U.S. Supreme Court
Presser v. Illinois, 116 U.S. 252 (1886)
Presser v. Illinois
Argued November 23-24, 1885
Decided January 4, 1886
116 U.S. 252
The doctrine that statutes constitutional in part only will be upheld as to what is constitutional if it can he separated from the unconstitutional provisions reasserted.
A state statute providing that all able-bodied male citizens of the state between eighteen and forty-flue, except those exempted, shall be subject to military duty, and shall he enrolled and designated as the state militia, and prohibiting all bodies of men other than the regularly organized volunteer militia of the state and the troops of the United States from associating together as military organizations or drilling or parading with arms in any city of the state without license from the governor as to chanroblesvirtualawlibrary
these provisions is constitutional, and does not infringe the laws of the United States, and it is sustained as to them, although the act contains other provisions, separable from the foregoing, which it was contended infringed upon the powers vested in the United States by the Constitution or upon laws enacted by Congress in pursuance thereof.
The provision in the Second Amendment to the Constitution, that "The right of the people to keep and bear arms shall not be infringed" is a limitation only on the power of Congress and the national government, and not of the states. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security.
The provision in the Fourteenth Amendment to the Constitution that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States.
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.
Herman Presser, the plaintiff in error, was indicted on September 24, 1879, in the Criminal Court of Cook County, Illinois, far a violation of the following sections of Art. XI of the Military Code of that state, Act of May 28, 1879, Laws of 1879, 192.
"§ 5. It shall not be lawful for any body of men whatever other than the regular organized volunteer militia of this state and the troops of the United States to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state without the license of the Governor thereof, which license may at any time be revoked, and provided further that students in educational institutions where military science is a part of the course of instruction may, with the consent of the Governor, drill and parade with arms in public under the superintendence of their instructors, and may take part in any regimental or brigade encampment under command of their military instructor, and while so encamped shall be governed by the provisions of this act. They shall be entitled only to transportation
and subsistence, and shall report and be subject to the commandant of such encampment, provided that nothing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords."
"§ 6. Whoever offends against the provisions of the preceding section or belongs to or parades with any such unauthorized body of men with arms shall be punished by a fine not exceeding the sum of ten dollars ($10), or by imprisonment in the common jail for a term not exceeding six months, or both."
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.
The bill of exceptions taken upon the trial set out all the evidence, from which it appeared that Presser was thirty-one years old, a citizen of the United States and of the State of Illinois, and a voter; that he belonged to a society called the "Lehr und Wehr Verein," a corporation organized April 16, 1875, in due form, under chapter 32, Revised Statutes of Illinois, called the "General Incorporation Laws of Illinois," "for the purpose," as expressed by its certificate of association,
"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;"
that Presser, in December, 1879, marched at the head of said company, about four hundred in number, in the streets of the City chanroblesvirtualawlibrary
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. The evidence showed no other facts. Exceptions were reserved to the ruling of the court upon the motion to quash the indictment, to the finding of guilty, and to the judgment thereon. The case was taken to the Supreme Court of Illinois, where the judgment was affirmed. Thereupon Presser brought the present writ of error for a review of the judgment of affirmance. chanroblesvirtualawlibrary