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.
The clauses of the Constitution of the United States referred to in the assignments of error, were as follows:
Art. I., sec. 8. "The Congress shall have power ... To raise and support armies... . 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 make all laws which shall be necessary and proper, for carrying into execution the foregoing powers," &c.
Art. I., sec. 10. "No State shall, without the consent of Congress, keep troops ... in time of peace."
Art. II. of Amendments. "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."
The plaintiff in error also contended that the enactment of the 5th and 6th sections of Article XI. of the Military Code
The first contention of counsel for plaintiff in error is that the Congress of the United States having, by virtue of the provisions of Article I., section 8, above quoted, passed the act of May 8, 1792, entitled "An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," 1 Stat. 271, the act of February 28, 1795, "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," 1 Stat. 424, and the act of July 22, 1861, "to authorize the Employment of Volunteers to aid in enforcing the Laws and protecting Public Property," 12 Stat. 268, and other subsequent acts, now forming "Title XVI., The Militia," of the Revised Statutes of the United States, the legislature of Illinois had no power to pass the act approved May 28, 1879, "to provide for the organization of the State militia, entitled the Military Code of Illinois," under the provisions of which (sections 5 and 6 of Article XI.) the plaintiff in error was indicted.
The argument in support of this contention is, that the power of organizing, arming, and disciplining the militia being confided by the Constitution to Congress, when it acts upon the subject, and passes a law to carry into effect the constitutional provision, such action excludes the power of legislation by the State on the same subject.
It is further argued that the whole scope and object of the Military Code of Illinois is in conflict with that of the law of Congress. It is said that the object of the act of Congress is to provide for organizing, arming, and disciplining all the able-bodied male citizens of the States, respectively, between certain ages, that they may be ready at all times to respond to the call of the nation to enforce its laws, suppress insurrection, and
The plaintiff in error insists that the act of Congress requires absolutely all able-bodied citizens of the State between certain ages, to be enrolled in the militia; that the act of Illinois makes the enrolment dependent on the necessity for the use of troops to execute the laws and suppress insurrections, and then leaves it discretionary with the governor by proclamation to require such enrolment; that the act of Congress requires the entire enrolled militia of the State, with a few exemptions made by it and which may be made by State laws, to be formed into companies, battalions, regiments, brigades, and divisions, that every man shall be armed and supplied with ammunition, provides a system of discipline and field exercises for companies, regiments, &c., and subjects the entire militia of the State to the call of the President to enforce the laws, suppress insurrection, or repel invasion, and provides for the punishment of the militia officers and men who refuse obedience to his orders. On the other hand, it is said that the State law makes it unlawful for any of its able-bodied citizens, except eight thousand, called the Illinois National Guard, to associate themselves together as a military company, or to drill or parade with arms without the license of the governor, and declares that no military company shall leave the State with arms and equipments without his consent; that even the eight thousand men, styled the Illinois National Guard, are not enrolled or organized as required by the act of Congress, nor are they subject to the call of the President, but they constitute a military force sworn to serve in the military service of the State, to obey the orders of the governor, and not to leave the State without his consent; and that, if the State act is valid, the national act providing for organizing, arming, and disciplining the militia is of no force in the State of Illinois, for the Illinois act, so far from being in harmony with the act of Congress, is an insurmountable obstacle to its execution.
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 collecting a military fund by taxation, and directs how it shall be expended; and appropriates $25,000 out of the treasury, in advance of the collection of the military fund, to be used for the purposes specified in the Military Code.
It is plain from this statement of the substance of the Military Code, that the two sections upon which the indictment against the plaintiff in error is based may be separated from the residue of the Code, and stand upon their own independent provisions. These sections might have been left out of the
This view disposes of the objection to the judgment of the Supreme Court of Illinois, which judgment was in effect that the legislation on which the indictment is based is not invalid by reason of the provisions of the Constitution of the United States, which vest Congress with power to raise and support armies, and to provide for calling out, organizing, arming and disciplining the militia, and governing such part of them as may be employed in the service of the United States, and that provision which declares that "no State shall without the consent of Congress ... keep troops ... in time of peace."
We are next to inquire whether the 5th and 6th sections of article XI. of the Military Code are in violation of the other provisions of the Constitution of the United States relied on by the plaintiff in error. The first of these is the Second Amendment, which declares: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."
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
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 the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question 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
The plaintiff in error next insists that the sections of the Military Code of Illinois, under which he was indicted, are an invasion of that clause of the first section of the Fourteenth Amendment to the Constitution of the United States which declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
It is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect. A State may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States. The inquiry is, therefore, pertinent, what privilege or immunity of a citizen of the United States is abridged by sections 5 and 6 of Article XI. of the Military Code of Illinois?
The plaintiff in error was not a member of the organized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offence for which he was convicted and sentenced. The question is, therefore, had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State? If the plaintiff in error has any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred. For, as was said by this court in United States v. Cruikshank, 92 U.S. 542, 560, 551, the government of the United States, although it is "within the scope of its powers supreme and above the States," "can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction." "All that cannot be so granted or so secured are left to the exclusive protection of the State."
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 organization 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
In the case of New York v. Miln, 11 Pet. 102, 139, this court said: "We choose rather to plant ourselves on what we consider impregnable positions. They are these: that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States; that by virtue of this, it is not only the right but the bounden and solemn duty of a State to advance the safety, happiness and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated," namely, by the Constitution and laws of the United States. See also Gibbons v. Ogden, 9 Wheat. 1, 203; Gilman v. Philadelphia, 3 Wall. 713; License Tax Cases, 5 Wall. 462; United States v. Dewitt, 9 Wall. 41; United States v. Cruikshank, 92 U.S. 542. These considerations and authorities sustain the power exercised by the legislature of Illinois in the enactment of sections 5 and 6 of Art. XI. of the Military Code.
The argument of the plaintiff in error that the legislation mentioned deprives him of either life, liberty or property without due process of law, or that it is a bill of attainder or ex post facto law, is so clearly untenable as to require no discussion.
It is next contended by the plaintiff in error that sections 5 and 6 of Art. XI. of the Military Code, under which he was indicted, are in conflict with the acts of Congress for the organization of the militia. But this position is based on what seems to us to be an unwarranted construction of the sections referred to. It is clear that their object was to forbid voluntary military associations, unauthorized by law, from organizing or
The plaintiff in error further insists that the organization of the Lehr und Wehr Verein as a corporate body, under the general corporation law of the State of Illinois, was in effect a license from the governor, within the meaning of section 5 of Article XI. of the Military Code, and that such corporate body fell within the exception of the same section "of students in educational institutions where military science is a part of the course of instruction."
In respect to these points we have to say that they present no Federal question. It is not, therefore, our province to consider or decide them. Murdock v. Memphis, 20 Wall. 590.
All the Federal questions presented by the record were rightly decided by the Supreme Court of Illinois.