Tuesday, July 18, 2017

The forgotten Second Amendment case: Presser v Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886)

This case should be brought into more prominence in the "Second Amendment Scholarship" since it is basically a refutation of the "unorganised militia" silliness.

The facts of the case are that Herman Presser was a member of the "Lehr und Wehr Verein", an Illinois corporation set up "for the purpose of improving the mental and bodily condition of its members so as to qualify them for the duties of citizens of a republic. Its members shall, therefore, obtain, in the meetings of the association, a knowledge of our laws and political economy, and shall also be instructed in military and gymnastic exercises." The company had no license from the governor of Illinois to drill or parade as a part of the militia of the state, and was not a part of the regular organized militia of the state, nor a part of troops of the United States, and had no organization under the militia law of the United States.

Presser was then charged and convicted of violating Illinois Military code by "unlawfully belong to, and did parade and drill in the city of Chicago with, an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the state of Illinois, or the troops of the United States."

Presser uses the argument put forth by the people who want to say that they are somehow part of a militia because they belong to the "reserve" ("unorganised") militia, not understanding that they aren't really a constitutional militia unless their "militia" is organised under USC Article I, Section 8, Clause 16.

The US Supreme Court upheld Presser's conviction and said
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 of its general powers, the states cannot, even laying the constitutional provision in question 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...

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. 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.
This decision's significance in the Second Amendment Jurisprudence is that it makes it clear that the Amendment relates to the forces set up under Article I, Section 8, Clause 16, and not individual purposes.

US v. Miller made clear that the Second Amendment has the "obvious purpose to assure the continuation and render possible the effectiveness of such forces (organised in accordance with USC Article I, Section 8, Clauses 15 & 16), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Justice William O. Douglas, who was a member of the Supreme Court explained Miller in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972):
The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “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.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”

“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.
The problem is that Heller-McDonald gave credence to a legal theory with no basis.  The worst part of those decisions is that a bogus legal theory was been given an official sanction.

There is an upside, Heller-McDonald are very limited in their scope.  Not to mention very friendly to firearms regulation.  Since "Gun rights" are not a legitimate right, there is no reason they should not be strictly regulated.  As I said before, the Second Amendment does say well regulated.

And regulated means under rules, as Article I, Section 8, clause 14 makes clear.

It's time this case made it back into the Second Amendment jurisprudence where it belongs. It questions the "individual" nature of the right as belonging outside of the militia context.

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