An Army of One

The right to bear arms belongs to you, not to the government.

Mr. Kopel research director, Independence Institute.

National Review Online, May 29, 2001 10:20 a.m. More by Kopel on the legal history of the Second Amendment.

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 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. … 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 Review99 (1999).] 

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