Sick Puppies

Cruikshank and Presser are both quoted by both sides of the modern gun control debate. The NRA can find clear statements of a collective right to bear arms. If Congress calls, the militia has to be armed, and the states may not interfere with this.

Still, the major thrust of both cases advocate state powers at the expense of the rights of the people. Bills of Rights do not actually guarantee the people rights under the theory of the time. They only limit the powers of Congress or the state legislatures. It is not the federal government's job to protect rights. Police powers were retained with the state. Thus, the federal courts of the era did not feel obligated to enforce the Bill of Rights. This was the state's job.

Gun control advocates can thus find considerable aid and comfort within these cases. The Supreme Court of this era gave considerable latitude to legislate exceptions to the Bill of Rights. Still, the basic theory the Court of the time used has been overturned. The Fourteenth Amendment is now read as preventing the states from infringing on the Bill of Rights. If an individual's rights are violated, and he can not get redress in state courts, allegations of civil rights violations can now be taken to federal courts.

Since so few Second Amendment cases have been legislated, the Second Amendment aspects of Cruikshank and Presser have not been explicitly overturned by modern courts. While First and Fourteenth Amendment aspects of Cruikshank and Presser have clearly been voided, these cases are still considered quotable in court and in the gun debate.

United States v. Cruikshank Et Al

Presser v Illinois