by Dave Kopel
National Review Online, May 27, 2002.
Chutzpah isn't a word often used in connection with typical admirers of Islamonazi terrorism. But John Walker Lindh is special. In federal court, Lindh's attorney has claimed that prosecuting him for firearms crime would violate Mr. Lindh's Second Amendment right to keep and bear arms. The Second Amendment claim was preceded by another claim that prosecuting Lindh for joining al Qaeda would violate his First Amendment right of assembly. Actually, Walker's claim is specious. But examining exactly what about the claim is specious shows that Attorney General Ashcroft is hardly "radical" or innovative in treating the Second Amendment as an individual right — for among the many previous attorneys general with views similar to Ashcroft's was the attorney general serving under President Abraham Lincoln.
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. (4 Wall.) 2 (1866).
The Court did not discuss the Second Amendment, but in argument to the Court, the attorney general of the United States did. As was the custom in the 19th century, the oral arguments are summarized in the U.S. Supreme Court's official report. Milligan's lawyer's argued that martial law does not, in the American system, obliterate the Constitution. 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.
The attorney general, who was defending the legality of Milligan's having been sentenced to death by court martial, retorted 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 materia:
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. They may as well be here set out:
4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
5. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, 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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
6. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
In addition to these, there are two preceding amendments which we may also mention, to wit: the second and third. They are thus:
2. 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.
3. No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law.
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 materia, 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.
By the Constitution, as originally adopted, no limitations were put upon the war-making and war-conducting powers of Congress and the President; and after discussion, and after the attention of the country was called to the subject, no other limitation by subsequent amendment has been made, except by the Third Article, which prescribes that "no soldier shall be quartered in any house in time of peace without consent of the owner, or in time of war, except in a manner prescribed by 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 has 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 one of the most prominent Union Generals 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 which were not stated in the text. For example, despite the literal language of the Fifth Amendment and the Second Amendment, slaves in antebellum America had been deprived of liberty without due process and had been forbidden to possess arms:
...the 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 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 the gun-prohibition lobbies, 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, and free blacks were enrolled in the North Carolina militia.) Although there were no federal law interfering with state militias, there were state laws forbidding individual blacks to possess 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).
Now back to Mr. Lindh: In the Milligan case, the United States attorney general and the defense lawyer (one of the ablest lawyers of the century) agreed that persons in enemy controlled territory who were waging war on behalf of an enemy could not invoke the protections of the Bill of Rights. Milligan's only claim to the Bill of Rights was that he was in secure Union territory. Had he been in Confederate territory, everyone agreed that he would have had no right to due process, or to any other part of the Bill of Rights.
Thus, Mr. Lindh enjoys absolutely none of the conditions which led a divided Court to rule that Mr. Milligan was entitled to the Bill of Rights. Lindh waged war against the United States, and did so from enemy-controlled territory (Afghanistan), a place where U.S. civil law was not in effect. In this context, Lindh had no Second Amendment rights, just as Nazi soldiers, North Vietnamese Army soldiers, and Shining Path guerillas had no Second Amendment rights. Nor do Americans who join evil totalitarian foreign armies on foreign soil retain Second Amendment rights.
—Dave Kopel is research director of the Independence Institute.