Stephen Halbrook on Presser

Now, back to the subject of the Second Amendment and whether it authorizes private armies. My last post on the subject discussed the troubling but important case of Presser v. Illinois, which holds that it does not.  The case is troubling because it was written during the Gilded Age, when violence between labor and management was at its height, when management was hiring the Pinkerton Detectives to serve as its de facto private army, but all attempts to suppress private armies were directed only toward military-style companies raised by unions.  I said that Presser raises an important question that I intend to address in succeeding posts -- if the Second Amendment guarantees a right to form private armies, is that right equally guaranteed to all religions and ideologies or only to some.

One person particularly troubled by Presser is Second Amendment advocate Stephen Halbrook.  Halbrook has written a article on Presser that I intend to discuss here.

Halbrook, unsurprisingly, opposes Presser and considers it oppressive.  He begins with some historical background.  Labor strife was becoming intense; people in positions of power felt threatened by it; management responded to the organization of unions by hiring Pinkerton Detectives to act as their private army; the state government responded by organizing the National Guard to suppress strikes.  The union responded by forming its own militia. Halbrook is at some pains to assure us that the union militia was formed in self-defense only and, unlike the forces for management and the state, did not engage in actual violence, and emphasizes the degree of violence used by management.  This led to even greater panic by Illinois' ruling classes and further calls to crack down, and ultimately passage of a law establishing a National Guard and banning all unauthorized paramilitary companies.  Halbrook is outraged, making clear that the only legitimate militia is one that consists of all able-bodied males of military age.  This law was challenged in a test case in court as a violation of the Second Amendment.  The judge ruled in favor of the labor militia.

The opinion was published in the newspaper, but not in any judicial report.  According to Halbrook, the judge held that the right to keep and bear arms was an individual right, rooted in natural right, prior to any constitution, independent of any militia service, and is collective as well as individual.  Furthermore, the militia consisted of all able-bodies males aged 18 to 45 and could not consist of selective individuals.  Halbrook does not dwell at length on what the opinion meant when it said that the right to bear arms applied to people in their collective as well as individual capacity.  However, he does quote Lyman Trumbull, the anti-slavery Illinois Senator as filing a brief that argued for "the right of groups to organize and parade with arms" because " arms are intended for the people in their organized capacity."  In other words, Halbrook appears to argue that Trumbull argued and the court found that the Second Amendment protects the right to form private paramilitaries.

Do I sound skeptical of Halbrook's arguments?  Yes, I am.  Not having seen the court's decision or Trumbull's brief, I do not know whether he is quoting them accurately or in context.  And I have seen enough of insurrectionist interpretations of the Second Amendment in general and Halbrook in particular to be skeptical of their arguments.  They cite the Founders as supporters of modern insurrectionist theories, i.e,, that the purpose of the Second Amendment was intended to preserve the right of citizens to form private armies dedicated to the possible violent overthrow of the US government when actual reading of their sources makes clear that they are citing out of context and distorting the meaning.  Halbrook, for instance, likes to quote Patrick Henry as saying, "The great object is, that every man be armed. . . . . Every one Who is able may have a gun."  He uses this as proof that the Second Amendment is unrelated to militia service and is intended to protect an individual right of gun ownership.  Except that his quote is selectively truncated.  The full quote is quite different:

May we [the states] not discipline and arm them [the militia], as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, &c.? Every one Who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without. limitation or bounds, how will your militia be afraid?

I have previously quoted Federalist Papers the insurrectionists quote equally out of context.  David Frum (alas, no longer linkable) shows how insurrectionists cite Supreme Court Justice Joseph Story out of context to suggest that he believed in an individual right to own guns for the purpose of armed resistance to government.  So excuse me if I am skeptical that Halbrook is accurately quoting either the decision or the brief until I see it for myself.

Be that as it may, the Illinois Supreme Court upheld Illinois' militia law.  It upheld the definition of "militia" as the militia that could be called out by the the (state) government to "execute the laws, suppress insurrection and repeal (sic) invasion," and that to do so, the state must be be able to organize its own militia for its own purposes.  Even Halbrook acknowledges that this is so, but says that a proper militia must consist of all able-bodied men, not just a select few.  He also says that the court "correctly" distinguished between " the collective right to bear arms as a group and the purely individual right to carry arms for self-defense."  In this, Halbrook seems to say that the Illinois Supreme Court was right in saying that the Second Amendment guarantees the individual right to guns in personal self-defense as well as the collective right to "bear arms as a group."  But by the Illinois Supreme Court's interpretation, there is no Second Amendment right to private paramilitaries. Is Halbrook tacitly agreeing here?

In any event, Halbrook eagerly quotes the socialist press in support of his views, that the people must be armed to be free.  Yet another test case was arranged -- the case that went to the U.S. Supreme Court and became Presser.  In the meantime, labor, management, and the National Guard continued to arm further.  When the case went before the Supreme Court, Halbrook eagerly quotes from the brief for the defendant:

"To bear arms", then in the constitutional sense, means to bear the 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 any military code or, the precarious will, and license of whoever may happen to be Governor.

Once again, I would have to see the brief in full and in context to be sure whether the argument here is that the Second Amendment guarantees the right to belong to the militia, or the right to form private militias.  It is not even clear which of these interpretations Halbrook is arguing.  But which is mean is ultimately irrelevant; the Supreme Court rejected the argument. As Halbrook acknowledges, that opinion was written by a judge who had previously prosecuted the Ku Klux Klan for disarming freedmen in the South.  Apparently he distinguished between the right to be armed in individual self defense and the right to form private armies.

Halbrook appears to blame Presser at least in part for the Haymarket Affair, in which police cracked down on a peaceful union protest and unknown persons threw a bomb at the police, killing several. Eight labor leaders were convicted and sentenced to death for the bombing, even though the only evidence against them was their general political views.  Halbrook quotes John Randolph Tucker, a lawyer representing the Haymarket defendants in their appeal as having written of the Second Amendment, "This prohibition indicates that the security of liberty against the tyrannical
tendency of government is only to be found in the right of the people to keep and bear arms in resisting the wrongs of government."  He also quotes Tucker as arguing to the Supreme Court for the first time that the Fourteenth Amendment incorporates the entire Bill of Rights, including the Second Amendment, against the states.  At the same time, Halbrook acknowledges that the right to keep and bear arms was not at issue in the Haymarket case, and that Tucker did not argue that throwing bombs at the police or other acts of labor violence were protected by the Second Amendment.  (They were arguing, instead, that the defendants' criminal procedural rights had been violated, which, indeed, they had).  The Supreme Court rejected the argument.

Halbrook concludes with a general discussion of the ferocity of labor strife and repression at the time, the overwrought hysteria of the upper and middle classes, and the general retrogression of many rights at the time.  This post has gone on longer than I anticipated.  This one has merely described Halbrook's article.  In my next one, I intend to present a wider analysis of it.