6 S.Ct. 580
29 L.Ed. 615
(Cite as: 116 U.S. 252,  6 S.Ct. 580)

PRESSER
v.
STATE OF ILLINOIS.

Filed January 4, 1886.

Error to the Supreme Court of the State of Illinois.

1.  CONSTITUTIONAL LAW--STATUTE VOID IN PART.

A statute that is unconstitutional in part may be sustained in so
far as it is valid, if the part that is valid can be separated from
that which is void.

2.  MILITIA--VALIDITY OF STATE STATUTE.

A state statute prohibiting all bodies of men except those
comprising the regularly organized militia of the state and United
States troops from associating, drilling, or parading with arms in
any city without license from the governor of the state, is valid.

3.  MILITIA--PREVENTING PEOPLE FROM BEARING ARMS.

A state cannot prohibit the people therein from keeping and bearing
arms to an extent that would deprive the United States of the
protection afforded by them as a reserve military force.

*255 **580 Allan C. Story and Lyman Trumbull, for plaintiff in
error.

*260 George Hunt. Atty. Gen. of Illinois, for defendant in error.

WOODS, J.

*253 Herman Presser, the plaintiff in error, was indicted on
September 24, 1879, in the criminal court of Cook county, Illinois,
for a violation of the following sections of article 11 of the
Military Code of that state, (Act May 28, 1879; Laws 1876, 192:) 
'Sec. 5.  It shall not be lawful for any body of men whatever,
other than the regular organized volunteer militia of this state,
and the troops of the United States, to associate themselves
together as a military company or organization, or to drill or
parade with arms in any city or town of this state, without the
license of the governor thereof, which license may at any time be
revoked:  and provided, further, that students in **581 educational
institutions, where military science is a part of the course of
instruction, may, with the consent of the governor, drill and
parade with arms in public, under the superintendence of their
instructors, and may take part in any regimental or brigade
encampment, under command of their military instructor; and while
so encamped shall be governed by the provisions of this act.  They
shall be entitled only to transportation *254 and subsistence, and
shall report and be subject to the commandant of such encampment: 
Provided, that nothing herein contained shall be construed so as to
prevent benevolent or social organizations from wearing swords. 
Sec. 6. Whoever offends against the provisions of the preceding
section, or belongs to, or parades with, any such unauthorized body
of men with arms, shall be punished by a fine not exceeding the sum
of ten dollars, ($10,) or by imprisonment in the common jail for a
term not exceeding six months, or both.'  The indictment charged in
substance that Presser, on September 24, 1897, 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.'  A motion to quash the indictment
was overruled.  Presser then pleaded not guilty, and, both parties
having waived a jury, the case was tried by the court, which found
Presser guilty and sentenced him to pay a fine of $10.  The bill of
exceptions taken upon the trial set out all the evidence, from
which it appeared that Presser was 31 years old, a citizen of the
United States and of the state of Illinois, and a voter; that he
belonged to a society called the 'Lehr und Wehr Verein,' a
corporation organized April 16, 1875, in due form, under chapter
32, Rev. St. Ill., called the 'General Incorporation Laws of
Illinois,' 'for the purpose,' as expressed by its certificate of
association, 'of improving the mental and bodily condition of its
members so as to qualify them for the duties of citizens of a
republic.  Its members shall, therefore, obtain, in the meetings of
the association, a knowledge of our laws and political economy, and
shall also be instructed in military and gymnastic exercises;' that
Presser, in December, 1879, marched at the head of said company,
about 400 in number, in the streets of the city *255 of Chicago, he
riding on horseback and in command; that the company was armed with
rifles, and Presser with a cavalry sword; that the company had no
license from the governor of Illinois to drill or parade as a part
of the militia of the state, and was not a part of the regular
organized militia of the state, nor a part of troops of the United
States, and had no organization under the militia law of the United
States. The evidence showed no other facts.  Exceptions were
reserved to the ruling of the court upon the motion to quash the
indictment, to the finding of guilty, and to the judgment thereon. 
The case was taken to the supreme court of Illinois, where the
judgment was affirmed.  Thereupon Presser brought the present writ
of error for a review of the judgment of affirmance.

*260 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:

'Article 1, s 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 **582
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,' etc.

'Article 1, s 10.  No state shall, without the consent of congress,
keep troops * * * in time of peace.'

'Art. 2 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
fifth and sixth sections of article 11 of the Military Code *261
was forbidden by subdivision 3 of section 9 of article 1, which
declares 'no bill of attainder or ex post facto law shall be
passed,' and by article 14 of Amendments, which provides that 'no
state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States, nor
shall any state deprive any person of life, liberty, or property
without due process of law.'

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 1 of section 8, above quoted, passed the act of May 8,
1792, entitled 'An act more effectually to provide for the national
defense by establishing an uniform militia throughout the United
States,' (1 St. 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 St. 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 St.
268,) and other subsequent acts, now forming 'Title 16, 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 11) 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
*262 repel invasion, and thereby avoid the necessity for
maintaining a large standing army, with which liberty can never be
safe, and that, on the other hand, the effect if not object of the
Illinois statute is to prevent such organizing, arming, and
disciplining of the militia.

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 enrollment 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
enrollment; 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, etc., 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.  **583 On the other hand, it is said that
the state law makes it unlawful for any of its able-bodied
citizens, except 8,000, 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 8,000 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.

*263 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,
95 U. S. 80; Penniman's Case, 103 U. S. 714, 717; Unity v. Burrage,
Id. 459.  See, also, Trade-Mark Cases, 100 U. S. 82.

We are of opinion that this rule is applicable in this case.  The
first two sections of article 1 of the Military Code provide that
all able-bodied male citizens of the state between the ages of 18
and 45 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 8,000
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 instructions 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 *264 Military Code and put
in an act by themselves, and the act thus constituted and the
residue of the Military Code would have been coherent and sensible
acts.  If it be conceded that the entire Military Code, except
these sections, is unconstitutional and invalid, for the reasons
stated by the plaintiff in error, these sections are separable,
and, put in an act by themselves, could not be considered as
forbidden by the clauses of the constitution having reference to
the militia, or to the clause forbidding the states, without the
consent of congress, to keep troops in time of peace. There is no
such connection between the sections which prohibit any body of
men, other than the organized militia of the state and the troops
of the United States, from associating as a military company and
drilling with arms in any city or town of the state, and the
sections which provide for the enrollment and organization **584 of
the state militia, as makes it impossible to declare one, without
declaring both, invalid.

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 fifth and sixth sections of
article 11 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 *265 and
towns unless authorized by law, do not infringe the right of the
people to keep and bear arms.  But a conclusive answer to the
contention that this amendment prohibits the legislation in
question lies in the fact that the amendment is a limitation only
upon the power of congress and the national government, and not
upon that of the state. It was so held by this court in the case of
U. S. v. Cruikshank, 92 U. S. 542, 553, in which the chief justice,
in delivering the judgment of the court, said that the right of the
people to keep and bear arms 'is not a right granted by the
constitution.  Neither is it in any manner dependent upon that
instrument for its existence.  The second amendment declares that
it shall not be infringed, but this, as has been seen, means no
more than that it shall not be infringed by congress.  This is one
of the amendments that has no other effect than to restrict the
powers of the national government, leaving the people to look for
their protection against any violation by their fellow- citizens of
the rights it recognizes to what is called in City of New York v.
Miln, 11 Pet. [102] 139, the 'powers which relate to merely
municipal legislation, or what was perhaps more properly called
internal police,' 'not surrendered or restrained' by the
constitution of the United States.'  See, also, Barron v.
Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com.,
7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819; Com. v. Purchase, 2
Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v.
Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State,
31 Ark. 455.

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 *266 it clear that the sections under
consideration do not have this effect.

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 **585 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 11 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 offense 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 U. S. v. Cruikshank,
92 U. S. 542, 551, 560, 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.'

*267 We have not been referred to any statute of the United States
which confers upon the plaintiff in error the privilege which he
asserts.  The only clause in the constitution which, upon any
pretense, could be said to have any relation whatever to his right
to associate with others as a military company, is found in the
first amendment, which declares that 'congress shall make no laws
* * * abridging * * * the right of the people peaceably to assemble
and to petition the government for a redress of grievances.'  This
is a right which it was held in U. S. v. Cruikshank, above cited,
was an attribute of national citizenship, and, as such, under the
protection of, and guarantied by, the United States.  But it was
held in the same case that the right peaceably to assemble was not
protected by the clause referred to, unless the purpose of the
assembly was to petition the government for a redress of
grievances.  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 *268 authorized by the militia laws of
the United States.  The exercise of this power by the states is
necessary to the public peace, safety, and good order.  To deny the
power would be to deny the right of the state to disperse
assemblages organized for sedition and treason, and the right to
suppress armed mobs bent on riot and rapine.  In the case of **586
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; U. S. v. Dewitt, 9 Wall. 41; U. S.
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 article 11 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 article 11 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 *269 drilling
and parading with arms in the cities or towns of the state, and not
to interfere with the organization, arming and drilling of the
militia under the authority of the acts of congress.  If the object
and effect of the sections were in irreconcilable conflict with the
acts of congress, they would of course be invalid.  But it is a
rule of construction that a statute must be interpreted so as, if
possible, to make it consistent with the constitution and the
paramount law.  Parsons v. Bedford, 3 Pet. 433; Grenada Co. Sup'rs
v. Brogden, 112 U. S. 261; S. C. 5 Sup. Ct. Rep. 125; Marshall v.
Grimes, 41 Miss. 27.  If we yielded to this contention of the
plaintiff in error, we should render the sections in valid by
giving them a strained construction, which would make them
antagonistic to the law of congress.  We cannot attribute to the
legislature, unless compelled to do so by its plain words, a
purpose to pass an act in conflict with an act of congress on a
subject over which congress is given authority by the constitution
of the United States.  We are, therefore, of opinion that, fairly
construed, the sections of the Military Code referred to do not
conflict with the laws of congress on the subject of the militia.

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 11 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.  Judgment affirmed.

