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 ttorney
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 …
"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. … 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).]
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