Thursday, August 21, 2014

Meet Presser v. Illinois, 116 U.S. 252 (1886)

I am amazed at how much the Second Amendment debate is held in ignorance: in particular, this case should be front and centre.

I should add that as long as the "civic right" interpretation of the Second Amendment is out there, this is still a valid case.  In fact, while the Heller-McDonald line of cases said this may no longer be applicable, the fact that the court said that "to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same" would relate to public order means that this is a very relevant case to a world where people want to openly carry arms in public.


Herman Presser was part of a citizen militia group, the Lehr und Wehr Verein (Instruct and Defend Association), a group of armed ethnic German workers, associated with the Socialist Labor Party. The group had been formed to counter the armed private armies of companies in Chicago.
The indictment charged in substance that Presser, on September 24, 1879, in the county of Cook, in the State of Illinois, "did 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." A motion to quash the indictment was overruled. Presser then pleaded not guilty, and both parties having waived a jury the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10.
In December 1879, marched at the head of said company, about four hundred in number, in the streets of the city of Chicago, he riding on horseback and in command; that the company was armed with rifles and Presser with a cavalry sword; that 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 claimed the law violated his rights under the Second Amendment.


"Unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States."

The Presser Court 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.
The Court emphatically disposed of Presser's argument that there exists a right to assemble, drill, or march in a militia independent of authorization by state or federal law:
The right voluntarily to associate together as a military company or organization or to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the State and Federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.
In other word, as I have been saying all along, you do not belong to a "Constitutional Militia"  unless you belong to an actual serving organisation which is organised under Article I, Section 8, Clauses 15 & 16 of the United States Constitution.  As per Article VI, Clause 2 of the United States Constitution, that body is the National Guard: whether you like it or not.

In fact, reading Presser, it's pretty clear that the "unorganised militia" argument is seriously nonsensical from a legal point standpoint.  There is no basis for claiming that a reserve pool with no obligation of service (hence Unorganised, Sedentary, reserve, inactive,  general or other term indicating INACTIVITY Militia) has any "right" to arms.

This is especially true if your unit was not created by act of congress and under some form of governmental control.

I would also add that local governments are probably on good ground in strictly regulating open carry rallies by combining this case with the comment in Heller that:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).
Additionally, as I pointed out before the First Amendment protect peaceable assembly.  Any armed group is not "peaceable" in any realistic sense of that word.


  1. So he was not charge for carrying a weapon illegally only that he was illegally forming and parading a military unit not sanctioned by the government? Why no weapons charges if he did not have the right to carry weapons?

  2. So, under your interpretation Laci, unless a state specifically allows a group of citizens to be armed in public via statute or constitution, they cannot be armed in public because they are an "unauthorized militia" and not under the direction of the state. Thus, before a group can be legally armed in public, they have to be an "organized (authorized) militia" that the state calls up and directs. Correct?

    Here is the problem with that kind of interpretation. A neighborhood or community which suddenly finds themselves under attack cannot legally self-organize and assemble in public with firearms to defend their neighborhood or community ... at least not until they contact their governor and their state officially organizes them and calls them for duty. Meanwhile, criminal hordes or an invading army can rape, pillage and plunder going house-to-house taking out individuals in their homes who try in vane to fend off a large force of attackers all by themselves.

    And this isn't hypothetical, either. Remember the riots in Los Angeles in the early 1990s? Criminal hordes foisted this scenario on Korean shopkeepers who suddenly found themselves banding together with arms to protect their residences, businesses, and livelihoods. But that activity was illegal in your world because the State of California never organized them or called them up for duty. Rather, the Korean business owners were supposed to be good citizens and let the criminal hordes destroy their lives.

    That idea might make you all warm and fuzzy. It has the opposite effect on most people in the States.

    -- TruthBeTold

  3. Of course Laci failed to address this part of what the Presser court said,

    "... the States cannot, even laying the constitutional provision in question [2nd Amendment] out of view, prohibit the people from keeping and bearing arms ..."

    The Pressure court said that the states cannot prohibit the PEOPLE from keeping and bearing arms even if the Second Amendment did not exist! And every definition of the word "bear" that I find means to have on your person, to carry, to tote, etc. That means the good people have a natural, pre-existing, and even superfluously defined (according to the Presser court) Constitutional right to keep and bear arms, period.

    Face the facts. Our Framers clearly stated their intention that all good people in the U.S.A. have a right to keep and bear arms. Our U.S. Supreme Court, as flawed as it is, has consistently stated that all good people in the U.S.A. have a right to keep and bear arms.

    At best, the only thing I can find from the twisted Presser court holding is that a state can forbid a large gathering of armed people when their sole intention is to act as a military organization and intimidate a business with what we call "maneuvers" today.

    -- TruthBeTold

  4. Simply because the law does not address an issue (if their were no 2nd amend.) does not mean it is a natural, pre-existing right. In fact, if a case would come to court without the 2nd amend. protection owning a gun might easily be declared illegal.

    1. Such as it is the case in other countries that don't recognize the natural instinct of self preservation, doesn't mean it doesn't exist. But in this country it was found to exist and rights enumerated to protect that right as well as others were written in such a way to not allow the government to deny them.

      There is a way, a process that allows the amendment of the Constitution to get what you want. Good luck in getting that done. I don't believe the majority of the people will allow it.

      There is a second option, move to the country of your choice that has the laws you want. It would be a win win for all of us.

    2. If owning a gun is such a natural and universal right why did they have to put it in writing? There is no such right in writing for taking a piss, or eating, both of which are much more a natural right than owning a gun. Oh, I already said that, but you ignored it. You have no answer but to regurgitate your not thought about talking points.