Presser v. Illinois
The Court upheld an Illinois law that made it a crime for private groups of armed men, not part of the state-sanctioned militia, to organize, drill, and parade with weapons in the state's cities and towns.
The ruling established that the Second Amendment's right to keep and bear arms limits only the federal government, not the states, and that citizens have no independent constitutional right to form private armed military companies.
“The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.”
Explaining that the Second Amendment restricts only the federal government, not the states.
How it got here: The Illinois Supreme Court upheld the conviction under the state Military Code, and the defendant brought the case to the U.S. Supreme Court on federal constitutional grounds.
The Case in Depth
What happened
A man led an armed group called the Lehr und Wehr Verein that drilled and paraded with rifles through the streets of a city, without belonging to Illinois's official state militia or the U.S. troops. Illinois law made it a crime for any body of men other than the organized militia or federal troops to associate as a military company and drill with arms in public without the governor's license. He was indicted, convicted, and fined under this law.
The question before the Court
Could Illinois punish a man for organizing and drilling an armed marching group that wasn't part of the state militia?
Why it matters
The decision meant states could freely regulate or ban private armed paramilitary groups without running afoul of the Second Amendment, since that amendment did not yet apply to the states. It also confirmed that forming an armed marching company is not, on its own, a citizenship right protected against state interference.
What changes now
This is a final merits decision affirming the state supreme court's judgment and the underlying criminal conviction. No further proceedings were ordered; the ruling stood as binding precedent that the Second Amendment did not restrain state regulation of private armed groups, a principle that persisted until later incorporation doctrine developments addressed whether the Second Amendment applies to the states.
What this does not decide
The Court did not decide whether Illinois's entire Military Code was constitutional, only that the two sections banning unauthorized drilling could be separated from and upheld apart from the rest. It also did not decide whether states could disarm citizens entirely, noting government still cannot leave citizens unable to serve as a reserve militia.
How the Court got there
The legal reasoning, step by step
- The Court first addressed whether the challenged sections could be evaluated independently of the rest of Illinois's Military Code, applying the rule that a partly unconstitutional statute can still be upheld in its valid parts if those parts are separable from the invalid ones.
- Finding the two sections banning unauthorized armed drilling could stand alone from the rest of the militia-organization statute, the Court concluded it did not need to decide whether the remainder of the Code conflicted with federal militia laws.
- Turning to the Second Amendment, the Court held that the constitutional right to keep and bear arms restricts only Congress and the federal government, not the states, relying on its earlier ruling in United States v. Cruikshank that this amendment 'has no other effect than to restrict the powers of the National government.'
- The Court then considered the Fourteenth Amendment's Privileges and Immunities Clause, which protects only rights of national citizenship, and found no federal or constitutional source granting citizens a right to form private armed drilling companies independent of law.
- Because military organization and drilling are subjects traditionally regulated by government, and the plaintiff could point to no statute or constitutional provision granting such a right, the Court held that Illinois's ban did not abridge any privilege or immunity of United States citizenship.
- The Court also read the statute narrowly, construing it to avoid conflict with federal militia laws by interpreting it as targeting only unauthorized private drilling, not the organization of the militia under congressional authority.
Doctrinal impact
Cases affected by this decision
Reaffirms United States v. Cruikshank (92 U.S. 542)
Relied on to confirm the Second Amendment and assembly rights limit only federal, not state, power.