United States v. Cruikshank, 92 U.S. 542 (1875)
The right to keep and bear arms exists separately from the Constitution and is not solely based on the Second Amendment, which exists to prevent Congress from infringing the right.
U.S. Supreme CourtUnited States v. Cruikshank, 92 U.S. 542 (1875)
United States v. Cruikshank
92 U.S. 542
1. Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual, as well as their collective, rights. The duty of a government to afford protection is limited always by the power it possesses for that purpose.
2. There is in our political system a government of each of the several States, and a Government of the United States. Each is distinct from the others, and has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of those governments will be different from those he has under the other.
3. The Government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States.
4. The right of the people peaceably to assemble for lawful purposes, with the obligation on the part of the States to afford it protection, existed long before the adoption of the Constitution. The First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone. It left the authority of the States unimpaired, added nothing to the already existing powers of the United States, and guaranteed the continuance of the right only against Congressional interference. The people, for their protection in the enjoyment of it, must therefore look to the States, where the power for that purpose was originally placed.
5. The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of and guaranteed by the United States. The very idea of a government republican in form implies that right, and an invasion of it presents a case within the sovereignty of the United States.
6. 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 Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.
7. Sovereignty, for the protection of the rights of life and personal liberty within the respective States, rests alone with the States.
8. The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, and from denying to
any person within its jurisdiction the equal protection of the laws, but it adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guaranty.
9. In Minor v. Hoppersett, 21 Wall. 178, this Court decided that the Constitution of the United States has not conferred the right of suffrage upon anyone, and that the United States have no voters of their own creation in the States. In United States v. Reese et al., supra, p. 92 U. S. 214, it held that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. The right to vote in the States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been.
10. The counts of an indictment which charge the defendants with having banded and conspired to injure, oppress, threaten, and intimidate citizens of the United States of African descent, therein named, and which, in substance respectively allege that the defendants intended thereby to hinder and prevent such citizens in the free exercise and enjoyment of rights and privileges granted and secured to them in common with other good citizens by the Constitution and law of the United States, to hinder and prevent them in the free exercise of their right peacefully to assemble for lawful purposes, deprive them of their respective several lives and liberty of person without due process of law, prevent and hinder them in the free exercise and enjoyment of their several rights to the full and equal benefit of the law, prevent and hinder them in the free exercise and enjoyment of their several and respective rights to vote at any election to be thereafter by law had and held by the people in and of the State of Louisiana, or to put them in great fear of bodily harm and to injure and oppress them because, being and having been in all things qualified, they had voted at an election theretofore had and held according to law by the people of said State -- do not present a case within the sixth section of the Enforcement Act of May 31, 1870 (16 Stat. 141). To bring a case within the operation of that statute, it must appear that the right the enjoyment of which the conspirators intended to hinder or prevent was one granted or secured by the Constitution or laws of the United States. If it does not so appear, the alleged offence is not indictable under any act of Congress.
11. The counts of an indictment which, in general language, charge the defendants with an intent to hinder and prevent citizens of the United States of African descent, therein named, in the free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them
respectively as citizens of the United States, and of the State of Louisiana, because they were persons of African descent, and with the intent to hinder and prevent them in the several and free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and secured to them by the Constitution and laws of the United States do not specify any particular right the enjoyment of which the conspirators intended to hinder or prevent, are too vague and general, lack the certainty and precision required by the established rules of criminal pleading, and are therefore not good and sufficient in law.
12. In criminal cases prosecuted under the laws of the United
States, the accused has the constitutional right "to be informed of the nature and cause of the accusation." The indictment must set forth the offence with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged, and every ingredient of which the offence is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading that, where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition, but it must state the species -- it must descend to particulars. The object of the indictment is first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent, and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances.
13. By the act under which this indictment was found, the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, &c. All rights are not so granted or secured. Whether one is so or not is a question of law, to be decided by the court. The indictment should therefore state the particulars to inform the court as well as the accused. It must appear from the indictment that the acts charged will, if proved, support a conviction for the offence alleged.
This was an indictment for conspiracy under the sixth section of the act of May 30, 1870, known as the Enforcement Act (16 Stat. 140), and consisted of thirty-two counts.
The first count was for banding together, with intent "unlawfully and feloniously to injure, oppress, threaten, and intimidate" two citizens of the United States, "of African descent and persons of color," "with the unlawful and felonious intent thereby" them
"to hinder and prevent in their respective free
exercise and enjoyment of their lawful right and privilege to peaceably assemble together with each other and with other citizens of the said United States for a peaceable and lawful purpose."
The second avers an intent to hinder and prevent the exercise by the same persons of the "right to keep and bear arms for a lawful purpose."
The third avers an intent to deprive the same persons "of their respective several lives and liberty of person, without due process of law."
The fourth avers an intent to deprive the same persons of the
"free exercise and enjoyment of the right and privilege to the full and equal benefit of all laws and proceedings for the security of persons and property"
enjoyed by white citizens.
The fifth avers an intent to hinder and prevent the same persons
"in the exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the said United States, and as citizens of the said State of Louisiana, by reason of and for and on account of the race and color"
of the said persons.
The sixth avers an intent to hinder and prevent the same persons in
"the free exercise and enjoyment of the several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana."
The seventh avers an intent "to put in great fear of bodily harm, injure, and oppress" the same persons, "because and for the reason" that, having the right to vote, they had voted.
The eighth avers an intent "to prevent and hinder" the same persons
"in their several and respective free exercise and enjoyment of every, each, all, and singular and several rights and privileges granted and secured"
to them "by the Constitution and laws of the United States."
The next eight counts are a repetition of the first eight, except that, instead of the words "band together," the words "combine, conspire, and confederate together" are used. Three of the defendants were found guilty under the first sixteen counts, and not guilty under the remaining counts.
The parties thus convicted moved in arrest of judgment on the following grounds:
1. Because the matters and things set forth and charged in the several counts, one to sixteen inclusive, do not constitute offences against the laws of the United States, and do not come within the purview, true intent, and meaning of the act of Congress, approved 31st May, 1870, entitled "An Act to enforce the right of citizens of the United States," &c.
2. Because the matters and things in the said indictment set forth and charged do not constitute offences cognizable in the Circuit Court, and do not come within its power and jurisdiction.
3. Because the offences created by the sixth section of the act of Congress referred to, and upon which section the aforesaid sixteen counts are based, are not constitutionally within the jurisdiction of the courts of the United States, and because the matters and things therein referred to are judicially cognizable by State tribunals only, and legislative action thereon is among the constitutionally reserved rights of the several States.
4. Because the said act, in so far as it creates offences and imposes penalties, is in violation of the Constitution of the United States, and an infringement of the rights of the several States and the people.
5. Because the eighth and sixteenth counts of the indictment are too vague, general, insufficient, and uncertain, to afford the accused proper notice to plead and prepare their defence, and set forth no specific offence under the law.
6. Because the verdict of the jury against the defendants is not warranted or supported by law.
On this motion, the opinions of the judges were divided, that of the presiding judge being that the several counts in question are not sufficient in law, and do not contain charges of criminal matter indictable under the laws of the United States, and that the motion in arrest of judgment should be granted. The case comes up at the instance of the United States, on certificate of this division of opinion.
Sect. 1 of the Enforcement Act declares that all citizens of the United States, otherwise qualified, shall be allowed to vote at all elections, without distinction of race, color, or previous servitude.
Sect. 2 provides that if, by the law of any State or Territory, a prerequisite to voting is necessary, equal opportunity for it shall be given to all, without distinction, &c., and any person charged with the duty of furnishing the prerequisite who refuses or knowingly omits to give full effect to this section shall be guilty of misdemeanor.
Sect. 3 provides that an offer of performance in respect to the prerequisite, when proved by affidavit of the claimant, shall be equivalent to performance, and any judge or inspector of election who refuses to accept it shall be guilty, &c.
Sect. 4 provides that any person who, by force, bribery, threats, intimidation, or other unlawful means, hinders, delays, prevents, or obstructs any citizen from qualifying himself to vote, or combines with others to do so, shall be guilty, &c.
Sect. 5 provides that any person who prevents, hinders, controls, or intimidates any person from exercising the right of suffrage, to whom it is secured by the Fifteenth Amendment, or attempts to do so, by bribery or threats of violence, or deprivation of property or employment, shall be guilty, &c.
The sixth section is as follows:
"That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provisions of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court -- the fine not to exceed $5,000 and the imprisonment not to exceed ten years -- and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States. "