Facts
- Illinois’s Military Code made it unlawful, without the governor’s license, for any body of men (other than the state’s organized militia or U.S. troops) to associate as a military company or to drill or parade with arms in any city or town.
- Herman Presser, a member of the Lehr und Wehr Verein, led roughly 400 armed men in Chicago in a public parade and drill; the group carried rifles and Presser carried a cavalry sword.
- The group had no license from the governor and was not part of the regular organized volunteer militia of Illinois or the troops of the United States.
- Presser was indicted under the statute, convicted after a bench trial, and fined $10.
- The Illinois Supreme Court affirmed the conviction, and Presser sought review in the U.S. Supreme Court.
Issues
- Whether Illinois’s prohibition on unlicensed armed drilling and parading by private military organizations violated the Second Amendment.
- Whether the statute violated the Fourteenth Amendment by abridging privileges or immunities of U.S. citizenship or by depriving liberty or property without due process of law.
- Whether Congress’s militia powers and federal militia statutes preempted or invalidated Illinois’s regulation of private military organizations.
- Whether the statute violated a federally protected right of peaceable assembly under the First Amendment as applied to the states.
Decision
- The U.S. Supreme Court affirmed Presser’s conviction and upheld the challenged provisions as applied to unlicensed armed drilling and parading by an unauthorized private military body.
- The Court held the Second Amendment, as then understood, limited only Congress and the national government, not the states.
- The Court held the First Amendment right of assembly likewise constrained only the federal government and did not bar Illinois’s regulation.
- The Court rejected the claim that federal militia legislation displaced Illinois’s authority to regulate unauthorized military organizations and armed parades.
- The Court held the Fourteenth Amendment did not make the asserted right to organize and march as an armed private military company a privilege or immunity of U.S. citizenship, and the prosecution under a general criminal law after indictment and trial satisfied due process.
Legal Principles
- Under the Court’s then-prevailing doctrine, the Second Amendment restricted federal action and did not, by itself, invalidate state laws regulating arms-related conduct.
- States may regulate and control private military organizations, including drilling and parading with arms, except where federal militia law authorizes the activity or where state action would impair the federal government’s militia-related interests.
- The Fourteenth Amendment’s Privileges or Immunities Clause was construed not to transfer general control of citizens’ state-law privileges to the federal sphere; it protected only privileges or immunities of U.S. citizenship as defined by the Court.
- States may not disarm the people to the point of depriving the United States of citizens as a reserved military force, but regulating unauthorized armed military parades does not necessarily do so.
- A statute may be enforced as to separable constitutional applications even if other provisions could raise distinct constitutional questions.
Conclusion
The Court sustained Illinois’s power to forbid unlicensed armed drilling and parading by private military groups and, at the time, treated the First and Second Amendments as limits on the federal government rather than direct restraints on the states, rejecting Fourteenth Amendment challenges to Presser’s conviction.