>
> [Note: Our right to keep and bear arms is also not dependent upon the
> interpretation of the Constitution by any court or administration,
however,
> your liberty to exercise that right can come under attack by them. - Tony]
>
>
>
> An Army of One
> The right to bear arms belongs to you, not to the government.
>
>
> Mr. Kopel research director, Independence Institute.
> May 29, 2001 10:20 a.m.
>
> http://www.nationalreview.com/kopel/kopel052901.shtml
>
> Attorney General John Ashcroft, announcing his view that the Second
> Amendment guarantees an individual right to arms, noted that Franklin
> Roosevelt’s Attorney General, Homer Cummings, held the same view, as
> demonstrated by Cummings’s testimony to Congress. The Cummings testimony
is
> well known to Second Amendment scholars, but less noticed, however, is the
> fact that a second FDR Attorney General held the same view – Robert
> Jackson, who served as Attorney General in 1940-41, and who was then
> appointed to the U.S. Supreme Court.
>
> Before the New Deal, we don’t see a lot of information about the opinions
> of attorneys general toward the Second Amendment – mainly because there
was
> essentially no federal gun control. But from Supreme Court records, we do
> know that the attorneys general who served under Benjamin Harrison and
> Abraham Lincoln also believed in the individual right guaranteed by the
> Second Amendment. And before them, so did President Andrew Jackson’s
> attorney general. As did President Reagan’s Attorney General Ed Meese.
>
> Robert Jackson
>
> After the surrender of Germany in World War II, some German soldiers in
> China aided the Japanese army in the months while Japan continued to fight
> alone. The American army captured them, and tried them by court martial in
> China as war criminals. The Germans argued that the trial violated their
> Fifth Amendment rights not to be tried by court martial, and pointed out
> that the Fifth Amendment was not by its terms limited to American
citizens.
> The case came to the U.S. Supreme Court, as Johnson v. Eisentrager, 339
> U.S. 763 (1950).
>
> Justice Jackson’s majority opinion held that Germans had no Fifth
Amendment
> rights. He pointed out that if Germans could invoke the Fifth Amendment,
> they could invoke the rest of the Bill of Rights. This would lead to the
> absurd result of American soldiers, in obedience to the Second Amendment,
> being forbidden to disarm the enemy:
>
> “If the Fifth Amendment confers its rights on all the world except
> Americans engaged in defending it, [Jackson was noting that the Fifth
> Amendment's prohibition on trial by court-martial does not, by its own
> terms, apply to soldiers in the standing army or to militiamen engaged in
> militia duty], the same must be true of the companion civil-rights
> Amendments, for none of them is limited by its express terms,
territorially
> or as to persons. Such a construction would mean that during military
> occupation irreconcilable enemy elements, guerrilla fighters, and
> ‘were-wolves’ could require the American Judiciary to assure them freedoms
> of speech, press, and assembly as in the First Amendment, right to bear
> arms as in the Second, security against ‘unreasonable’ searches and
> seizures as in the Fourth, as well as rights to jury trial as in the Fifth
> and Sixth Amendments.” (emphasis added)
>
> Although the gun-prohibition lobbies would have you believe that the
Second
> Amendment protects only state governments, not individuals, the
> “irreconcilable enemy elements, guerrilla fighters, and ‘were-wolves’” in
> Justice Jackson’s hypothetical are obviously not American state
> governments. Instead they are individuals, and as individuals would enjoy
> Second Amendment rights, if the Second Amendment were to apply to
> non-Americans.
>
> The characters in the Jackson hypothetical are not militia members either.
> A militia is an organized force under government control. But “guerrilla
> fighters” or “were-wolves” are small groups or individuals functioning in
> enemy territory beyond the reach of any friendly government. The legal
> distinction was of great importance during World War II. Switzerland, for
> example, made extensive plans for its militia forces (i.e., almost the
> entire able-bodied adult male population) to resist a German invasion to
> the last man. But the Swiss government also warned its citizens not to
> engage in guerrilla warfare on their own; the militiamen fighting the
> Germans would be entitled to the protection of the rules of war and
> international conventions, but guerrillas would not.
>
> The Benjamin Harrison administration
>
> During the nineteenth century, the official Supreme Court reports included
> summaries of counsels’ arguments. During the Benjamin Harrison
> administration, the federal ban on the mailing of lottery tickets came
> before the Supreme Court. William H.H. Miller was then Attorney General,
> and he assigned the argument in the case to Assistant Attorney General
> Maury, whose brief presumably reflected the Attorney General’s views. The
> Attorney General’s office defended the federal mailing ban, by arguing
that
> even though it was a restriction on a Bill of Rights freedom, the
> Constitution allowed some restrictions: “Freedom of the press, like
freedom
> of speech, and ‘the right to keep and bear arms,’ admits of and requires
> regulation, which is the law of liberty that prevents these rights from
> running into license.” In re Rapier, 143 U.S. 110, 131 (1892).
>
> The argument obviously reflected the view that freedom of speech, of the
> press, and the right to arms, are all individual rights that are subject
to
> regulation
>
> The Lincoln and Johnson administrations
>
> During the Civil War, in 1864, an Indiana man, Lambdin P. Milligan, was
> charged with aiding the southern rebellion against the national
government.
> Although Indiana was under full union control, and courts in Indiana were
> functioning, Milligan was tried before a military court-martial and
> sentenced to death. In 1866, a unanimous Supreme Court overturned
> Milligan’s conviction, holding that martial law can only be applied in
> theaters of war, and not in areas where the civil courts were functioning.
> Ex Parte Milligan, 71 U.S. 2 (1866).
>
> The Court did not discuss the Second Amendment, but in argument to the
> Court, the Attorney General of the United States did. During the argument
> before the Court, Milligan’s lawyers had claimed that Congress could never
> impose martial law. They pointed out that the Fourth Amendment (no
searches
> without warrants), the Fifth Amendment (no criminal trials without due
> process), and the Sixth Amendment (criminal defendants always have a right
> to a jury trial) do not contain any exceptions for wartime.
>
> Attorney General James Speed had been appointed by Lincoln, and continued
> to hold office under Andrew Johnson. The Attorney General, defending the
> legality of Milligan’s having been sentenced to death by court-martial,
> argued that under conditions of war, the protections of the Bill of Rights
> do not apply. Thus, the federal government could disarm a rebel, without
> violating his Second Amendment right to keep and bear arms. The Attorney
> General urged the Court to construe the Second, Third, Fourth, Fifth and
> Sixth Amendments in pari material:
>
> “After war is originated, whether by declaration, invasion, or
> insurrection, the whole power of conducting it, as to manner, and as to
all
> the means and appliances by which war is carried on by civilized nations,
> is given to the President. He is the sole judge of the exigencies,
> necessities, and duties of the occasion, their extent and duration S
>
> “Much of the argument on the side of the petitioner will rest, perhaps,
> upon certain provisions not in the Constitution itself, and as originally
> made, but now seen in the Amendments made in 1789: the fourth, fifth, and
> sixth amendments. S It will be argued that the fourth, fifth, and sixth
> articles, as above given, are restraints upon the war-making power; but we
> deny this. All these amendments are in pari material, and if either is a
> restraint upon the President in carrying on war, in favor of the citizen,
> it is difficult to see why all of them are not. Yet will it be argued that
> the fifth article would be violated in ‘depriving if life, liberty, or
> property, without due process of law,’ armed rebels marching to attack the
> capital? Or that the fourth would be violated by searching and seizing the
> papers and houses of persons in open insurrection and war against the
> government? It cannot properly be so argued, any more than it could be
that
> it was intended by the second article (declaring that ‘the right of the
> people to keep and bear arms shall not be infringed’) to hinder the
> President from disarming insurrectionists, rebels, and traitors in arms
> while he was carrying on war against them.
>
> “These, in truth, are all peace provisions of the Constitution and, like
> all other conventional and legislative laws and enactments, are silent
> amidst arms, and when the safety of the people becomes the supreme law.
>
> “This, then, is the only expressed constitutional restraint upon the
> President as to the manner of carrying on war. There would seem to be no
> implied one; on the contrary, while carefully providing for the privilege
> of the writ of habeas corpus in time of peace, the Constitution takes it
> for granted that it will be suspended ‘in case of rebellion or invasion
> (i.e., in time of war), when the public safety requires it’.”
>
> Thus, the attorney general explained, the Second Amendment belongs to
> individuals, but if a Confederate rebel were disarmed, his Second
Amendment
> right would not be violated, since the Second Amendment would not apply to
> him – even though the Second Amendment carries no explicit exception for
> wartime. Likewise, if Congress declared martial law in a region, a
civilian
> would be subjected to a court martial, rather than trial by jury, even
> though the Sixth Amendment (which guarantees jury trials) has no explicit
> exception for wartime. The attorney general plainly saw the Second
> Amendment as guaranteeing an individual right.
>
> The United States government also made another argument showing that the
> Second Amendment belongs to individuals. On behalf of Milligan, attorney
> David Dudley Field had presented a passionate and superb argument,
> explaining that the ultimate issue at bar was the supremacy of the civil
> power over the military, a principle at the very heart of Anglo-American
> liberty and republican government.
>
> Field had made much of the fact that the Fifth Amendment’s requirement
that
> persons could only be tried if they had first been indicted by a grand
jury
> had an explicit exception for military circumstances (“except in cases
> arising in the land or naval forces, or in the militia when in actual
> service in time of war or public danger”). Field pointed out that Milligan
> (an Indiana civilian with Confederate sympathies) was obviously not within
> the terms of the exception.
>
> In response, the attorney general turned the argument over to Benjamin
> Franklin Butler. A very successful lawyer, Butler had been a prominent
> Union General during the Civil War; a few months after his Supreme Court
> argument, Butler would be elected to Congress from Massachusetts, and
would
> become one of the leading Radical Republicans.
>
> Butler told the Supreme Court that the whole Bill of Rights contained
> implicit exceptions that were not stated in the text. For example, despite
> the literal language of the Fifth and Second Amendments, slaves in
> antebellum America had been deprived of liberty without due process and
had
> been forbidden to possess arms:
>
> “[T]he constitution provides that ‘no person’ shall be deprived of liberty
> without due process of law. And yet, as we know, whole generations of
> people in this land – as many as four millions of them at one time -
people
> described in the Constitution by this same word, ‘persons,’ have been till
> lately deprived of liberty ever since the adoption of the Constitution,
> without any process of law whatever.
>
> “The Constitution provides, also, that no ‘person’s’ right to bear arms
> shall be infringed; yet these same people, described elsewhere in the
> Constitutions as ‘persons,’ have been deprived of their arms whenever they
> had them.”
>
> Butler’s point, presented on behalf of the attorney general, was that the
> right to arms and the right not to be deprived of liberty without due
> process were individual rights guaranteed to all “persons.” Yet despite
the
> literal guarantee to all “persons,” slaves had been deprived of their
> liberty without a fair trial, and had not been allowed to own or carry
> guns. Thus, there must be an implicit “slavery exception” in the Second
> Amendment and the Fifth Amendment. And if there could be an unstated
> “slavery exception,” there could also be an unstated “in-time-of-war”
> exception.
>
> Butler’s argument is totally incompatible with the claim that the Second
> Amendment right does not belong to individuals. According to
> gun-prohibition advocates, the Second Amendment can only be violated when
> the federal government interferes with state militias. But there were no
> federal laws forbidding states to enroll slaves in the state militias.
(The
> federal Militia Act of 1792 enrolled whites only, but the Act did not
> prevent the states from structuring their own militias as they saw fit.)
> Although there were no federal laws interfering with state militias, there
> were state laws forbidding individual blacks from possessing arms. So
> Butler’s argument assumed that the Second Amendment right to arms inhered
> in individuals (including slaves, if the Amendment were read literally,
> with no implied exception for slavery).
>
> The Andrew Jackson administration
>
> During the presidency of Andrew Jackson, Roger Taney served as Attorney
> General from 1831 to 1833, later becoming Chief Justice of the Supreme
> Court. As Taney’s opinion in the famous Dred Scott case made clear, Taney
> recognized the Second Amendment as an individual right.
>
> The Reagan administration
>
> More recently, President Reagan’s Attorney General, Edwin Meese, now a
> scholar at the Heritage Foundation, signed the amicus brief [] of
Academics
> for the Second Amendment, endorsing the individual-rights position in the
> Fifth Circuit’s hearing of the appeal in United States v. Emerson.
>
> And so, Attorney General Ashcroft’s recent letter on the Second Amendment
> puts him out of step with General Reno, but into some rather better
company.
>
>
>
> [This article is based on material from "The Supreme Court's Thirty-five
> Other Second Amendment Cases." 18 St. Louis University Public Law Review
99
> (1999).]
>
>