Debate Magazine

Why Presser v Illinois is Important to Second Amendment Jurisprudence

Posted on the 30 August 2019 by Doggone
Ignoring this from the "Second Amendment Jurisprudence" is totally wrong.  The basic gist of the case:
In Presser v. Illinois, the Court sustained an Illinois state statute prohibiting parading with arms by groups other than the organized militia. Herman Presser, who had been convicted of leading armed members of a fraternal organization in a parade, challenged the statute on the grounds that it violated the Second and Fourteenth Amendments.
If that doesn't set off bells in your head that this is important to "Second Amendment Scholarship", then you need to stop pretending to be a "Second Amendment Scholar".
"The plaintiff in error insists that the act of congress requires absolutely all able-bodied citizens of the state, between certain ages, to be enrolled in the militia; that the act of Illinois makes the enrollment dependent on the necessity for the use of troops to execute the laws and suppress insurrections, and then leaves it discretionary with the governor by proclamation to require such enrollment; that the act of congress requires the entire enrolled militia of the state, with a few exemptions made by it and which may be made by state laws,"
Herman Presser was using the "unorganized militia" argument. Presser argues that Illinois law regarding people associating "themselves together as a military company, or to drill or parade with arms without the license of the governor, and declares that no military company shall leave the state with arms and equipments without his consent" violated his Second Amendment right. Unfortunately, the Court said that argument had no legal bearing.
So, while this didn't go to whether there was "an individual right" the fact that Presser was barred from exercising his "Second Amendment right" outside the context of being a member of the active, organized militia pretty much sits square in the arguments made by "Second Amendment Scholars" that this right is related to the militia duty, not personal purposes. The Presser Court made statements such as:
We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.

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.


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.
So,like the Heller and McDonald cases, there is "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." And both decisions made it clear that this list was not exhaustive.
New York's Sullivan Act was enacted in 1911. So, there is nothing in the current canon of US gun laws, including Heller and McDonald, which would preclude strong gun laws. In fact, the Heller and McDonald decisions were so narrow that only an "absolute prohibition" on handguns in the home are prohibited under current law. But looking at how strong some states' prohibition on carrying concealed, that means that Heller and McDonald can be safely ignored.
Unless the issue is an absolute prohibition on handguns in the home for self-defence.

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