Second Amendment
Historical Cases
Presser v. Illinois (1886)
116 U.S. 252 (1886)
Vote: 9-0
Decision: Affirmed
Majority: Waite, joined by Woods, Miller, Field, Bradley, Harlan, Matthews, Gray, and Batchford
MR. JUSTICE WOODS DELIVERED THE OPINION OF THE COURT.
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 …
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.” …
The position of the plaintiff in error in this Court was that the entire statute under which he was convicted was invalid and void because its enactment was the exercise of a power by the Legislature of Illinois forbidden to the states by the Constitution of the United States …
We have not found it necessary to consider or decide the question thus raised, as to the validity of the entire Military Code of Illinois, for, in our opinion, the sections under which the plaintiff in error was convicted may be valid, even if the other sections of the act were invalid. For it is a settled rule “that statutes that are constitutional in part only will be upheld so far as they are not in- conflict with the Constitution, provided the allowed and prohibited parts are separable …” Packet Co. V. Keokuk (1877); Penniman’s Case (1880); Unity v. Burrage (1881) …
We are of opinion that this rule is applicable in this case. The first two sections of Article I of the Military Code provide that all able-bodied male citizens of the State between the ages of eighteen and forty-five years, except those exempted, shall be subject to military duty, and be designated the “Illinois State Militia,” and declare how they shall be enrolled and under what circumstances. The residue of the Code, except the two sections on which the indictment against the plaintiff in error is based, provides for a volunteer active militia, to consist of not more than eight thousand officers and men, declares how it shall be enlisted and brigaded, and the term of service of its officers and men; provides for brigade generals and their staffs, for the organization of the requisite battalions and companies and the election of company officers; provides for inspections, parades, and encampments, arms and armories, rifle practice, and courts martial; provides for the pay of the officers and men, for medical service, regimental bands, books of instruction and maps; contains provisions for levying and co