Cruikshank: The Case That Broke Rights

A Supreme Court case most Americans can't name did more damage to gun rights than nearly any law ever passed.

Catch up quick: The backstory is brutal.

• On April 13, 1873, a white mob in Colfax, Louisiana slaughtered dozens of Black Republicans gathered at the parish courthouse
• Federal prosecutors charged ringleader William Cruikshank with conspiring to prevent citizens from assembling, bearing arms, and enjoying liberty
• Cruikshank's defense argued simply: the federal government has no business here — gun rights belong to the states

The ruling: SCOTUS agreed with the murderers. In United States v. Cruikshank (1876), the Court declared that none of the liberties in the Bill of Rights — not the First Amendment, not the Second — applied against state governments or private individuals. Only the federal government was bound by them.

That logic effectively slammed the federal courthouse door in the faces of massacre survivors and handed states a blank check to gut constitutional rights however they pleased.

The big picture: This wasn't just a Reconstruction-era injustice. Cruikshank stayed on the books and kept shaping American law for over 130 years. The First Amendment wasn't incorporated against states until Gitlow v. New York in 1925. The Second Amendment didn't get there until McDonald v. Chicago in 2010.

The intrigue: Justice Antonin Scalia essentially left a legal breadcrumb pointing toward McDonald. In his 2008 Heller opinion — which struck down D.C.'s handgun ban — Scalia added a footnote noting that Cruikshank had also been wrong about the First Amendment, and that courts had already buried that part of the ruling.

"With respect to Cruikshank's continuing validity, 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." — Justice Antonin Scalia, District of Columbia v. Heller (2008), Footnote 23

Alan Gura, the attorney who won both Heller and McDonald, later said he read that footnote as an outright invitation to bring the incorporation challenge. He accepted.

What gun owners should know: McDonald is settled law — the Second Amendment applies against state and local governments nationwide. But the 134-year gap between Cruikshank and McDonald is a reminder that constitutional rights don't enforce themselves. Courts have to be pushed. Cases have to be brought. And bad precedents, once set, have a long half-life.

What to watch: Justice Samuel Alito, 76, is reportedly considering retirement timing around the 2026 midterms, aware that Republican Senate control affects confirmation odds for any Trump nominee. The balance that produced Heller and McDonald could shift. SCOTUS composition still matters enormously for Second Amendment doctrine.