Presser v. Illinois

My Spin

If Cruikshank was intended to nullify the Fourteenth Amendment, the State of Illinois intended to nullify a good part of the Second. No, Illinois did not attempt to take away guns. Both the law questioned in Presser and the opinion of the Court holds that if Congress calls the militia, the people must be armed. The state may not interfere with this. However, the state law prevented the militia from drilling, and the court upheld this law.

This is a strange twist on one of the modern gun control arguments. It is said by some gun control advocates that if one is not a trained member of a well drilled militia reporting through proper channels to the state, one has no right to bear arms. The Illinois law discussed in Presser forbade the militia from drilling, and eliminated any proper channel for militia to report to the state.

Again, a review of the history of the time is useful.

Union veterans had a poor view of the militia. Southern militia had killed good men, had pulled units out of action to guard supply lines, but had never really been decisive. Union militia was viewed, perhaps, with even less favor. Northern militia would have fancy uniforms, sleep mostly in their own beds, but were fairly useless in a real fight. Twenty years after the war, the Union veterans were starting to fill up the state houses. In Illinois, this view of militia as useless turned into a law that forbade the general populace from organizing into military groups. It also established the Illinois National Guard, limited in size to 8000 men, that would train to regular army standard.

Strictly speaking, the Illinois National Guard in question was not the modern National Guard. It was a state guard, paid by the state, reporting to the governor, with no responsibility to federal chain of command. (The modern National Guard, paid for and reporting to the federal government, was not formed until 1905.) As such, the Illinois National Guard was unconstitutional. Illinois had not requested permission from Congress to raise troops. I suspect they had just not bothered. I suspect Congress would have given permission had they thought to ask.

While the Illinois law reflected American experience in the Civil War, Presser was an immigrant from Europe, from Germany. Their recent war experience was the Franco-Prussian War. While the United States might not remember its recent war fondly, or see a major war in its future, Germany and France were both anticipating a rematch. The entire fit adult male populations of both countries were either active military or reserves. The massive mobilization plans that would in time be used to start the First World War were already being prepared and practiced.

Presser and two hundred other enthusiastic members of the "Lehr und Wehr Verein" military company thus thought it their patriotic duty to be ready to support their country under arms. This brought them head on against the State of Illinois. Illinois didn't want citizens trained, armed, and organized.

Presser was fined $10. He appealed that fine all the way to the Supreme Court.

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.

This case is about a body of men trying to make themselves ready to contribute to the security of a free State, a state which forbade them from doing so, and a Supreme Court that upheld the state. In the opinion of the court, one's duty as a member of the militia can be met by keeping a weapon ready in case the federal government should call. Training to be ready to use that weapon as part of a coordinated team is not related to one's duty to the federal government. The state may properly forbid such training.


The logic used is similar to that of Cruikshank. The right to assemble isn't valid unless one is petitioning for redress of grievances or performing another function specified in the Constitution. Training for militia duty is not a function specified in the Constitution. Organizing into a military company is not an immunity or privlidge of US citizens, therefore the Fourteenth Amendment does not forbid the states from legislating on such subjects. Thus, the well regulated Militia, though necessary to the security of a free State, was outlawed in Illinois. I'm sure this wasn't the intent of the founding fathers. I know the Fourteenth and First amendment aspects of Presser would not stand in a modern court. Still, as no case has been brought before the Court to contradict this one, it still stands.

United States v. Cruikshank Et Al

Presser v Illinois