U.S. v. Cruikshank

1. It may help your understanding of this case to understand in a clearer way the counts of the indictment at issue in the case. I present them here (taken mostly from Justice Clifford's concurrence)

Three of the defendants are convicted by a jury on Counts 1-16; All eight of the defendants are acquitted on Counts 17-32

Count 1 (and 9): the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose."

Count 2 (and 10):  The right there specified is that of "bearing arms for a lawful purpose."

Count 3 (and 11): They charge the intent to have been to deprive the citizens named, they being in Louisiana, "of their respective several lives and liberty of person without due process of law."

Count 4 (and 12): the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in "the free exercise and enjoyment of their several right and privilege to the full and equal benefit of all laws and proceedings, then and there, before that time, enacted or ordained by the said State of Louisiana and by the United States; and then and there, at that time, being in force in the said State and District of Louisiana aforesaid, for the security of their respective persons and property, then and there, at that time enjoyed at and within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens." 

Count 5 (and 13 and 8 and 16): The intent charged in the fifth and thirteenth is "to hinder and prevent the parties in their respective free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the United States, and as citizens of said State of Louisiana," "for the reason that they, ... being then and there citizens of said State and of the United States, were persons of African descent and race, and persons of color, and not white citizens thereof;" and in the eighth and sixteenth, to hinder and prevent them "in their several and respective free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and secured to them by the constitution and laws of the United States."

Count 6 (and 14): the intent of the defendants to have been to hinder and prevent the citizens named, being of African descent, and colored, "in the free exercise and enjoyment of their several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana, or by the people of and in the parish of Grant aforesaid." 

Count 7 (and 15): The intent here charged is to put the parties named in great fear of bodily harm, and to injure and oppress them, because, being and having been in all things qualified, they had voted "at an election before that time had and held according to law by the people of the said State of Louisiana, in said State, to wit, on the fourth day of November, A.D. 1872, and at divers other elections by the people of the State, also before that time had and held according to law." 

Counts 17-32 [all defendants acquitted]: drawn under [Section 7 of the Enforcement Act of 1870]; charged that the prisoners are guilty of murder committed by them in the act of violating some of the provisions of the two preceding sections of that act.

2. This case is generally considered as completing the emasculation of the privileges and immunities clause of the 14th amendment. How does it do so? Is there a reading of the opinion that would reduce its precedential import? 

3. What portion of the opinion has the greatest force in preventing the privileges and immunities clause from becoming a source of rights against state governments?

4. Justice Clifford is listed as having dissented, but really it is a concurrence. Some might say that it is not the most artfully written opinion. But, what, at bottom, is his reason for not signing the majority opinion? Was Justice Clifford correct in writing a narrower opinion?

4. Justice Clarence Thomas has called on several occasions for a re-examination of the privileges and immunities clause. Take a look at his lengthy concurrence in McDonald v. City of Chicago (contained in this casebook). Do you agree with Justice Thomas entirely? In part?