by Dave Kopel. More by Kopel on the legal history of the Second Amendment in the 19th century.
If you read the literature from the anti-gun lobbies, you will be informed that the United States Supreme Court has "repeatedly" ruled that the Second Amendment is not an individual right. In this column, we'll look at the Supreme Court's most important gun case from the 19th century. This case is frequently cited by the anti- gun lobbies, but they cite the case for ideas which never appear in the case.
The case is Presser v. Illinois (116 U.S. 252 ). The issue in Presser had nothing to do with whether the Second Amendment protected an individual right, but rather with the constitutionality of a particular gun control; a ban on parading a privately-formed, armed group down public streets.
The late 19th century was a period in which state governments resorted to increasingly violent means to suppress organized labor. Unsurprisingly, many labor groups formed self-defense organizations. National Guard units and other state para-miltary forces (and occasionally the U.S. Army) were used to suppress strikes. Most workers' organizations were not interested in overthrowing the government, but only in protecting their right to choose to bargain collectively for decent working conditions and fair wages.
One prong of the governmental effort to suppress organized labor was a ban on armed parades in public; Illinois was one of the states that enacted such a ban, making it a crime for "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law..."
In response, a labor organization composed of German immigrants, Lehr und Wehr Verein staged a parade in which they carried unloaded rifles. A prosecution ensued, and the case eventually got to the Supreme Court.
The Court had no difficulty upholding the law. First, the Court said that Illinois's legislation "does not infringe the right of the people to keep and bear arms." Explained the Court, "The exercise of this power by the States is necessary to the public peace, safety and good order. To deny the power would be to deny the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine."
But the dispositive issue, according to the Court, was that, as the Court had ruled in previous cases, the entire Bill of Rights, including the Second Amendment, "is a limitation only upon the power of Congress and the National Government, and not upon that of the States."
In other words, the Bill of Rights only protected citizens against federal laws, not against state laws. (This doctrine was abandoned in the 20th century, but that's another story.)
Now Presser is a good case for gun control advocates. The case upholds one particular kind of gun control, and could, arguably at least, be used as a foundation for bans on other collective exercises of the right to keep and bear arms. In addition, the case removes the Second Amendment as a barrier to state or local gun control.
It's questionable today whether Presser is good law, in light of various 20th-century cases, but Presser has never formally been over-ruled.
Yet the anti-gun lobbies, which could use Presser as a basis for gun-control, instead represent Presser as supposedly supporting the idea that there is no right to arms at all.
Of course, nothing in Presser says that the Second Amendment is not an individual right. In fact, one part of the Presser opinion erects a new limitation on gun prohibition.
While Presser said that the Second Amendment does not protect gun owners against state laws, the Presser Court explained that a different section of the Constitution does limit state gun laws.
Article One, Section Eight of the Constitution grants Congress limited powers over the militia. (To call forth the militia in certain circumstances, and regulate militia training.) In dicta (a non-binding expression of opinion, not necessary to decide the case at bar), the Court noted that even if there were no Second Amendment, the states could not disarm their citizens, because such disarmaments would deprive Congress of its Article I power to regulate militia training and to call forth the militia:
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States; and, in view of this prerogative of the General Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, 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. But, as already stated, we think it clear that the sections under consideration do not have this effect."
Thus, the Court states that the states may not "prohibit the people from keeping and bearing arms." Further, the militia is not a select, uniformed force, instead, the militia consists of "all citizens capable of bearing arms."
Thus, when the anti-gun lobbies claim that Presser not only supports gun control (which it does) but also says that there is no Constitutional barrier to gun prohibition, the lobbyists are wildly off-base.
Presser is consistent with other Supreme Court cases on gun control. (We'll look at them in future columns.) While acknowledging that gun ownership is a Constitutional right, the Court upholds the particular gun control in question. Taking these cases at face value ought to be sufficient for groups which merely favor moderate gun controls. That gun control groups work so hard to take Presser and other cases out of context, and to invent claims that these cases mean there is no right to bear arms at all, shows a lot about the basic beliefs of the anti-gun groups. Rather than respecting gun ownership as a legitimate right subject to moderate controls, the anti-gun groups seek to destroy all Constitutional protection for gun ownership, leaving the government free to treat gun ownership as a severely regulated privilege with harsh restrictions (as the anti-gun lobby pragmatists would prefer) or to ban guns entirely (as the lobbies' more idealistic members would prefer).