In the 1886 case of Presser v. Illinois, 116 U.S. 615. the U.S. Supreme Court found constitutional an Illinois law against unauthorized military organizations and unauthorized armed parading. In doing so, the Court discussed the First and Second Amendments.
A. Herman Presser was indicted in September, 1879 for violating the Illinois law that stated:
"It shall be unlawful for any body of men whatever, other than the regular organized volunteer militia [note all the qualifications - since the 1792 Uniform Militia Act was still the law], 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 [goes on to exclude ceremonial wearing of swords, educational groups with consent of the Governor, etc.]"
At this time, under Illinois law those subject to militia duty were those defined in the 1792 Uniform Militia Act. However, as was common, only the regular organized volunteer militia served. It was limited by statute to 8,000 men and officers. The "license of the Governor" means that the Governor could grant permission to unauthorized groups.
Presser belonged to a private organization called Lehr und Wehr Verein, a corporation organized under Illinois law in 1875 for the purpose of "improving the mental and bodily condition of its members...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 gymnastics exercises."
"Presser,in December, 1879, did march at the head of said company, about 400 in number,in the streets of Chicago, he riding on horseback and in command; that the company was armed with rifles and Presser with a cavalry sword." [p.618]
The Court determined that the Illinois law was not made invalid by the federal militia laws.
Then the Court disposed of the Second Amendment argument by saying:
"We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms." [p.619]
The Court could have stopped there with its discussion of the Second Amendment and these laws. In fact, this statement means that the Second Amendment cannot be used against either federal or state anti-militia laws.
However, the Court then nails down the issue as far as state law is concerned. In 1879, the Court followed the the non-incorporation doctrine that held the restrictions of the Bill of Rights applicable to the federal government alone, not to the states. Nonincorporation has been abandoned for many of the rights under the Bill of Rights, but under current case law still applies to the Second Amendment.
The Court goes on:
"But a conclusive answer to the contention that this Amendment prohibits the legislation in question lies in the fact that the Amendment is a limitation only upon the power of Congress and the National Government, and not upon that of the States" ..." [p.619]
The next paragraph is often misinterpreted. The context is that Illinois must comply with federal law, in this case the 1792 Uniform Militia Act. The state cannot restrict the militia beyond the limits set by federal law. As the federal law changes, within its constitutional boundaries, the state law must also change. The issue is that the state (surprise, surprise) cannot interfere with the federal right to 'provide for the organizing, arming and disciplining' of the militia.
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of of the General Government, as well as of its general powers, the States cannot, even laying aside the constitutional provision out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government. But, as already stated, we think it clear that the sections under consideration have no such effect." [p.619]
The Court also discussed the First Amendment, again in terms of the nonincorporation doctrine. That is, the only free speech issue for the Court dealt with the federal government. Since the Presser case, the First Amendment has been held to apply to the state governments. However, much the same language could be used to discuss whether this state law is valid when state laws must also meet the freedom of assembly test. Part of this passage, is quoted 100 years later in the Vietnamese Fisherman case.
"The only clause in the Constitution which, upon any pretense, could be said to have any relation whatever to his right to associate with others as a military company is found in the First Amendment, which declares that "Congress shall make no law ..abridging.. the right of the people peacably to assemble and to petition the government for a redress of grievances..." [p.619]
"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 operation 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.
"It cannot be successfully questioned that the State governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States; and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power by the State is necessary to the public peace, safety and good order. To deny the power would be to deny the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine." [pp 619-620]
The last paragraphs quoted make clear that the Court did not, as some have argued, deal only with 'unauthorized armed parading.' The Court was equally concerned and found equally valid the provisions dealing with 'unauthorized military company or organization.'
