United States v. Cruikshank Et Al

My own spin.

Cruikshank cannot be understood outside of the politics of the time. Shortly after the Civil War, the north made some attempt to grant blacks in the south a decent position in their society. The north struck down the slave codes, which had prevented slaves from keeping and bearing arms, among other things. The south responded by passing the black codes, which prevented blacks from keeping and bearing arms, among other things. The north responded with the Fourteenth Amendment. This made blacks citizens, and was intended to give them the protections of the Bill of Rights, including keeping and bearing arms.

The Fourteenth was passed under duress. (Yankee infantry with fixed bayonets inside southern legislature buildings as the votes were taken. Oaths were required before representatives were allowed to sit. Passage of the Fourteenth in the state legislatures was a requirement before a state was allowed to seat representatives in the US Congress.)

The north, however, soon grew tired of its mission in the south. An implicit agreement was made. Southerners would admit (some of them, at least in public) that the Union wasn't such a bad idea after all. Northerners would admit that the south fought for states rights under the Constitution, not for slavery, and fought well and honorably. The north would also cease and desist any attempts to prevent white supremacy in the south. It was not until the era of Thurgood Marshall and Martin Luther King in the mid 20th century that the federal government again took an interest in the equality of the races.

United States v. Cruikshank Et Al was about nullifying the Fourteenth Amendment. The case says that if white folk take away black folk's guns, or interfere with other rights protected by the US Constitution, the federal government has no responsibility or power to interfere. Black folk in the south would have to look to state governments for justice, and they would look in vain.

In the process of wiping out the rights of blacks in the south, significant collateral damage was done to the Bill of Rights. As an example, the right to assemble and the right to petition for redress of grievances became the right to assemble to write petitions for the redress of grievances. If an assembly is not petitioning for redress - or performing a similar function directly specified in the Constitution - Cruikshank establishes that the right to assemble does not exist.

Further, the Bill of Rights does not give the people rights. It merely limits the powers of Congress. Thus, if one's federally protected rights are violated, one can not go to the federal courts to seek redress. The XIVth Amendment forbids states from limiting the privileges and immunities of US citizens established by the Constitution. However, the Supreme Court found that the Right to Bear Arms and other rights denied the black defendants are established by God, not by the Constitution. Thus, the right to bear arms is not established by the Constitution. Thus, the states are free to legislate, infringing or eliminating said rights.

I'm sorry. I just cannot take the Court that wrote this decision seriously. The arguments used have far more to do with denying minority rights than honoring the intent of the authors of the Constitution's amendments. However, most to all case law that authorizes the states to infringe upon the right to bear arms traces back to Cruikshank and the other 'Sick Puppy' era cases.

It is recognized that the Supreme Court changes legal theory over the centuries. The mid-20th century courts were fond of inventing new rights. For much of the 20th Century, the Supreme Court has allowed Congress to use its power to regulate commerce in ways never conceived by the founding fathers. It is a dirty little secret that the late 19th Century court was actively hostile to the Bill of Rights. There is a major flaw in the Constitution. The politicians approve the judges. The Supreme Court habitually disregards the written Constitution to favor more powerful government.

Most of the damage done by Cruikshank has long since been corrected by later courts. The First and Fourteenth amendments have been restored to near enough their original meaning. The Court has not, however, reviewed many Second Amendment cases. Cruikshank's is thus still quoted as one of the few cases dealing with the Second.

It is best that the full case be read, tedious though this may be. Cruikshank is quoted by both sides of the gun debate. It includes a solid affirmation of a collective right to bear arms. The fit population must be allowed to have weapons at hand should Congress call upon them. However, other sections of the opinion give the states considerable authority to regulate. The over all flow of Cruikshank is that the states retain police power, and can do or not do as they will. Gun control advocates quoting Cruikshank are not doing so entirely out of context. Still, the full decision should be read, and the political problems of the times remembered.

United States v. Cruikshank Et Al

Presser v Illinois