United States V. Cruikshank - Continuing Validity

Continuing Validity

Constitutional commentator Leonard Levy wrote: "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. Cruikshank has also 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 by later decisions, 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. However, the majority opinion of the Supreme Court in District of Columbia v. Heller in 2008 clearly 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:

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Update: this issue did come before the Supreme Court in McDonald vs Chicago, in which the Supreme Court said this:

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 has written that the Cruikshank Court "never specified whether the First Amendment contains 'fundamental rights' protected by the Fourteenth Amendment against state action....”

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