Today in Supreme Court History: March 30, 1875

3/30/1875: U.S. v. Cruikshank argued.

Comments

[Dan Schiavetta]

The charge was of disarming the black militia that was guarding the courthouse. The Court held that though this right is in the Constitution it restricts only Congress, not the States. A State can disarm a militia.

If the Second Amendment is now incorporated, it means that not even a State can disarm a militia.

[DaivdBehar]

Randy doesn't say this. The Army hanged a bunch of KKKers including lawyers. Blacks thrived without affirmative action in Reconstruction. Wasn't there a Supremacy Clause in the constitution in 1873? The lawyer, racist traitors on the Supreme Court had trouble reading the plain language of the constitution, including the Eleventh Amendment. Before getting huffy about 1873, today's lawyer traitor is 100 times more lethal to young black males than the KKK ever was.

[Michael D]

“The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment mean no more than that it shall not be infringed by Congress, and had no other effect than to restrict the powers of the National Government.”
from: US v Cruikshank

For you gun grabbers, that means the 2nd amendment does not grant the right to bear arms. It exists whether the 2nd amendment was written or not. It exists whether the Constitution was written or not.

[Syd Henderson]

The amendment doesn't say Congress is the only government body that can't infringe it. I'd interpret it as referring to other government bodies as well, including state governments.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I have always been a bit confused about the bill of rights not applying to the several states before the 14th Amendment. "Congress shall pass no law ..." is federal-specific, giving the states a pass; but not all amendments say that, and the second says "shall not be infringed" without any further adornment, seemingly applying to the states as well.

[David Nieporent]

Well, you'll have to take it up with Chief Justice Marshall, who wrote Barron v. Baltimore.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Naw, he was just another government employee, defining government's limits to suit his employer.

[DaivdBehar]

Did Chief Justice Marshall have a reading disorder? He could not read Article I Section 1 in Marbury, and could not read the Supremacy Clause in Barron.

[SMP0328]

This decision was effectively overruled by McDonald v. Chicago (2010), which incorporated the 2A via the DPC of the 14A.

[Dan Schiavetta]

Otis McDonald said he felt weird meeting with the Second Amendment Foundation which was handling his case. He was surrounded by white people, the only black person in the room. I wonder how that all white crowd would react if, instead of a scared old man, they saw a young black man exercising his 2A rights? Or a black militia which (as in Cruikshank) was fighting off a white mob?

[QuantumBoxCat]

I'm pretty sure Blackman's vote line-up for this case is incorrect. The link to his website has the vote as 5-4. He has the majority composed of Waite, Swayne, Miller, Field and Strong, with the minority being Clifford, Davis, Bradley, and Hunt. This may be the line-up on Wikipedia, but there is nothing in the opinion or records to sustain this. Certainly, Bradley did not cast a dissenting vote in this case since he wrote the Circuit Court opinion granting the motion for arrest of judgment (which was affirmed by the Supreme Court). Waite's majority opinion uses the same rationale that Bradley used in the lower court. I can not find anything that indicates Davis or Hunt cast a dissenting vote in the case.

The report only references Waite as the author of the majority opinion and Clifford as "dissenting." I put dissent in quotes because Clifford's opinion begins with "I concur that the judgment in this case should be arrested, but for reasons quite different from those given by the court." While the Reporter wrote "Mr. Justice Clifford dissenting," this seems like a pretty clear concurrence.

If you use the Reporter's designation, you get a vote of 8-1. But, if you consider Clifford's opinion to be a concurrence, you get a vote of 9-0. However, I am not the one who wrote the textbook on Con Law. So, maybe Josh has access to information that I am unable to identify.