms for the militia throughout the United States," (1 Stat., 576) By this act, thirty thousand stand of arms were authorized to be provided, at the expense of the Government of the United States, and "sold to the governments of the respective States, or the militia thereof," under such regulations, and at such prices as the President might prescribe. But its object was only to meet an immediate want then felt by some of the States, (especially the Southern,) the people whereof were generally destitute of arms, and could not easily supply themselves therewith. It sought to facilitate the procurement of arms by the latter, to a limited extent, by enabling them or their respective States to purchase the same from the United States. The act of April 2, 1808, authorizing the sale of public arms to the States, (2 Stat., 481,) though it does not purport to have been passed with a view to arming the militia, is of a piece with the act of 1798, and contemplated similar objects. The act of April 23, 1808, entitled "An Act making provision for arming and equipping the whole body of the militia of the United States," (2 Stat., 490,) is the first statute that contains provisions of a general and permanent nature, for furnishing arms and equipments to the militia, by the United States; and it deserves to be well considered here, for the reason that some of the more important of its provisions, directed to that end, are embodied in one or two of the sections of the Revised Statutes above quoted. The 1st section of the act is in substance the same as section 1661 of the Revised Statutes. It appropriates the sum of two hundred thousand dollars, annually, for the purpose of provi ling arms and military equipments for the whole body of the militia of the United States, either by purchase or manufacture, by and on account of the United States." The 3d section declares that the arms procured in virtue of the act "shall be transmitted to the several States composing this Union, and Territories thereof, to each State and Territory, respectively, in proportion to the number of the effective militia in each State and Territory, and by each State and Territory to be distributed to the militia in such State and Territory, under such rules and regulations as shall be by law prescribed by the legislature of each State and Territory." The rest of the act is not material in this connection. The object of the annual appropriation, made by this act, is plainly expressed therein: it was to provide arms and equipments for the entire militia of the United States, so far as such appropriation would enable this to be done That object was contemplated to be carried out, partly through the agency of officers of the general Government, and partly through the intervention of the State authorities. Thus the procuring of the arms with the means provided therefor, was, in the first place to be done by officers of the United States, who were then to transmit the same to each State and Territory, in proportion to the number of the effective militia thereof; whereupon the State and Territorial authorities were to distribute the arms so transmitted to them among the militia, in their respective States and Territories, under such rules and regulations as should be prescribed by the local laws. Accordingly, the States and Territories, with which arms were deposited under this act, must be deemed to have held them for a specific purpose only, and consequently (regarding the subject from a strictly legal point of view) to have had no right to divert them from that purpose by alienation or otherwise. They stood, as it were, in the situation of trustees charged with the distribution of the arms, and had no other property That the States and Territories, in contemplation of this statute, were to be vested with a qualified, not an absolute, ownership of the arms transmitted to them, is very manifest from its terms; which exclude the idea that a power to dispose of the arms, in any manner, and for any purpose, such as would be incident to absolute ownership alone, was intended, by which the very object of the law, viz: the arming of the militia, might be frustrated altogether. A similar view was taken by the Senate in 1855, by which it was then thought necessary, in order to enable the States and Territories to sell the arms theretofore distributed under the act of 1808, to make provision therefor by statute, as impliedly appears from the action of that body, in passing, by way of amendment to the army appropriation bill then pending before it, a section which provided: "That the Governors of the several States and Territories be, and they are hereby, authorized to sell, to the best advantage, the arms heretofore distributed, under the act of April 23, 1808, and invest the funds, arising out of such sales, in other arms more suitable for the purposes contemplated by said act: Provided, that no arms be so purchased or provided, except such as may be of the same description and caliber as those regularly adopted and in use in the Army of the United States." This amendment was not concurred in by the House, on the recommendation of the Committee of Ways and Means, and so it did not become a law. Yet while the negative action of the House cannot, with certainty, be attributed to a difference of view, as to the power of the States and Territories over such arms under the then existing laws, (for it may have proceeded from a doubt as to the expediency of the proposed measure,) the affirmative action of the Senate can assuredly be taken as an indication of its sense with respect to such power, and that was clearly this, that the power, whatever it might be, did not include the right to alienate the arms without the consent of Congress. But to look at the subject from another stand-point. I have already adverted to the fact that the power of Congress, to provide for the arming of the militia, is expressly conferred by the Constitution. It is not maintained that this power is exclusively vested in Congress. It is merely an affirmative power, and if not in its own nature incompatible with the existence of a like power in the States, it may well leave a concurrent power in the latter; so that if Congress did not choose to make any provision for arming the militia, it would be competent to the States to do it in such manner as they might think proper. But when once Congress has carried this power into effect, its laws. for the arming of the militia, are the supreme law of the land; and all interfering State regulations must necessarily be suspended in their operation, (Houston v. Moore, 5 Wheat. 51.) Now it appears that, in the exercise of this power, and with a view to provide for the national defense, Congress had undertaken to furnish arms for the militia at the expense of the general Government. The kind and pattern of arms to be thus furnished, were left to the determination of the officers of the general Government; and hence such arms as were procured and transmitted by these officers, to the States and Territories, for the militia thereof, must be regarded as arms specifically provided therefor by the paramount law. This being the case, is it not obvious that the State and Territorial authorities could not rightfully exchange these arms for others of a different kind or pattern, and distribute the latter to the militia in place of the former?-r sell the arms so provided, and invest the proceeds of the sale in other property which such authorities might conceive to be more needful to promote the efficiency of the militia? In either of these cases, the action of the State and Territorial authorities would manifestly be in direct collision with the supreme law of the lar d. |