Presser V Illinois

[george_co]

Cosmoline said in the thread “The Preamble to the Bill of Rights” .

“Possibly, but the flip side of that coin is it would PERMIT the states to disarm their own militias. So we're back to square one. If the Second is about the right of states to arm militias, then we're dead.”

In Presser V Illinois the US Supreme Court said that the states could regulate armed bodies of men that were not militias, but in that decision they also said “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. "[/B]

What the supremes were saying (in my opinion) is that under the constitution the .gov had the power to call the people (the militia) forth to defend the country against attack. If the states could disarm the populace then the .gov could not fulfill one of its primary duties, that of defending the country, therefore the states could not disarm the populace. Even today we run the very small risk of being invaded by a larger country, China comes to mind. Where our military, including the reserves, would simply not have the manpower to resist. As a result, the citizenry would be called upon to repel the invaders and we would need to bring our own weapons.

I had previously posted this on another thread and got no debate, so I thought I would try again. This seems to me to a pivotal prior decision by the Supreme Court that the states can not disarm the population because it interferes with the right of Feds to call out the militia.

The following was obtained from "guncite", emphasis added in a couple of places by me.

"Presser V Illinois

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

Argued November 23, 24, 1885.--Decided January 4, 1886.
The doctrine that statutes, constitutional in part only, will be upheld as to what is constitutional, if it can be separated from the unconstitutional provisions, reasserted.

A State statute providing that all able-bodied male citizens of the State between eighteen and forty-five, except those exempted, shall be subject to military duty, and shall be 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 (p.253)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."

 

[hugh damright]

I was thinking the same thing. I think we have a federal protection of our RKBA as it relates to militia regardless of the Second Amendment. I don't see how construing the amendment to regard a States' right to militia would mean that the States could disarm their citizens.

The thing is, a lot of people want federal protection of personal arms for personal use, federal protection of CCW, and on and on. And so they fixate on reconstructing the Second Amendment, saying that anyone who doesn't share their desire to reconstruct the Second Amendment is an anti, and that without this reconstruction of the Second Amendment we are all dead.

 

[ctdonath]

The Constitution gives Congress the power...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To this thread's point: the fed has the power to address the arms the milita has, not the states.
...interestingly, the Constitution later says "the people" may have what arms they wish (2ndA).
Ergo, states are not empowered to restrict arms possession (use, maybe, but not what citizens own).

 

[george_co]

If I then may be allowed to keep this poor struggling thread alive a little longer.

If the "...States cannot prohibit the people from keeping and bearing arms..." then it would fall in line that the various cities (NY, Chicago, Denver, etc) within those states cannot bar the people from keeping and bearing arms. They may be able to bar concealed carry, or firing them within 500' of a building, but not bar them from keeping and bearing them otherwise.

Now, I am not saying that this is the current state of the law, but I first starting looking at this in regards to Heller v DC. I believe that Presser will go a long way in that case, particularly since DC is not in a state. And, that once Heller is decided in our favor that this will play a pivotal role in the hoped for upcoming cases against other states and cities.

Just my thoughts, you mileage may vary.
George

 

[USAFNoDAk]

They may be able to bar concealed carry, or firing them within 500' of a building, but not bar them from keeping and bearing them otherwise.

This is part of the "reasonable" regulation that the government should be allowed to conduct. How to carry firearms, concealed or unconcealed. Where you can fire a gun. I'm a staunch gun owner's rights supporter, but I believe it wouldn't be wise to allow gun owners to conduct target practice in their back yard with high powered rifles if they live in a town or city where housing density is pretty tight. But that doesn't mean the government can stop them from possessing a high powered rifle. This is the situation that Washington, D.C. is fighting. They don't want anyone to have a handgun in their private residence. They don't want people to be able to have any gun that is ready for use in a private residence. The city can regulate against carrying a concealed weapon, or where weapon can be fired in the city, if at all. That might be considered "reasonable" regulation based upon general safety and security of the people living in Washington, D.C. However, banning possession in ones own private residence and banning self defense, is not reasonable, despite what the Bush Justice Department says in the brief they filed regarding that case. They think that the right to keep and bear arms can be restricted and regulated anytime the government thinks it should be for "public safety". If that was true, then Washington, D.C. should have nothing to worry about, as they based their whole arguement on public safety. I hope that they are found to be 100% in error regarding that stance.