Presser v. Illinois - 116 U.S. 252, 6 S. Ct. 580 (1886)

Rule:

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.

Facts:

Appellant militiaman, a citizen of the United States and of the State of Illinois, marched at the head of a company of armed men in the streets of the city of Chicago. 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. The militiaman was convicted of parading and drilling as a military company, without having a license from the governor and without having been part of the regular organized militia of Illinois or troop of the United States, in violation of The Military Code of Ill. art. XI, §§ 5, 6, Act of May 28, 1879, Laws of 1879, 192. Appellant challenged his conviction, arguing that the entire statute under which he was convicted was invalid and void, because its enactment was the exercise of a power by the legislature of Illinois forbidden to the States by the Constitution of the United States.

Issue:

Was the Military Code of Ill. art. XI, §§ 5, 6, Act of May 28, 1879, Laws of 1879, 192 invalid and void, thereby warranting the reversal of appellant’s conviction? 

Answer:

No.

Conclusion:

On appeal, the court affirmed his conviction and held that the Military Code of Ill. art. XI, §§ 5, 6, Act of May 28, 1879, Laws of 1879, 192, was not unconstitutional and did not infringe the right of the people to keep and bear arms. The Second Amendment was a limitation only upon the power of Congress and the national government, and not upon that of the states. The court held that a state could pass laws to regulate the privileges and immunities of its own citizens, and there was no national privilege that conferred rights to form a militia, and the state had the power to enact §§ 5, 6.