472 



LAW, CONSTITUTIONAL. 



4 * whoever offends against the provisions of 

 the preceding section, or belongs to or parades 

 with any such unauthorized body of men with 

 arms, shall be punished by a fine not exceed- 

 ing the sum of ten dollars, or by imprisonment 

 in the common jail for a term not exceeding 

 six months, or both." 



Under this law Presser was convicted and 

 fined for publicly parading with the Lehr-und 

 Wehr-Verein, an organization formed under 

 the laws of the State, u for the purpose of im- 

 proving the mental and bodily condition of its 

 members, so as to qualify them for the duties 

 of citizens of a republic." The company was 

 armed with rifles, and Presser with a cavalry- 

 sword. It paraded without the license of the 

 Governor. Presser's counsel contended that 

 the law under which he had been convicted 

 was unconstitutional, because its enactment 

 was the exercise of a power by the Legislature 

 of Illinois forbidden to the States by the fol- 

 lowing provisions of the Constitution of the 

 United States : 



Art. I, sec. 8. The Congress shall have power 

 ... to raise and support armies ; ... to provide 

 for calling forth the militia to execute the laws of the 

 Union, suppress insurrections, and repel invasions ; 

 to provide for organizing, arming, and disciplining 

 the rnilitia, and for governing such part of them as 

 may be employed in the service of the United States, 



the objection that the legislation was contrary 

 to that provision of the Constitution which 

 empowers Congress to raise and support 

 armies, and to provide for calling out, organ- 

 izing, arming, and disciplining the militia, and 

 also the provision that no State shall, without 

 the consent of Congress, keep troops in time 

 of peace. 



Proceeding to consider whether the sections 

 making military parades criminal, except as 

 allowed by the code, were contrary to that 

 clause of the Federal Constitution which de- 

 clares that "a well-regulated militia being 

 necessary to the security of a free state, the 

 right of the people to keep and bear arras 

 shall not be infringed," Justice Woods said : 



We think it clear that the sections under considera- 

 tion, which only forbid bodies of men to associate to- 

 gether as military organizations, or to drill or parade 

 with arms in cities and towns unless authorized by 

 law, do not infringe the right of the people to keep 

 and bear arms. But a conclusive answer to the con- 

 tention that this amendment prohibits the legislation 

 in question lies in the fact that the amendment is a 

 limitation only upon the power of Congress and the 

 national Government, and not upon that of the 

 States. It was so held by this Court in the case oi 

 United States vs. Cruikshank, 92 United States Re- 

 ports 542, in which the Chief- Justice, in delivering 



4 i i ^ _ . A l _ /"I Jil._u.^.-L__^_.l.X-^ *.l- _ 



the judgment of the Court, said that the right of the 

 people to keep and bear arms "is not a right granted 



reserving to the States, respectively, the appointment by the Constitution^ Neither is it in any manner 

 of the officers, and the authority of training the dependent upon that instrument. The second amend- 



__n:ij_ j:~~ 4._ *t, J:^:T: ,.:u~j T rv ment declares that it shall not be infringed., but tins, 



as has been seen, means no more than that it shall 

 not be infringed by Congress. This is one of the 

 amendments that have no other effect than to restrict 



Ul lilt? <JJU-I.<Jol!5 UU.U. tllv? EfrUtlll 



militia, according to the discipline prescribed by "Con- 

 gress ; to make all laws which shall be necessary 

 and proper for carrying into execution the foregoing 

 powers, etc. 



Art. I, sec. 10. No State shall, without the consent 

 of Congress, keep troops ... in time of peace. 



Art. II of amendments. A well-regulated militia 

 being necessary to the security of a free state, the 

 right of the people to keep and bear arms shall not be 

 infringed. 



In support of this view, the militia acts of 

 Congress were cited, and it was claimed that 

 the power of organizing, arming, and disciplin- 

 ing the militia being confided by the Constitu- 

 tion to Congress, when that body acts on the 

 subject by passing a law to carry into effect 

 the constitutional provision, such action ex- 

 cludes the power of legislation by the State 

 on the same subject. It was argued that the 

 entire military code of Illinois was in conflict 

 with the Federal Constitution and the law of 

 Congress. 



The Supreme Court did not deem it neces- 

 sary to inquire into the validity of the entire 

 code. It confined its decision to the two sec- 

 tions under which the accused had been con- 

 victed, and held them valid. "There is no 

 such connection," said the Court, " between 

 the sections which prohibit any body of men, 

 other than the organized militia of the State 

 and the troops of the United States, from as- 

 sociating as a military company and drilling 

 with arms in any city or town of the State, 

 and the sections which provide for the enroll- 

 ment and organization of the State militia, as 

 makes it impossible to declare one without de- 

 claring both invalid." This view disposed of 



the powers of the national Government, leaving the 

 people to look for their protection against any viola- 

 tion by their fellow-citizens of the rights it recog- 

 nizes to what is called in The City of New York rs. 

 Miln, 11 Petcrs's Reports 139, the'' powers which re- 

 late to merely municipal legislation, or what was 

 perhaps more properly called internal police,' 'not 

 surrendered or restrained' by the Constitution of the 

 United States." 



It 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, and, in view of this prerogative of the general 

 Government, as well as or its general ^ powers, the 

 States can not, even laying the constitutional provi 

 ion m question out of view, prohibit the people f"" 

 keeping and bearing arms, so as to deprive 

 United States of their rightful resource for maint 

 ing the public security, and disable the people ' 

 performing their duty to the general Governu 

 But, as already stated, we think it clear that the 

 tions under consideration do not have this effect. 



The opinion further holds that the sectior 

 of the code under consideration are not re- 

 pugnant to the clause of the fourteenth amend- 

 ment that " no State shall make or enforce 

 any law which shall abridge the privileges or 

 immunities of citizens of the United States." 

 The Court finally says: "It can not be suc- 

 cessfully questioned that the State govern- 

 ments, unless restrained by their own consti- 

 tutions, have the power to regulate or prohibit 

 associations and meetings of the people, ex- 

 cept in the case of peaceable assemblies to 

 perform the duties or exercise the privileges 

 of citizens of the United States ; and have also 



