The Right Exists

whether the constitution contains that clause or not.

Illinois–Cook County Circuit Court.
People, Ex. Rel. Bielfeld, v. Affelt.

The act of congress entitled “An act more effectually to provide for the national defence, by establishing a uniform militia throughout the United States,” is a full  exercise of the constitutional power of congress to regulate, organize, arm and disciple the militia, covering this entire field of legislation, and thereby excluding all conflicting state legislation upon the same subject matter.

The provision of Section 5 of the Military Code of Illinois, that “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,” are in conflict with said act of congress, and void.

For the relator, Rubens & Hiestand and Wolford N. low.
For the people, Col. Cameron and Royers & Appleton.

Opinion by Barnum, J.

This case arises upon habeas corpus, upon the petition of Frank Bielfeld, and involves the validity of Sections 5 and 6 of Articles XI., of “An act to provide for the organization of the state militia, and, entitled ‘The Military Code of Illinois,’” in force July 1st, 1879: Bradwell’s Laws of 1879, p. 149. Those sections, so far as applicable to the present case, read as follows:

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.

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 $10, or by imprisonment in the common jail for a term not exceeding six months, or both.

“The regular organized volunteer militia of this state” referred to in Section 5, is unquestionably the same body mentioned as follows in Section 3 of Article I., of the act:

“The active militia shall be designated as the ‘Illinois National Guard,’ which shall consist of not more than eight thousand men and officers, to be divided into not more than three brigades, each to be commanded by a brigadier-general, and shall be recruited by volunteer enlistments.”

It is to these eight thousand volunteers this “Act to provide for the organization of the state militia” is almost exclusively devoted. Of the fifty-five sections contained in the act, fifty-three relate to enlisting, officering, organizing, arming, drilling, paying, maintaining and regulating this volunteer force, styled by the act “The Illinois National Guard.”

The admitted facts of this case are these: On the 16th day of April, 1875, an association was duly incorporated under the name of “The Lehr und Wehr Verein of Chicago,” in accordance with the provisions of “An act concerning corporations,” in force July 1st, 1872. Said association was formed, as stated in the certificate then filed in the office of the secretary of state, “for the purpose 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 illustrated in military and gymnastic exercises.

The relator and the men so parading under his command belonged neither to the “Illinois National Guard,” nor to the troops of the United States, nor had they any license from the governor within the contemplation of Section 5, Article XI., of the recent militia law.

The relator justifies the admitted violation of that section by himself and his associates on the ground that it invades their constitutional rights, not merely as corporators of the “Lehr und Wehr Verein,” but as freemen, citizens of Illinois, and citizens of the United States. The violated statute is arraigned as itself a violation of many and most cherished provisions of both the state and federal constitutions. Foremost of these advanced in the argument is that part of the national bill of rights embodied in the second amendment to the constitution of the Unite States, viz.:

“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.”

While freely conceded that this is a guaranty restraining the general government only, and not the states, from infringing the right in question, it is, nevertheless, claimed to be an explicit recognition of the right as one of the chief attributes and muniments of citizenship of a free republic. Considered by our ancestors too momentous to be left to any implication, however clear to the luminous mind of Hamilton, they preferred with Jefferson to have “a brace the more,” and therefore, in their extreme but sublime jealously of undefined power, they put into the bill of rights, by an amendment framed expressly for the purpose, this purest, most enduring and imperishable stanchion of the whole governmental fabric.

Not that the right to keep and bear arms owed its origin to the constitution, for none knew better than the framers of that instrument that the right was pre-existent, and older than any and all constitutions. Therefore, as maintained in the argument, those profound and erudite statesmen chose for their purpose, not the language by which some new boon was to be created or bestowed, but that by which an old and immemorial right was to be recognized and fortified–”the right of the people * * * shall not be infringed.”

Blackstone says: “The principle aim of society is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature.” That those absolute rights are the right of personal security, the right of personal liberty, and the right of private property; that these are “usually summed up in one general appellation, and denominated the natural liberty of mankind,” liberty “more generally talked of,” he says, “than thoroughly understood.” “auxiliary” and “subordinate” to these, he continues, are certain other rights, which serve principally as outworks, or barriers, to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and private property: 1 Blackstone Com. 141.

Among these auxiliary rights and outworks of natural liberty, the distinguished commentator ranks, along with the “regular adminstration of justice” and the “right of petition,” the co-equal “right of having and using arms for self-preservation and defence.” The context leaves no doubt of the author’s meaning, that the people’s right to keep and use arms, was a barrier against the encroachments of rulers as well as others. For he says, referring to the absolute rights of personal security, personal liberty, and private property: “So long as these remain inviolate, the subject is perfectly free, for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object on which it can possibly be employed.”

The right of the citizens to keep and bear arms,” says Justice Story, “has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

Just a hundred years before the ratification of our federal constitution, the English bill of rights, containing this important guaranty of the right to bear arms, became a law of parliament, which, to quote its exact language, recognizes “all and singular the rights and liberties asserted and claimed in the said declaration to be true, ancient an indubitable rights of the people of this kingdom:” Creasy on the English Const., page 289.

Let it be here observed, too, that the great auxiliary right to bear arms, so eulogized by Blackstone and Story, was not referable or secondary to any measure of state policy, such as the creation of a well-regulated militia, but existed for the individual subject’s own and only sake. There is not a word in the English bill of rights concerning the militia. It was “An act for declaring the rights and liberties of the subject,” and one of the insidious methods by which, it is alleged, King James II. and his evil counselors were endeavoring to subvert and extirpate the laws and liberties of the kingdom was: “By causing several good subjects, being Protestants, to be disarmed  at the same time when Papists were both armed and employed, contrary to law.”

If, then, the arms-bearing right of the people is, as Blackstone says, an integral and inseparable part of their absolute rights as individuals, it follows that any and every constitution which assumes to protect life, liberty and property, necessarily insures the right of all the people to keep and bear arms, unless the contrary intention is clearly expressed, Hence the right is in nowise dependent upon the clause asserting that 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 right exists whether the constitution contains that clause or not. Our state constitution does not contain it, but nevertheless includes the right as part of the personal outfit of every freeman when it says, almost in the very language of the Declaration of Independence:

“All men are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men:” Bill of Rights, Section 1.

In our two previous constitutions of 1818 and 1848, this clause of the bill of rights asserted in terms, the right of “defending” as well as enjoying life and liberty. We are not, however, to infer from the dropping of a word, that the right of defending life and liberty is gone. Neither are we to infer that the right of bearing arms is gone because no express mention of it is made in our constitution. That might be the case, to quote the words of a most eminent jurist, were it not that “some things are too plain to be written” or “if this charter of state government, which we call the constitution, were all there was of constitutional command.” But “these instruments,” he says, “measure the power of the rulers; they do not measure the rights of the governed:” Cooley’s Constitutional Limitations 37. “Neither military nor civil law,” says the same high authority, “can take from the citizen the right to bear arms for the common defence. This is an inherited and traditionary right, guaranteed, also, by state and federal constitutions. But it extend no further than to keep and bear those arms which are suited and proper for the general defense of the community against invasion and oppression, and it does not include the carrying of such weapons as are especially suited for deadly individual encounters. Therefore, the state laws which forbid the carrying of such weapons concealed, are no invasion of the rights of citizenship:” Cooley on Torts 301. This passage clearly defines the right of the people to keep and bear arms as one to be exercised in their collective, no less than in their individual capacity, and is descriptive at once of the “arms” intended by the constitution, and of the uses to which they may be constitutionally put.

“To bear arms,” then, in the constitutional sense, it was forcibly contended at the argument, means to bear weapons of civilized warfare, and to become instructed in their use. But this is drilling, officering, organizing; therefore, these are claimed to be part and parcel of the same impregnable right, and placed by the supreme law of the land beyond the reach of infringement by the provisions of our military code or the precarious will and license of whoever may happen to be governor.

There being no clause in our state constitution coupling the advantages of a well-regulated militia with the right to bear arms, it is denied that that right can be even plausibly conditioned or circumscribed to the bare needs of such an institution. On the contrary, an unconditioned and undeniable right is claimed, militia or no militia. Therefore, it is argued, men are not bound to join the militia, much less “The Illinois National Guard,” in order to enjoy this common right, and if they were, it could only be when the ranks were opened wide enough to admit all who are entitled to that right, precisely as our state constitution intended.

Article XII. of that instrument, in exact conformity with the act of congress on this subject, provides:

“The militia of the State of Illinois shall consist of all able-bodies male persons, residents in the state, between the ages of eighteen and forty-five, except such persons as now are, or hereafter may be, exempted by the laws of the United States or of this state.”

This was the “militia” of the federal constitution and of the days of 1776, for in that year the Virginia bill of rights, framed by some of the very authors of the constitution, declared: “A well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state.”

Here a transition is made in the arguments to another class of constitutional objections, which I shall briefly enumerate, that the subject may be presented in its most important bearings. . .

. . . . For all these repugnances of our statute to the acts of congress, I must pronounce the former unauthorized legislation in all its parts. Let the relator be discharged.

[The Criminal Law Magazine. A Bi-Monthly Periodical Devoted to the Interests of Bench and Bar in Criminal Cases. CONTAINING Original articles on timely topics, full reports of important cases, and a digest of all recent criminal cases, American and English. EDITORS: STEWART RAPALJE, of the New York Bar. ROBERT L. LAWRENCE, of the Jersey City Bar. Ignoranlia legia neminem excusal.” VOLUME I. JERSEY CITY:  Frederick D. Linn & Co., Law Book Publishers. 1880.]