Wednesday, July 8, 2009

The Lehr-und-Wehr Verein and the Second Amendment

The 1870s were a period of increasingly violent clashes between workers and employers in Chicago and throughout the U.S. The eight-hour workday movement was emboldened by weak economic conditions prevailing throughout most of that decade, and anarchists began publicly advocating resistance against industrialists and strike-breakers. Employers hired armed guards, including Pinkerton detectives, to defend their personal and business interests, and state governments began forming organized militias to put down insurrections. In response, German socialists and anarchists in Chicago formed the Lehr-und-Wehr Verein.

A rough translation of Lehr-und-Wehr Verein is “Education and Resistence Association,” and the group’s state charter, signed by the governor of Illinois in April, 1875, indicated
The Association is formed for the purpose of improving the mental and bodily condition of its members so as to qualify them for the duties of citizens of the Republic. Its members shall therefore obtain in the meetings of the Association a knowledge of our laws and political economy, and shall also be instructed in military and gymnastic exercises.
There were four Lehr-und-Wehr Verein companies in Chicago which met weekly for drill exercises and instruction. Once each month, all four groups converged at Neff’s Hall, a saloon and assembly hall located at 58 Clybourn (now numbered 1265 N. Clybourn Ave.), which is the building pictured above. Their marching uniforms consisted of blue shirts, black hats, and white rucksacks, paired with light-colored linen pants. At socialist picnics, outings, and conventions, they held shooting contests and mock battles, and marched in columns four men wide, carrying a variety of firearms, everything from squirrel pellet guns to .45 caliber rifles and .44 caliber revolvers. Besides support they received directly from socialist political parties, the organization held fundraisers throughout the year, using monies raised to purchase additional armaments.

(Pictured: a Lehr-und-Wehr Verein drill. Image courtesy of Northwestern University Law School).

While socialists and anarchists had long argued that working men needed to arm themselves to enforce their rights, the formal organization of the Lehr-und-Wehr Verein may have been precipitated by the establishment of the Illinois National Guard in 1874. Though privately financed (primarily by wealthy Chicagoans) the Guard was the first organized militia in the state. In March, 1875, one month before the Lehr-und-Wehr Verein was chartered, the first regiment of the Illinois National Guard mustered with arms at a socialist riot in front of city hall.

While the Verein’s state charter was anodyne, its obvious purpose was to protect socialist interests in battles with business interests, police, and the National Guard. In a letter to the Tribune, Hermann Chilz, secretary of the organization wrote explicitly:
The preparations of the workingmen…are simply a necessity in order to protect themselves against future murderous attacks like the one which was made by the police last year against peaceably assembled workingmen.
Likely Chilz is referring to an infamous case during the Great Strike of 1877 in which, during negotiations between Furniture Workers’ Union members and their employers on W. 12th Street, Chicago police broke down the door and began shooting and beating workers as they tried to escape.

Similarly, Chicago’s socialist newspaper the Arbeiter-Zeitung wrote in June, 1875,
Inasmuch as the bourgeoisie of this place are building up a servile militia with its powers directed against the working man, the workingmen, man for man, should join the … organization and willingly give the few dollars necessary to arm and uniform themselves. When the workingmen are on their guard, their just demands will not be answered with bullets.
The sight of armed groups of socialists marching through the streets of the city alarmed many Chicagoans, especially the wealthy, who had more to lose should a general insurrection arise. They perceived the Lehr-und-Wehr Verein as a threat against law and order, and against their life and property. The aforementioned Great Strike of 1877, although it had lasted only a week, showed that collaborative protest by the working classes was possible and could bring the country’s economy to a standstill. During the strike, Marshall Field and other merchants armed their employees and George Pullman organized a “Law and Order League,” which roamed through the city’s neighborhoods armed with rifles. Armed vigilante groups and private and battalions of Civil War veterans also worked to disperse assemblies of striking workers. Labor historian Paul Avrich writes that for business leaders,
…the chief lesson of the strike was the need for a stronger apparatus of repression. Along with press and pulpit, they called for a reorganization of the military forces, so that in the future they might be able to deal more effectively with popular outbursts. The erection of government armories in the centers of American cities dates from this period. State militias were reorganized and strengthened. Special manuals on riot duty and street fighting became prescribed reading for local and federal forces. In Chicago, a Citizens’ Association, spurred by Marshall Field, was established “to fight communists.” The police began to conduct themselves in the matter of an army, drilling regularly in street maneuvers and learning to “handle themselves like soldiers.” [The Haymarket Tragedy, p. 35]
The fear of armed socialist groups is reflected in the following poem, printed in an 1878 weekly version of the Arbeiter-Zeitung:

Our Dear Police
(by Gustav Lyser)

They say our dear Chicago police
Are pretty sore these days,
It seems the Lehr-und-Wehr Verein
Has led their minds astray

It teaches constitutional truths
For all – not just th’ elite,
And that no one the right to assemble
May trample under his feet!

It teacher what is guaranteed,
And read it each man might
To liberty, life, pursuit of happiness
We have a common right!

It teaches how we must defend
‘Gainst tyrrany’s reckless flood;
That freedom much from us demands –
May e’en demand our blood!

That’s why our dear Chicago police
Are pretty sore these days;
For such a Lehr-und-Wehr Verein
Has set their fears ablaze.

As the poem suggests, the issue quickly become a constitutional question. The second amendment to the Constitution reads:
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.
In the 19th century, the “militia”, as defined in both federal and state code, included all (white male) citizens; hence, one reading of the the second amendment is that it precludes the government from disarming its citizens, who have the right use force to defend their freedom from tyrants or foreign invaders. This is certainly how the Lehr-und-Wehr Verein read the amendment. At the same time, courts of the era also interpreted the Bill of Rights to apply narrowly to the federal government exclusively; thus, the U.S. Congress could make no law infringing the right to bear arms, but the states could.

In May, 1879, Illinois did just that, passing the Militia Bill, sections 5 and 6 of which read:
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….Provided, that nothing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords.

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 ten dollars, ($10,) or by imprisonment in the common jail for a term not exceeding six months, or both.
The statute, with most of the same language (including the amusing bit about wearing swords), is still on the Illinois books today (See Sections 94 and 101 here; 130 years later, the original $10 fine has been increased to “not less than $20 nor more than $100”).

The 1879 Militia law was specifically aimed at armed socialists groups like the Lehr-und-Wehr Verein, the membership of which had grown dramatically since the Great Strike. While no reliable sources exist, the total number of Lehr-und-Wehr Verein members likely exceeded 1,000 at its peak, and may have been as high as 3,000. Verein members saw in the law’s provision for licenses granted by the governor an attempt by the state to monopolize the use of force, and to direct it against groups with little political power, especially workers.

On July 2, 1879, the new law was put to the test when a group of Lehr-und-Wehr Verein, led by their captain, Frank Bielefeldt, marched with arms through Chicago. Bielefeldt was arrested and charged with violation of the militia law. The case was heard in Cook County Criminal Court in late July, and Bielefeldt triumphed. The court held that the right to bear arms was an inherent, inalienable right, independent of any law passed in Illinois or elsewhere, and that arming oneself is “an unconditioned and undeniable right, militia or no militia.”

The Judge in the case also argued that, while the Second Amendment (and other aspects of the Bill of Rights) had not applied to state laws before the Civil War, this was no longer the case after the passage of the 14th amendment in 1868, the text of which reads (in part): “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The right to bear arms being one of the privileges accorded to U.S. citizens by their constitution, the states were thus restricted from abridging that right.

The court further agreed with the socialists that the militia law unnecessarily politicized self-defense, arguing that the statute “empowers the Governor in the granting or withholding of licenses to make odious discriminations based on politics, religion, class interests, nationality, place or similar considerations repugnant to the genius of our institutions and subversive of constitutional equality.”

The case, which was decided 2-1, was a startling victory for the Lehr-und-Wehr Verein, and inspired the conservative Tribune to attribute to the decision epithets including “irrelevant” and “puerile;” nevertheless, its effect was to be short-lived. In the fall of 1878, the Illinois Supreme Court judged in a separate case that the Illinois National Guard, not the public at large, was the state militia; as a consequence, Governor Shelby Cullom announced that the militia law would be sternly enforced against the Lehr-und-Wehr Verein: no one but the militia would be allowed to parade with arms without the Governor's permission. However, since the ultimate question of constitutionality had still not been decided by the courts, the Lehr-und-Wehr Verein prompty offered an opportunity for them to do so.

On September 24, 1879, Hermann Presser, mounted on horseback, led a march in Chicago of 400 Lehr-und-Wehr Verein members carrying firearms. Presser was arrested, convicted in circuit court, and fined the statutory $10. The case was appealed to the Illinois Supreme Court, which confirmed Presser’s conviction, at which point the case was again appealed the U.S. Supreme Court.

The Court took its time, and did not hear oral arguments until 1885. In the mean time, the Lehr-und-Wehr Verein continued to hold meetings and drills, but did not march publicly without permission (in one instance in 1880, the Governor did grant permission to the group for a public display). The growing anarchist movement intertwined with the Verein’s membership, and many of the city’s foremost firebrands, including those advocating revolution, were members. One of the most zealous of the future Haymarket defendants, Adolph Fischer, was a member. The pages of the Arbeiter-Zeitung persistently urged workers to arm themselves, especially with dynamite, to assist in the coming war with the industrialist elite.

At the Supreme Court, former U.S. Senator Lyman Trumbull represented Presser, arguing in terms similar to those that had been issued in the earlier Bielefeldt case, a de-politicization of the militia:
“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.
In January, 1886, the Supreme Court released its ruling in the case of Presser v. Illinois. The constitutionality or lack thereof of the Illinois National Guard, which had played a substantial role in the defense's case, was irrelevant, the justices argued; only sections 5 and 6 of the militia law, under which Presser was convicted, were relevant. Turning the Court’s attention to these sections, the decision affirmed that the Bill of Rights did not apply to state laws:
We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

…[T]he right of the people to keep and bear arms is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government…
The Court further opined that states need the ability to regulate free assembly and firearm ownership in order “to suppress armed mobs bent on riot and rapine.”

After the ruling in Presser, the Lehr-und-Wehr Verein would never again exercise in public, and the anarchist movement in the United States went into the decline. Just four months later, the Haymarket riot led to the imprisonment (and, for some, death) of most of the city’s anarchist leaders. Coincidentally or not, the judge who presided over the trial of the Haymarket defendants was the one dissenting member of the panel that ruled in favor of the Lehr-und-Wehr Verein in the Bielefeldt case.

A decade after Presser, U.S. courts began developing the doctrine of “incorporation,” essentially the same argument as the Cook County Criminal Court made in the Bielefeldt case – that the 14th amendment implies that the Bill of Rights applies to state laws as well as to the federal government. Over the next hundred years, most of the Bill of Rights was so "incorporated," including the first amendment rights of freedom of speech, religion, and assembly, and the fifth amendment protections against double jeopardy and self-incrimination. Notably, however, the Supreme Court has never ruled that the second amendment applies to the states; hence, Presser v. Illinois is still a standard citation in cases throughout the country upholding local ordinances banning handgun ownership.

That is likely to change soon. The Presser case was recently denigrated as outmoded by Justice Antonin Scalia, writing for the majority in its ruling (see p. 48, n23) last summer against the Washington, D.C. handgun ban. That case, however, did not decide the question of whether the second amendment applies to the states since the District of Columbia is not a state. Nevertheless, barring unexpected changes in the Court’s membership, most observers expect a decision in the next few terms will extend “incorporation” to the second amendment. Will we then see a return of the Lehr-und-Wehr Verein?

Neff’s hall, where the Verein once met for their general assembly and military drills, still stands on Clybourn Ave. While the Verein were active, it was commonly used by anarchists to store dynamite and other weapons. It was frequented in particular by Louis Lingg, the most violent of the Haymarket defendents, who committed suicide in jail before his execution. Known as Thueringer Hall in the 1880s, the building was later home to a hosiery shop in the 1950s. Today, it appears to be vacant.

[Several of the quotes in this post (particularly the poem from the Arbeiter-Zeitung and the clippings from the defense brief in Presser) were found in Stephen P. Halbrook's Summer 1999 article in the University of Detroit Mercey Law Review, "The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, One of the Last Holdouts Against Application of the Bill of Rights to the States".]

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