Private militia

The State made the usual argument that the Second Amendment was not applicable to the states. It also argued that the prohibition of private militias was not in conflict with the power of Congress to oversee the organization of state militias. 

The Court sided with the State s argument. There is no constitutionally protected right to march as part of a private armed militia. The Second Amendment does not apply to the states. 

This decision gained some recent relevance with the formation of many private militias in the 1980s. Gun control advocates see Presser as denying any constitutional protection to such organizations, as well as reaffirming that the Second Amendment is not a bar to state or local gun regulations. 

Ehrman, Keith A., and Dennis A. Henigan. The Second Amendment in the Twentieth Century Have You Seen Your Militia Lately University of Dayton Law Review, vol. 15, 1989, pp. 5-58. Argues that the Second Amendment guarantees an individual right to keep and bear arms only to the extent it is necessary for the maintenance of an effective militia. Because the federally directed National Guard has replaced the old state militias, it is no longer necessary for private individuals to have firearms, and there is no obstacle to prohibiting them. 

The General Court of Massachusetts, January Session 1784, provided for the organization and government of the Militia. It directed that the Train Band should contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age,. .. Also, That every non-commissioned officer and private soldier of the said militia not under the control of parents, masters or guardians, and being of sufficient ability therefor in the judgment of the Selectmen of the town in which he shall dwell, shall equip himself, and be constantly provided with a good fire arm, c. 

It further provided for organization and control of the Militia and directed that All free male persons between the ages of eighteen and fifty years, with certain exceptions, shall be inrolled or formed into companies. There shall be a private muster of every company once in two months. ... 

Joseph Story, Commentaries on the Constitution of the United States 708-709 (Carolina Academic Press 1987) (1833) (emphasis added). Justice Story calls the right of citizens to keep and bear arms the palladium of our liberties. He viewed the private ownership of firearms as reducing the need for the maintenance of large standing armies by promoting the vitality of the militia, and laments that militia participation is on the decline, fearing this will result in fewer Americans being armed. 

We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant s Second Amendment rights. Accordingly, we reverse the district court s dismissal of the indictment on Second Amendment grounds. 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger not shall any person be subject for the same offence to be twice put in jeopardy of life or limb nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law nor shall private property be taken for public use, without just compensation. 

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