Today in 1886: The Supreme Court rules in Presser v. Illinois

January 4, 2013

Today in Legal HistoryThis Wednesday, we published the first of a month-long series on the history and current landscape of gun control and gun ownership laws.

In that post, I discussed the Supreme Court’s 2008 decision District of Columbia v. Heller in relation to whether the Framers of the Constitution actually intended the Second Amendment to enshrine an individual right to gun ownership.

Justice Scalia’s majority opinion in Heller resolved that question in the affirmative, but, in looking at other sources, including previous Supreme Court rulings, my post concluded otherwise (of course, the question is purely an academic one, since Heller established such a right regardless of what the Framers intended).

In reaching the opposite conclusion as the Heller majority, I discussed 1875’s U.S. v. Cruikshank, but I didn’t get to any other SCOTUS rulings involving the Second Amendment.

Coincidentally, the next case chronologically on that list of rulings, Presser v. Illinois, celebrates its 127th birthday today; Presser was decided on January 4, 1886.

Presser involved a challenge to a state law that prohibited private armed militias marching without a license.

Herman Presser led a demonstration of about 400 armed individuals associated with the Socialist Labor Party through the streets of Chicago, and was charged with violating the law.

According to Scalia’s Heller opinion, Presser “held that the right to keep and bear arms was not violated by a law that forbade ‘bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.’”

Further, Scalia wrote that “Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations.”

These observations aren’t entirely accurate.

First, Presser held that the Second Amendment, not “the right to keep and bear arms,” was not violated by the state law at issue in the case.

There may not seem to be a practical difference between the two statements, but there very much is: the Supreme Court in Presser, in affirming Cruikshank, understood the Second Amendment as not applying to the states in any form, only to the federal government.

And this was not merely a matter of a lack of Fourteenth Amendment jurisprudence imposing the same restrictions on the states that were imposed on the federal government, which brings us to the second point: Presser actually said quite a bit about “the Second Amendment’s meaning or scope.”

Like the Court in Cruikshank, the Court in Presser understood the Second Amendment as being inextricably linked with a state militia.

According to Presser, any right of the people to keep and bear arms was completely contingent on these arms being used in the service of the federal or state government.

In fact, Presser explicitly stated that “[i]t is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states.”

In other words, Presser held the government cannot “prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”

When one reads these passages, it’s hard to support the notion that Presser does not discount the idea of the Second Amendment bestowing an individual right to gun ownership, as Justice Scalia claims in Heller.

This is especially true since Presser, like Cruikshank, specifically stated that “the right of the people to keep and bear arms is not a right granted by the constitution” and that the Amendment only operates to prevent the federal government from infringing on the police powers of the individual states.

But, as the adage goes, history is written by the victors, and since Heller ruled that the Second Amendment was written to give individual citizens a right to gun ownership independent of any duty to serve in a state militia, such is the law of the land.

Nevertheless, Presser still services as a reminder that, once upon a time, the Supreme Court viewed it differently.