First and Second Amendments: The First Cases on Religion, Speech, Press, Assembly and Arms

The First Amendment begins, in the National Archives transcription: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Notice the first word: Congress. For more than a century, that word shaped every first case on these two amendments.

In Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), a Baltimore wharf owner named John Barron sued the city because its street work sent sand and earth into the harbor and made the water at his wharf too shallow for large vessels. He argued that the Fifth Amendment required the city to pay him. Chief Justice John Marshall wrote that the Bill of Rights was "not applicable to the legislation of the States." That case was about the Fifth Amendment (Lesson 9 tells it fully), but its rule applied to the First and Second Amendments too. A citizen whose speech or religion was restricted by a state or city had no federal claim.

The Fourteenth Amendment, ratified in 1868, changed that over time. Through a process called incorporation, the Supreme Court has held, one right at a time, that most of the Bill of Rights applies to the states through the Fourteenth Amendment's Due Process Clause. So for each clause in this lesson we look for two firsts: the first case interpreting the right against the federal government, and the first case applying it to the states.

Religion: Free Exercise

Reynolds v. United States (1879)

George Reynolds was a member of the Church of Jesus Christ of Latter-day Saints living in Utah Territory. Because Utah was a federal territory, the federal government made its criminal law, and a federal statute made bigamy a crime there. Reynolds was indicted after marrying Amelia Jane Schofield while his first wife was living. At trial he argued that his church taught that male members had a religious duty to practice plural marriage, and he asked the judge to tell the jury that if he married out of religious duty he could not be found guilty. The judge refused, and he was convicted.

Chief Justice Waite wrote the opinion of the Court affirming the conviction. The Court drew a line between belief and conduct: laws "cannot interfere with mere religious belief and opinions," but "they may with practices." A religious belief could not excuse an act the law made criminal. Along the way, the Court quoted Thomas Jefferson's letter to the Danbury Baptist Association, which described the First Amendment as "building a wall of separation between church and State." See Reynolds v. United States, 98 U.S. 145 (1879). The case was argued in November 1878 and decided January 6, 1879, which is why some sources list it as 1878 (the Court's term) and others as 1879.

Reynolds is generally cited as the first Supreme Court case to interpret the Free Exercise Clause. It arose in a federal territory, so Barron was no obstacle: Congress itself had passed the law.

Cantwell v. Connecticut (1940)

Newton Cantwell and his sons Jesse and Russell were Jehovah's Witnesses who went door to door in New Haven, Connecticut, soliciting contributions for religious publications. A state law required a certificate from a state official, who decided whether a cause was truly religious. They had none and were arrested. Jesse was also convicted of breach of the peace after he played a phonograph record attacking the Catholic Church for two Catholic men, who became angry. He left when asked.

Justice Roberts wrote for the Court that the certificate requirement was a forbidden prior restraint on religion, because it let an official decide what counted as religious. The Court also set aside Jesse's breach of the peace conviction. On incorporation, the Court wrote: "The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws." See Cantwell v. Connecticut, 310 U.S. 296 (1940). This is the case generally cited as applying the Free Exercise Clause to the states.

Religion: The Establishment Clause

Everson v. Board of Education (1947)

A New Jersey law let local school boards pay for transporting children to school, including private religious schools. The Ewing Township board reimbursed parents for bus fares, including parents whose children attended Catholic parochial schools. A local taxpayer sued, arguing the payments violated the Constitution.

The Court ruled against him, 5 to 4. Justice Hugo Black, for the majority, held that the Establishment Clause applies to the states through the Fourteenth Amendment, and then held that the reimbursements served a public purpose and did not violate it. Black also wrote, "The First Amendment has erected a wall between church and state." Justice Jackson wrote a dissent joined by Justice Frankfurter, and Justice Rutledge wrote a dissent joined by Justices Frankfurter, Jackson and Burton. See Everson v. Board of Education, 330 U.S. 1 (1947) and the National Constitution Center's case page.

Everson is a rare first: both sides could claim a win. Those who favor strict separation got the incorporation holding and the "wall" language. Those who favor accommodation got the result: the reimbursements stood.

What came after. For decades the Court used a test from Lemon v. Kurtzman to decide Establishment Clause cases. In Kennedy v. Bremerton School District, 597 U.S. ___ (2022), a football coach's case decided 6 to 3, Justice Neil Gorsuch wrote that the Court had "long ago abandoned" Lemon, and that Establishment Clause questions are to be answered by reference to "historical practices and understandings." Justice Sonia Sotomayor dissented, joined by Justices Stephen Breyer and Elena Kagan. That is the governing approach today.

Freedom of Speech

The first prosecutions: the Sedition Act of 1798

The first great free speech fight did not reach the Supreme Court at all. The Sedition Act of 1798 made it a crime to publish certain criticism of the federal government. One of the first people indicted and tried under it was Matthew Lyon, a congressman from Vermont. A federal grand jury indicted him in October 1798, a jury convicted him, and Justice William Paterson, presiding at trial, sentenced him to four months in prison and a $1,000 fine. While still in jail he won reelection to the House. The Federal Judicial Center has a good account (The Sedition Act Trials, Federal Judicial Center). We found no Supreme Court ruling on the Act's constitutionality. That makes the Sedition Act trials the earliest federal free speech cases we found, but they were trials in lower federal courts, not Supreme Court decisions.

Gitlow v. New York (1925)

Benjamin Gitlow, a member of the Left Wing Section of the Socialist Party, was business manager of a paper that published the "Left Wing Manifesto" in 1919. It called for mass strikes and "revolutionary mass action." New York convicted him under its criminal anarchy law, though there was no evidence the manifesto had any effect. Justice Edward Sanford wrote for a 7 to 2 majority upholding the conviction. Justices Holmes and Brandeis dissented.

But the case is remembered for one sentence: "For present purposes, we may and do assume that freedom of speech and of the press ... are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." See Gitlow v. New York, 268 U.S. 652 (1925). Gitlow lost, but the principle he argued for won. Gitlow is generally cited as the first case to treat free speech and press as protected against the states.

Brandenburg v. Ohio (1969): the rule today

Clarence Brandenburg, a Ku Klux Klan leader in Ohio, was convicted under the state's criminal syndicalism law after a filmed rally. In an unsigned (per curiam) opinion, the Court reversed and held that the government may forbid advocacy of force or lawbreaking only when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Court expressly overruled Whitney v. California (1927). See Brandenburg v. Ohio, 395 U.S. 444 (1969). The "imminent lawless action" test is the current rule for speech that advocates violence.

Freedom of the Press

Near v. Minnesota (1931)

Jay Near and Howard Guilford published The Saturday Press in Minneapolis. It accused the police chief, the mayor, the county prosecutor and others of failing to stop gangsters, and it made anti-Semitic attacks on Jewish residents. Minnesota had a 1925 public nuisance law that let a court stop publication of such a newspaper. The county prosecutor, Floyd Olson, got an injunction barring the paper from publishing.

The Supreme Court struck down the law as applied, 5 to 4. Chief Justice Charles Evans Hughes wrote that "it is the chief purpose of the guaranty to prevent previous restraints upon publication." The law worked as censorship, suppressing future publication before any trial of its content. Hughes noted narrow exceptions, such as publishing troop movements in wartime. Justices Butler, Van Devanter, McReynolds and Sutherland dissented. See Near v. Minnesota, 283 U.S. 697 (1931).

Near is generally cited as the first major Supreme Court case on prior restraint of the press, and it remains the starting point for prior restraint cases. Note that the Court protected the paper without deciding whether its charges were true, and without approving of its content.

Assembly and Petition

United States v. Cruikshank (1876)

In 1873, in Colfax, Louisiana, armed white men killed more than 100 Black men over a political dispute (Federal Judicial Center timeline). Federal prosecutors charged participants under the Enforcement Act of 1870, and three men were convicted. Among other things, the indictment charged that they had conspired to deprive two Black citizens, Levi Nelson and Alexander Tillman, of the right to assemble peaceably and the right to bear arms.

Chief Justice Waite, for the Court, threw out the convictions. On assembly, the Court said the First Amendment restrains only Congress, so people must look to the states to protect the general right to assemble. The Court did recognize one exception: assembling to petition the national government is "an attribute of national citizenship" that federal law can protect. See United States v. Cruikshank, 92 U.S. 542, decided March 27, 1876.

Cruikshank is the earliest Supreme Court case we found interpreting the Assembly and Petition Clause, and it is also the earliest Second Amendment case we found (below).

De Jonge v. Oregon (1937)

Dirk De Jonge helped run a public meeting in Portland in July 1934, sponsored by the Communist Party. It was orderly and open to the public, and he was not charged with advocating any crime there. Oregon convicted him under its criminal syndicalism law anyway and sentenced him to seven years. Chief Justice Hughes wrote for the Court that "peaceable assembly for lawful discussion cannot be made a crime," and that the right of peaceable assembly "is a right cognate to those of free speech and free press, and is equally fundamental." See De Jonge v. Oregon, 299 U.S. 353 (1937). This is generally cited as the case applying the right of assembly to the states.

The Second Amendment

"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." The text is the same in every case below. What changed was how the Court read the relationship between the first clause and the second, and whether the right reached the states.

Cruikshank (1876) and Presser v. Illinois (1886)

In Cruikshank, the Court said the right to bear arms was not granted by the Constitution and did not depend on it, and that the Second Amendment "means no more than that it shall not be infringed by Congress." It added: "This is one of the amendments that has no other effect than to restrict the powers of the national government." That makes Cruikshank the earliest Supreme Court case we found interpreting the Second Amendment.

Ten years later, Herman Presser led about 400 members of the Lehr und Wehr Verein, an armed association, on a march through Chicago, riding at their head with a cavalry sword. Illinois law barred unlicensed armed military groups from drilling or parading. Presser was fined $10. Justice Woods wrote for the Court that the Second Amendment is "a limitation only upon the power of Congress and the national government, and not upon that of the state." The Court added that states could not disarm the people so as to deprive the United States of its reserve of citizens available for militia service. See Presser v. Illinois, 116 U.S. 252 (1886).

United States v. Miller (1939)

Jack Miller and Frank Layton were charged with carrying an unregistered short barreled shotgun from Claremore, Oklahoma, to Siloam Springs, Arkansas, in violation of the National Firearms Act of 1934. The trial judge threw out the indictment as a Second Amendment violation. The Supreme Court reversed. Justice McReynolds wrote that, with no evidence that such a shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia," the Court could not say the amendment protected it. See United States v. Miller, 307 U.S. 174 (1939). Miller is the earliest Supreme Court review of a federal gun law under the Second Amendment that we found, and it remained the Court's leading Second Amendment case until Heller.

District of Columbia v. Heller (2008)

Dick Heller was a special police officer in Washington, D.C., authorized to carry a handgun on duty. When he applied to register a handgun to keep at home, the District refused under its handgun ban. He sued. In a 5 to 4 decision, Justice Antonin Scalia wrote that the Second Amendment protects an individual right to keep and bear arms, unconnected with militia service, for lawful purposes such as self-defense in the home. The Court struck down the handgun ban and the requirement that guns at home be kept disassembled or trigger-locked. Justice John Paul Stevens and Justice Breyer wrote dissents, each joined by the other and by Justices David Souter and Ruth Bader Ginsburg. See District of Columbia v. Heller, 554 U.S. 570 (2008).

Heller is the first Supreme Court decision we found that struck down a law under the Second Amendment. Because the District of Columbia is federal territory, it did not decide whether the right applies to the states.

McDonald v. City of Chicago (2010), Bruen (2022) and Rahimi (2024)

Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held 5 to 4 that the Fourteenth Amendment makes the Second Amendment right recognized in Heller fully applicable to the states. Justice Samuel Alito wrote the main opinion. Justice Clarence Thomas agreed with the result but would have relied on the Privileges or Immunities Clause instead of the Due Process Clause. This ended the Cruikshank and Presser rule.

In New York State Rifle and Pistol Association v. Bruen, 597 U.S. ___ (2022), decided 6 to 3, Justice Thomas wrote that when the Second Amendment's text covers conduct, the government must show that its regulation is consistent with the nation's "historical tradition of firearm regulation." The Court struck down New York's requirement that applicants show "proper cause" for a carry license. In United States v. Rahimi, 602 U.S. ___ (2024), decided 8 to 1 with Chief Justice John Roberts writing and Justice Thomas dissenting, the Court upheld the federal law disarming a person a court has found to be a credible threat to the physical safety of others. Bruen's history test, as applied in Rahimi, governs Second Amendment cases today.

Summary table

Clause	First case	Year	What kind of first
Bill of Rights and the states	Barron v. Baltimore	1833	Held the Bill of Rights limits only the federal government
Free Exercise	Reynolds v. United States	1879	Generally cited as first Supreme Court interpretation
Free Exercise (states)	Cantwell v. Connecticut	1940	Applied the clause to the states
Establishment (states)	Everson v. Board of Education	1947	Applied the clause to the states; upheld the law
Speech (early prosecutions)	Sedition Act trial of Matthew Lyon	1798	One of the first Sedition Act prosecutions (lower federal court)
Speech	Schenck v. United States	1919	Generally cited as the first major Supreme Court free speech ruling
Speech and press (states)	Gitlow v. New York	1925	Generally cited as the first to assume protection against the states
Press, prior restraint	Near v. Minnesota	1931	Generally cited as the first major prior restraint ruling
Assembly and Petition	United States v. Cruikshank	1876	Earliest Supreme Court interpretation we found
Assembly (states)	De Jonge v. Oregon	1937	Applied the right to the states
Second Amendment	United States v. Cruikshank	1876	Earliest Supreme Court interpretation we found
Second Amendment (federal law)	United States v. Miller	1939	Earliest review of a federal gun law we found
Second Amendment	District of Columbia v. Heller	2008	First we found to strike down a law; individual right
Second Amendment (states)	McDonald v. City of Chicago	2010	Applied the right to the states