The Supreme Court will consider whether the Second Amendment should apply to the states, and thus whether to overrule United States v. Cruikshank, 92 U.S. 542 (1876). Or is it United States v. Cruikshank, 92 U.S. 542 (1875)? Both citations are commonly used; HeinOnline reports that the 1875 date is given in roughly 60% of law review citations, and the 1876 in roughly 40%. Which is it?
Well, if you want to give the date of decision — which is the modern Bluebook requirement — you should say 1876, since the case was decided Mar. 27, 1876. The reason that many people say 1875 is that, to quote the Supreme Court’s Web page on the subject,
The dates of decisions do not appear beneath the case name in the first 107 volumes of the U.S. Reports. Beginning in 1854 (58 U.S.) the Lawyers’ Edition of the Supreme Court Reports includes the date, though there are some errors and omissions….Some dates do appear in the U.S. Reports, either in the margin or in the body of the opinion. One edition of a particular volume may have dates while another edition does not. These dates sometimes differ from the dates found in the [Engrossed Minutes of the Supreme Court].
Fortunately the page I just linked to contains the official publication dates, so if you want to include the year of decision, you may do so. And for Cruikshank, the year is 1876.
(Note that the characterization of the issue in McDonald as being whether to overrule Cruikshank is something of an oversimplification, but let’s go with it for now.)
Andrew Hyman says:
Whatever the correct year is, Cruikshank is not pertinent to the present case, because there was no state action in Cruikshank. The Fourteenth Amendment only restricts state action. As the Court said in Cruikshank, the Due Process Clause “adds nothing to the rights of one citizen as against another.” That’s 100% correct.
P.S. I like this new feature where you can edit after posting the comment. Very well done.
September 30, 2009, 10:36 amkrs says:
Another reason is probably that the Westlaw “WL” citation to Cruikshank begins with “1875,” and Westlaw doesn’t give the date Cruikshank was actually decided.
September 30, 2009, 10:40 amShelbyC says:
Hyman is correct. Won’t they overrule Presser, not Cruikshank?
September 30, 2009, 10:47 amDennis Nicholls says:
It’s been awhile since I read Cruikshank, but IIRC it did cover state action both for the 2nd Amd. issue and for the 1st Amd. “free assembly” issue. And IIRC the 1st Amd. “free assembly” portion of Cruikshank was overruled during the Warren Court.
Darned I hate being retired – no access to Lexis anymore. Sorry I can’t cite the appropriate case above. :(
September 30, 2009, 10:50 amSteve says:
Logging onto Westlaw in 1875 was tougher than you might think.
September 30, 2009, 10:50 amShelbyC says:
IIRC it covered it in dicta, no?
September 30, 2009, 10:51 amShelbyC says:
Whoops, sorry. Just read the final “note”.
September 30, 2009, 10:58 amluagha says:
It’s a pity. I wanted to see numchuks in the Supreme Court.
September 30, 2009, 11:15 am2nd Amendment court battle – Chicago case to be round two | Radio Vice Online says:
[...] over at SCOTUS Blog, Josh Blackman’s Blog, Volokh Conspriacy and Hot [...]
September 30, 2009, 11:31 amJohn Thacker says:
It didn’t then, but Cruikshank has basically been overruled for essentially every other part of the Bill of Rights. So how important is consistency?
September 30, 2009, 12:01 pmHugh says:
Would that case involve Brian Cruikshank, played by Cary Grant in CHARADE.
Sorry, I just could not help myself.
September 30, 2009, 12:04 pmAndrew Hyman says:
Yeah, I saw the note at the end of the post too, but the characterization of the issue in McDonald as being whether to overrule Cruikshank seems like much more than an oversimplification. Anyways….
September 30, 2009, 12:38 pmScholar says:
Just for the record, the “modern Bluebook” specifically refers to the linked Supreme Court list of dates. See Rule 10.5(a), p. 90 of the 18th ed.
September 30, 2009, 3:13 pmMOS says:
Does this have something to do with whether 1875 is odd or even?
September 30, 2009, 4:29 pmRedlands says:
Is there a snowball’s chance the Court will one day rely on the privileges or immunities clause to analyze these issues? I wish, but tend to think not.
September 30, 2009, 10:15 pmcubanbob says:
If I am not mistaken even in the 1870′s the Mississippi was not considered a state waterway let alone private property so why the convoluted logic of the slaughterhouse cases? Why was the dumping of the waste in to the river not treated as a public nuisance at the time along with the disposal of the animal waste?
October 1, 2009, 7:58 am