United States v. Cruikshank

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United States v. Cruikshank
Seal of the United States Supreme Court.svg
Argued March 30 – April 1, 1875
Decided March 27, 1876
Full case name United States v. Cruikshank, et al.
Citations 92 U.S. 542 (more)
2. Otto 542; 23 L.Ed. 588
The First Amendment right to assembly was not intended to limit the powers of the State governments in respect to their own citizens and the Second Amendment has no other effect than to restrict the powers of the national government.
Court membership
Case opinions
Majority Waite, joined by Swayne, Miller, Field, Strong
Concur/dissent Clifford, joined by Davis, Bradley, Hunt

United States v. Cruikshank, 92 U.S. 542 (1875)[1] was an important United States Supreme Court decision in United States constitutional law, one of the earliest to deal with the application of the Bill of Rights to state governments following the adoption of the Fourteenth Amendment.

The case arose during the Reconstruction Era from the 1872 Louisiana gubernatorial election which was hotly disputed, and led to both major political parties certifying their slates of local officers. At Colfax, Louisiana, tensions climaxed in the Colfax massacre, in which 105 black people and 3 white people were killed. A federal judge ruled that the Republican-majority legislature be seated, but the Democrats did not accept this. Growing social tensions erupted on April 13, 1873, when an armed militia of white Democrats attacked black Republican freedmen, who had gathered at the Grant Parish Courthouse in Colfax, Louisiana, to resist an attempt of Democratic takeover of the offices.[2]

Federal charges were brought against several members of the white insurgents under the Enforcement Act of 1870, which prohibited two or more people from conspiring to deprive anyone of their constitutional rights. Convictions were appealed to the Supreme Court. Among these charges including hindering the freedmen's First Amendment right to freely assemble and their Second Amendment right to keep and bear arms. In its ruling, the Supreme Court overturned the convictions of the white men, holding that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment applies only to state action, not to actions by individual citizens. It said that the plaintiffs had to rely on state courts for protection, although at the time and for decades after these courts never convicted white men for murder of blacks.[3] The ruling meant that freedmen were at the mercy of southern whites.

The Justices stated "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."[4]

Federal troops were withdrawn from the South in 1877, and elections afterward were often fraught with fraud and violence as white Democrats struggled to suppress black Republican voting. From 1890 to 1908, the southern states passed new constitutions or amendments that resulted in disfranchisement of most black people and many poor whites, to prevent the type of Populist coalition that had gained temporary power in the 1880s. This status of political exclusion lasted until after passage of federal civil rights legislation in the 1960s.


Main article: Colfax massacre

On Easter Sunday, April 13, 1873, an armed white militia attacked African-American Republican freedmen, who had gathered at the Grant Parish courthouse in Colfax, Louisiana to protect it from the pending Democratic takeover. Although some of the black people were armed and initially defended themselves, estimates were that 100-280 were killed, most of them following surrender, including 50 being held prisoner that night. Three white people were killed. This was in the tense aftermath of months of uncertainty following the disputed gubernatorial election of November 1872, when two parties declared victory at the state and local levels. The election was still unsettled in the spring, and both Republican and Fusionists, who carried Democratic backing, had certified their own slates for the local offices of sheriff (Christopher Columbus Nash) and justice of the peace in Grant Parish, where Colfax is the parish seat. Federal troops reinforced the election of the Republican governor, William Pitt Kellogg.

Some members of the white mob were indicted and charged under the Enforcement Act of 1870. The Act had been designed primarily to allow Federal enforcement and prosecution of actions of the Ku Klux Klan and other secret vigilante groups in preventing black people from voting and murdering them. Among other provisions, the law made it a felony for two or more people to conspire to deprive anyone of his constitutional rights.[5] The white defendants were charged with sixteen counts, divided into two sets of eight each. Among the charges included violating the freedmen's rights to lawfully assemble, to vote, and to bear arms.[6]

Opinion of the Court[edit]

Majority opinion[edit]

The Supreme Court ruled on March 27, 1876, on a range of issues and found the indictment faulty. It overturned the convictions of the white defendants in the case. Chief Justice Morrison Waite authored the majority opinion.

In its ruling, the Court did not incorporate the Bill of Rights to the states. The Court opined about the dualistic nature of the U.S. political system:

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.[7]

The ruling also stated that all U.S. citizens are subject to two governments, their state government and the other the national government, and then defined the scope of each:

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.[8]

The Court then found that the First Amendment right to assembly "was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone," thus "for their protection in its enjoyment ... the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States".[8]

In addition the Justices held that the Second Amendment restricts only the powers of the national government, and that it does not restrict private citizens from denying other citizens the right to keep and bear arms, or any other right in the Bill of Rights. The Justices held that the right of the people to keep and bear arms exists, and that it is a right that exists without the Constitution granting such a right, by stating "Neither is it [the right to keep and bear arms] in any manner dependent upon that instrument [the Constitution] for its existence." Their ruling was that citizens must look to "municipal legislation" when other citizens deprive them of such rights rather than the Constitution.


The Court also ruled that the Due Process and Equal Protection Clauses applied only to state action, and not to actions of individuals: "The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another."[3]

Dissenting/Concurring opinion[edit]

Justice Clifford also agreed with the other Justices to rescind the indictments but for entirely different reasons: he opined that section five of the 14th Amendment invested the federal government with the power to legislate the actions of individuals who restrict the constitutional rights of others, but he found that the indictments were worded too vaguely to allow the defendants to prepare an effective defense.


African Americans in the South were left to the mercy of increasingly hostile state governments dominated by white Democratic legislatures; neither the legislatures, law enforcement or the courts worked to protect freedmen.[9] As Democrats regained power in the late 1870s, they struggled to suppress black voting through intimidation and fraud at the polls. Paramilitary groups such as the Red Shirts acted on behalf of the Democrats to suppress black voting. From 1890 to 1908, 10 of the 11 former Confederate states passed disfranchising constitutions or amendments,[10] with provisions for poll taxes,[11] residency requirements, literacy tests,[11] and grandfather clauses that effectively disfranchised most black voters and many poor white people. The disfranchisement also meant that black people could not serve on juries or hold any political office, which were restricted to voters; those who could not vote were excluded from the political system.

The Cruikshank ruling also allowed groups such as the Ku Klux Klan to flourish and continue to use paramilitary force to suppress black voting. As white Democrats dominated the Southern legislatures, they turned a blind eye on the violence. They refused to allow African Americans any right to bear arms.

As constitutional commentator Leonard Levy later wrote in 1987, "Cruikshank paralyzed the federal government's attempt to protect black citizens by punishing violators of their Civil Rights and, in effect, shaped the Constitution to the advantage of the Ku Klux Klan." Federal civil rights enforcement was blocked by Cruikshank until 1966 (United States v. Price; United States v. Guest) when the Court vitiated Cruikshank.[12][page needed]

All five Justices in the majority had been appointed by Republicans (three by Lincoln, two by Grant). The lone Democratic appointee Nathan Clifford dissented.

Continuing validity[edit]

Cruikshank has been cited for over a century by supporters of restrictive state and local gun control laws such as the Sullivan Act.

Although significant portions of Cruikshank have been overturned (either explicitly or by implication) by later decisions, most notably the 5–4 District of Columbia v. Heller ruling in 2008, it is still relied upon with some authority in other portions. Cruikshank and Presser v. Illinois, which reaffirmed it in 1886, are the only significant Supreme Court interpretations of the Second Amendment until the murky United States v. Miller in 1939, but both preceded the court's general acceptance of the incorporation doctrine and have been questioned for that reason.

The majority opinion of the Supreme Court in Heller suggested that Cruikshank and the chain of cases flowing from it would no longer be considered good law as a result of the radically changed view of the Fourteenth Amendment when that issue eventually comes before the courts:


This issue did come before the Supreme Court in McDonald v. Chicago, in which the Supreme Court, "reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states."

Regarding this assertion in Heller that Cruikshank said the first amendment did not apply against the states, Professor David Rabban wrote Cruikshank "never specified whether the First Amendment contains 'fundamental rights' protected by the Fourteenth Amendment against state action. ..."[13]

The Civil Rights Cases and Justice Rehnquist's opinion for the majority in United States v. Morrison referred to the Cruikshank state action doctrine.

See also[edit]


  1. ^ 92 U.S. 542 (Full text of the decision courtesy of Findlaw.com)
  2. ^ Ulysses S. Grant, People and Events: "The Colfax Massacre", PBS Website, accessed August 18, 2013.
  3. ^ a b Cruikshank, 92 U.S. 542 at 554
  4. ^ a b Cruikshank, 92 U.S. 542 at 553
  5. ^ Keith, Leanna (2008). The Colfax Massacre. 
  6. ^ Cruikshank, 92 U.S. 542 at 544-546
  7. ^ Cruikshank, 92 U.S. 542 at 549
  8. ^ a b Cruikshank, 92 U.S. 542 at 551
  9. ^ Finkelman, Paul (2006). Encyclopedia of American Civil Liberties. 
  10. ^ Chafetz, Joshua Aaron (2007). Democracy's Privileged Few. 
  12. ^ Leonard W. Levy, et al., eds., Encyclopedia of the American Constitution, MacMillan/Professional Books, 1987.
  13. ^ Rabban, David M. (1999-11-13). Free Speech in Its Forgotten Years, 1870–1920. Cambridge University Press. p. 148. ISBN 9780521655378. Retrieved 29 April 2014. 
  • C. Peter Margrath, Morrison R. Waite, MacMillan, 1963.

External links[edit]