Before Heller: The Forgotten Cases

After the Civil War, the Fourteenth Amendment (1868) promised that no state would abridge the privileges or immunities of citizens or deny any person due process or equal protection of the laws. Whether that meant the Bill of Rights now bound the states was an open question.

In United States v. Cruikshank (1876), the Supreme Court considered federal charges arising from the Colfax Massacre in Louisiana, a deadly attack on Black citizens during Reconstruction. Among other things, the indictment charged a conspiracy to deprive victims of their right to bear arms.

The Court held that the First and Second Amendments restrained only the federal government, not private individuals or the states. The decision has long been criticized for leaving freedmen with little federal protection at a dangerous moment in American history.

A decade later, Presser v. Illinois (1886) involved a man who led an armed group marching through Chicago in violation of a state law against unlicensed private military organizations. The Court upheld the state law, again reasoning that the Second Amendment limited only Congress.

Presser did include a notable observation: states could not prohibit people from keeping and bearing arms so as to deprive the United States of its resource for maintaining public security. But the main holding stood for generations.

Over the twentieth century, the Court applied most of the Bill of Rights to the states through the Fourteenth Amendment's Due Process Clause — a process called incorporation. The Second Amendment, however, was not formally incorporated until McDonald v. City of Chicago (2010).

McDonald explained that Cruikshank and Presser had been decided before the modern incorporation doctrine developed, and held that the right recognized in Heller applies to the states. Knowing this history makes clear just how recent much of modern Second Amendment law really is.