Takeaway
In short, Presser upheld Illinois’s power to prohibit unauthorized private military organizations and held, at that time, that the Second Amendment restricted only the federal government, not the States.
Herman Presser, who was not a member of Illinois’s organized militia, the United States troops, or an organization authorized under federal militia law, led an armed parade in Chicago with the Lehr und Wehr Verein. The group marched and drilled as a military company without a license from the Governor of Illinois.
Illinois prosecuted Presser under sections 5 and 6 of Article XI of its Military Code. Those provisions prohibited unauthorized bodies of men from associating as military companies or drilling or parading with arms in a city or town. Presser was convicted, and the Supreme Court of Illinois affirmed. He sought review in the United States Supreme Court, arguing that the Illinois law conflicted with federal militia powers and violated the Second and Fourteenth Amendments.
Issue #1
Whether the challenged provisions could remain valid even if other portions of Illinois’s Military Code conflicted with Congress’s authority over the militia.
Holding
Yes. The provisions prohibiting unauthorized military organizations were severable from the rest of the Military Code and could be sustained independently.
Reasoning
The Court did not decide whether Illinois’s broader system for enrolling and organizing its militia was consistent with federal militia legislation. Instead, it applied the settled rule that a statute may be upheld in part when its valid and invalid portions are separable.
Sections 5 and 6 stood apart from the Code’s provisions governing enrollment, the Illinois National Guard, military funding, officers, equipment, courts-martial, and other matters of state militia administration. The sections could have been enacted as a separate, coherent law forbidding unauthorized armed military associations.
Because the challenged sections did not themselves establish or maintain state troops in peacetime, they were not invalid merely because Congress possesses constitutional authority to raise armies, call forth the militia, and organize, arm, and discipline the militia.
Issue #2
Whether Illinois’s prohibition on unauthorized armed military companies violated the Second Amendment.
Holding
No. The Second Amendment constrained only the federal government, not the States, and the challenged law did not deprive people of the ability to keep and bear arms.
Reasoning
Relying on United States v. Cruikshank, the Court held that the Second Amendment was a restriction on Congress and the national government alone. At the time of Presser, it did not operate as a direct constitutional limit on Illinois.
The law did not generally forbid individuals from keeping or bearing arms. It regulated the distinct activity of forming an unauthorized military organization and drilling or parading with arms in cities and towns.
The Court added that States could not disarm their people in a manner that deprived the United States of its potential militia resource. But Illinois’s regulation of unauthorized military companies did not have that effect.
Issue #3
Whether the Illinois law abridged privileges or immunities of national citizenship protected by the Fourteenth Amendment, including a right to assemble as an armed military company.
Holding
No. There is no federal constitutional privilege to form, drill, or parade with an armed military organization without authorization by federal or state law.
Reasoning
The Privileges or Immunities Clause protects only privileges and immunities of citizens of the United States. A claimed federal privilege must therefore rest on the Constitution or laws of the United States, expressly or by implication.
Although the First Amendment protects peaceful assembly to petition the government for redress of grievances, that protection did not establish a general federal right to assemble as a private military company or to drill and parade under arms.
Military organization, drilling, and armed parades are matters subject to governmental regulation. States retain authority to control them, except where federal law authorizes a militia body or otherwise limits state power.
That state authority serves public peace, safety, and order. A contrary rule would impair a State’s ability to prevent or disperse armed groups organized for sedition, treason, riot, or similar violence.
Issue #4
Whether the Illinois law deprived Presser of life, liberty, or property without due process of law, or constituted a bill of attainder or an ex post facto law.
Holding
No. Those constitutional objections were plainly without merit.
Reasoning
The Court found no basis to treat a generally applicable criminal prohibition on unauthorized armed military organizations as a bill of attainder, an ex post facto law, or a deprivation of life, liberty, or property without due process. It therefore declined extended discussion of those claims.
Issue #5
Whether the challenged Illinois provisions conflicted with federal statutes governing the militia.
Holding
No. Fairly construed, the provisions targeted voluntary military associations unauthorized by law and did not interfere with militia organizations authorized under federal law.
Reasoning
A state statute that irreconcilably conflicted with a federal militia statute would be invalid. But courts should, where reasonably possible, construe state law consistently with the Constitution and federal law rather than adopt a strained interpretation that creates a conflict.
The Illinois provisions were directed at private armed organizations operating without legal authorization. They did not purport to prohibit the organization, arming, drilling, or parading of militia bodies authorized by Congress.
Presser’s arguments that the Lehr und Wehr Verein’s corporate status constituted gubernatorial authorization, or that it fell within an educational exception, presented questions of state law rather than federal questions. The Court left those matters to Illinois courts.