Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/466

power," says he, "to provide for organizing, arming and disciplining the militia; and it is presumable, that the framers of the constitution contemplated a full exercise of all these powers. Nevertheless, if congress had declined to exercise them, it was competent to the state governments to provide for organizing, arming, and disciplining their respective militia in such manner, as they might think proper. But congress has provided for these subjects in the way, which that body must have supposed the best calculated to promote the general welfare, and to provide for the national defence. After this, can the state governments enter upon the same ground, provide for the same objects, as they may think proper, and punish, in their own way, violations of the laws they have so enacted ? The affirmative of this question is asserted by counsel, &c. who contend, that unless such state laws are in direct contradiction to those of the United States, they are not repugnant to the constitution of the United States.—From this doctrine I must, for one, be permitted to dissent. The two laws may not be in such absolute opposition to each other, as to render the one incapable of execution without violating the injunctions of the other; and yet the will of the one legislature may be in direct collision with that of the other. This will is to be discovered, as well by what the legislature has not declared, as by what they have expressed. Congress, for example, have declared, that the punishment for disobedience of the act of congress shall be a certain fine. If that provided by the state legislature for the same offence be a similar fine with the addition of imprisonment or death, the latter law would not prevent the former from being carried into execution, and may be said, therefore, not to be repugnant to it. But surely the will of Congress