cerpt from it just simply to show the history of the thing and it says on page 157 of that report-it is reported, by the way, in 2 Humphrey 154 in the Tennessee Reports on page 157. I read:

The evil that was produced by disarming the people in the time of James II, was that the King, by means of a standing army quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel, and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the King to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands. No private defence was contemplated, or would have availed anything. If the subjects had been armed, they could have resisted the payment of excessive fines, or the infliction of illegal and cruel punishments. When, therefore, Parliament says that "subjects which are Protestants may have arms for their defence, suitable to their condition, as allowed by law," it does not mean for private defence, but, being armed, they may as a body rise up to defend their just rights, and compel their rulers to respect the laws. This declaration of right is made in reference to the fact before complained of, that the people had been disarmed, and soldiers had been quartered among them contrary to law. The complaint was against the government. The grievances to which they were thus forced to submit were for the most part of a public character, and could have been redressed only by the people rising up for their common defence, to vindicate their rights.

I quote from this case because it is an often quoted case in itself. Mr. Bennett raised a question of whether the right to have and bear arms is a basic right. I would like to refer to that just a minute, sir, and I quote from Blackstone. You, as a lawyer, know that Blackstone was the origin of the law in all of our States except one and we look back on him and it, of course, does go to the historical background of this matter.

I refer to a book called Jones' Blackstone and in chapter 1, which is entitled "Of the Rights of Persons," and then there is a subchapter entitled "Of the Absolute Rights of Individuals." And in section 199 of this Blackstone appears "Right to bear arms," and I read:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute, and it is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Now the comment was made here that the right to have and bear arms is not a basic right and I again call your attention to section 200, which is a summary of the chapter and it says:

In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties, more generally talked of than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free employment of personal security, of personal liberty, and of 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 upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in its full vigor and limits, certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the

right of petitioning the King and Parliament for redress of grievances; and lastly, to the right of having and using arms for self-preservation and defense.

I cite this to show that the right to have and bear arms was considered a basic right under the old English common law.

Again to come back to this subject of whether the right under our second amendment is a right which is only to the militia as an organization and not to the individual, I would like to cite the U.S. Supreme Court case entitled United States of America v. Jack Miller. This case is found in 83 Law Edition on page 1206 and it was decided in 1939 and this is a case which upheld the National Firearms Act. I cite it to show that the U.S. Supreme Court in this case considered and recognized the reason for the militia and how it originated in America and I would like to review this just very briefly.

Of course, it had been contended that the Constitution prevented the accused in this case or gave him the right to have a sawed-off shotgun. That is what he had, which was declared illegal under the National Firearms Act and so the Court there says:

The Constitution as originally adopted granted to the Congress power-"To provide for calling forth the Militia to execute the Laws of the Union—”

and I won't read the whole Constitution provision, and going onWith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the second amendment were made. It must be interpreted and applied with that end in view.

The militia which the States were expected to maintain and train is set in contrast with troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the militia-civilians primarily, soldiers on occasion.

The significance attributed to the term militia appears from the debates in the convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

This was the point I wanted to stress. Then this U.S. Supreme Court case goes on and quotes from the American Colonies, a history by Osgood and I quote:

In all the colonies, as in England, the militia system was based on the principle of the size of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence. The possession of arms also implied the possession of ammunition, and the authroities paid quite as much attention to the latter as to the former. A year later

this was in 1692—

it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony (Massachusetts).

I'm going to skip over to a little bit more. It came up in the Massachusetts General Assembly, where they provided that every man individually had to supply his arms. This was an individual thing, not by the militia as a whole. The same thing applied in New York. They had a similar requirement, and in Virginia it was very similar to that, too.

And so this U.S. Supreme Court case will show you that our own Supreme Court, which of course should be the last authority in the

land, recognizes that this was an individual thing, that the militia were individuals and the right to have and bear arms was an individual right at that time.

Now the other matters I believe have been ably covered by the two Congressmen who have appeared here before you today and it would be merely reiterating our own beliefs and our stands were I to go into that again. I don't feel it is necessary to be that repetitive, but I would like to say that I am entirely in accord with what you have said, sir, in your statement of December 10, 1963.

You indicated in that statement that the policing of the situation should more properly be in the hands of States rather than in the Federal Government.

The CHAIRMAN. The point I was trying to make there-Mr. Bennett and I were talking about the uniformity-was the fact that if every State had the type of law to get at this particular problem, then the justification for Federal legislation would diminish. But, there has been a lot of testimony, of course, that we can't hope for that, but I am not so sure. I think in many cases we could get great progress in uniformity of State laws.

Judge RUMMEL. We, as an organization, have supported the Dodd bill. As you know our people worked with Senator Dodd and his committee for many, many months, even prior to this very recent tragedy. We think that it is a good bill as it is now amended. As a matter of fact, it in itself is an amendment to the Federal Firearms Act and it does restrict in a reasonable way the mail-order business in guns.

We have supported that, and we feel that is a proper thing. However, we do very seriously doubt the constitutionality of many of the proposals that have been made. After all, I think we can all agree Congress only has those powers which have been given to it by the Constitution. It has no general police power

The CHAIRMAN. I want to suggest some days I wish they hadn't given us those powers.

Judge RUMMEL. It has no police power, I think you know that, and so to justify any acts, they do have to come under the power of interstate commerce and the right to tax. I think we should very seriously consider any laws which might be a detriment to this whole program.

The CHAIRMAN. Judge, don't you think there is another issue here, to get down to the hard core. What bothers a lot of us in Congressand I am sure members of this committee thoroughly agree is that if we can do something to stop the unlawful use of guns, we ought to do it. It is our responsibility. On the one hand, in order to accomplish this, you sometimes create a new mass of Federal regulation and intrusion into the private rights of citizens, who are not using these guns for criminal weapons. The proper use of a weapon is just as important in this country as the improper use. Of course, the problem is how to achieve a wise and reasonable balance, isn't it? Judge RUMMEL. I think that is correct.

The CHAIRMAN. Perhaps, too, there should be greater stress on the proper use of weapons. Your association has done a great deal in this area, but education in the proper use of a firearms would save thousands of lives.

Judge RUMMEL. That is correct.

The CHAIRMAN. Thousands of lives.

Judge RUMMEL. Senator, for the purpose of the record, I would also like to cite the old case of Presser v. the People of the State of Illinois, which was decided by our Supreme Court of the United States in 1886 and which held that the first 10 amendments and specifically the second amendment was only a restriction on the Federal Government and Congress and not on the States. So it puts the States in a much better position to legislate than the Federal Government would be and this proposition has been accepted and adopted in many decisions throughout this country. I might review that a little bit more extensively, if you care to have it.

The CHAIRMAN. Well, may we put that in the record and then we will have it?

Judge RUMMEL. All right, but it definitely holds that this is the restriction on the right of the Federal Government and not on the States. It does not apply to the States.

(The citation follows:)

[29 L. ed. 615]

HERMAN PRESSER, Plff. in Err.,

v.

PEOPLE OF THE STATE OF ILLINOIS.

(See S. C. Reporter's ed. 252-169.)

Constitutional law-validity of the Military Code of Illinois-construction of. 1. Statutes must be interpreted, if possible, so as to make them consistent with the Constitution and the paramount law.

2. Statutes that are constitutional in part only will be upheld so far as they are not in conflict with the Constitution, provided the parts are separable. 3. The States have the power to control and regulate the organization, drilling and parading of military bodies and associations, except when they are authorized by the militia laws of the United States.

4. The Second Amendment to the Constitution is a limitation only upon the power of Congress and the National Government, and not upon that of the States.

5. Citizens of the United States have no right to associate together to drill or parade with arms, independent of any Act of Congress or State law, within the protection of the first section of the Fourteenth Amendment to the Constitution.

6. The fifth and sixth sections of article XI, of the Military Code of Illinois, which forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, are not in conflict with the Constitution of the United States.

[No. 73.]

Argued Nov. 23, 24, 1885. Decided Jan. 4, 1886.1

IN ERROR to the Supreme Court of the State of Illinois.

The history and facts of the case appear in the opinion of the court.
Messrs. Allen C. Story and Lyman Trumbul, for plaintiff in error:

The Act in question is in direct conflict with subdivisions 12, 14, 15, 16, and 18 of section 8, article 1 of the Federal Constitution, and the various Acts of Congress upon the subject of "militia."

Houston v. Moore, 5 Wheat. 1 (18 U.S. bk. 5, L. ed. 19); Gibbons v. Ogden, 9 Wheat. 209 (22 U.S. bk. 6, L. ed. 73) Passenger Cases, 7 How. 283 (49 U.S. bk. 12 L. ed. 702); Hannibal & St. J. R. R. Co. v. Husen, 95 U.S. 465 (Bk. 24, L. ed. 527); McCulloch v. Maryland, 4 Wheat. 316 (17 U.S. bk. 4, L. ed. 579); Sturges v. Crowninshield, 4 Wheat. 122 (17 U.S. bk. 4, L. ed. 529); Story, Const. sec. 1208; Opinions of Justices, 14 Gray, 614; McCall's Case, 5 Phil. Rep. 259;

1 Emphasis in boldface italic supplied by Judge Rummel.

Cooley, Const. Lim. 177, n., 178, 179; U.S. v. Cruikshank, 92 U.S. 552 (Bk. 23, L. ed. 591); People v. Cooper, 83 Ill. 585; Livingston v. Van Ingen, 9 Johns. 507; Gilman v. Philadelphia, 3 Wall. 713 (70 U.S. bk. 18, L. ed. 96); Martin v. Mott, 12 Wheat. 19 (25 U.S. bk. 6, L. ed. 537).

It is also in conflict with subdivision 3, section 10, art. 1, Federal Constitution. Cases above cited: Luther v. Borden, 7 How. 1 (48 U.S. bk. 12, L. ed. 581); Mills v. Martin, 10 Johns. 7; Crandall v. Nevada, 6 Wall. 35 (73 U.S. bk. 18, L. ed. 745) ; Texas v. White, 7 Wall. 700 (74 U.S. bk. 19, L. ed. 227); Green v. Biddle, 8 Wheat, 1 (21 U.S. bk. 5, L. ed. 547); Poole v. Fleeger, 11 Pet. 185 (36 U.S. bk. 9, L. ed. 680).

It is also in conflict with article II, amendments to Federal Constitution. See authorities first above cited.

It is also in conflict with the Fourteenth Amendment to the Federal Constitution.

Slaughter-House Cases, 16 Wall. 74 (83 U.S. bk. 21, L. ed. 408); U.S. v. Cruikshank, 92 U.S. 543 (Bk. 23, L. ed. 588); Ward v. Maryland, 12 Wall. 430 (79 U.S. bk. 20, L. ed. 452); Crandall v. Nevada, 6 Wall. 49 (73 U.S. bk. 18, L. ed. 749); Lemmon v. People, 20 N.Y. 607; Willard v. People, 4 Scam. 461; Dred Scott v. Sandford, 19 How. 580 (60 U.S. bk. 15, L. ed. 773).

It is also in conflict with subdivision 3 § 9, art. 1, Fed. Const.

Calder v. Bull, 3 Dall. 390 (1 U.S. bk. 1, L. ed. 650) ; Fletcher v. Peck, 6 Cranch, 87 (10 U.S. bk. 3, L. ed. 162); Cummings v. Missouri, 4 Wall. 277 (71 U.S. bk. 18, L. ed. 356); Sheppard v. People, 25 N.Y. 406; Lapeyre v. U.S. 17 Wall. 206 (84 U.S. bk. 21, L. ed. 610); Carpenter v. Pennsylvania, 17 How. 456 (58 U.S. bk. 15, L. ed. 127); Ex Parte Garland, 4 Wall. 333 (71 U.S. bk. 18, L. ed. 366). The power of arming, organizing and disciplining the militia, being confided by the Constitution to Congress, when Congress acts upon the subject and passes a law to carry into effect the constitutional provision, such action excludes the power of legislation by the States on the same subject. Congress has exercisd its functions and covered, so far as it deemed expedient, the ground assigned to it by the Constitution.

Act of May 8, 1792, 1 Stat. at L. 271, R. S. § 1625 et seq.; Houston v. Moore, 5 Wheat. 24 (18 U.S. bk. 5, L. ed. 24). There is nothing in the case of Sturges v. Crowningshield, in conflict with this doctrine.

The Fourteenth Amendment makes all persons born or naturalized in the United States citizens of the United States and of the State wherein they reside, and then declares that no State shall make any law which shall abridge the privileges and immunities of citizens of the United States. The citizen has secured to him the right to keep and bear arms as part of the militia which Congress has the right to organize, and to arm and drill in companies. U.S. v. Cruikshank, 92 U.S. 552 (Bk. 23, L. ed. 591).

The organization of the Illinois National Guard, provided for by the Illinois Code, does not conform to the Act of Congress. It does not constitute any part of the militia upon which the president may call to enforce the laws of the United States, when resisted by combinations too powerful to be overcome by the ordinary course of judicial proceedings.

Act, Feb. 28, 1795, 1 Stat. at L. 424; R. S. §§ 5298, 5299

It is purely a state force, sworn to serve the State in its military service, subject at all times to the orders of the Governor, prohibited from leaving the State without his consent under a penalty; and, so far from being a part of the militia organized in pursuance of the Act of Congress, the Illinois National Guard, in its organization, arming, and the purpose for which it is organized, contravenes the spirit and intent of the national Act, and if permitted to stand, it prevents the organization, arming and disciplining of all the male citizens of the State as Congress has prescribed.

Mr. George Hunt, Atty-Gen. of Illinois, for defendants in error:

The Federal Constitution does not take from a State its right to call out the militia for any or all lawful purposes for its own protection and preservation. Without depriving a State of any rights, it vests in Congress the power to provide for using the militia for the purposes therein enumerated and none other. The power of the State to provide for the organization of its own militia is not derived from the Constitution of the United States. The power existed and was exercised before the adoption of the Constitution; and its exercise by the States is not prohibited by that instrument. It is only such legislation as is repugnant to the authority of Congress that must give way, even when the authority conferred upon Congress is being exercised.