by Dave Kopel
Liberty magazine, April 2004, pp. 31-32, 53. More by Kopel on the Second Amendment in the 19th century.
After Attorney General Ashcroft promulgated an official Department of Justice position recognizing that the Second Amendment is an individual right, gun prohibition advocates attacked him changing long-established Department of Justice policy. Actually, it was only under Richard Nixon that the Attorney General created an official policy claiming that the Second Amendment was not an individual right. President Lyndon Johnson's Attorneys General, while not creating an official policy, also denied that the Second Amendment protected an individual right. But before the Johnson-Nixon era, things were very different. Let's take a look at the first Supreme Court case in which the U.S. Department of Justice cited the Second Amendment.
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, 71U.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. Because nineteenth century Supreme Court reports also included the arguments of the parties, we can read the exact words the Attorney General said.
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), Fifth Amendment (no criminal trials without due process), and 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 (as being of the same cloth).
He first claimed that in times of war, the President was the sole judge of the necessity of what needed to be done:
"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."
The Attorney General then noted that Milligan's argument was based on the Fourth, Fifth, and Sixth Amendments. The Attorney General continued:
"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."
He then came to the heart of the argument: if the Fourth, Fifth, and Sixth Amendments apply in time of war, so does the Second. And that would lead to the absurd result of the government forbidden to disarm the enemy:
"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."
Accordingly, the Attorney General concluded that all of the Bill of Rights had an implicit exception for wartime necessity.
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 plainly 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 was whites-only, but this did not prevent the states from structuring their own militias as they saw fit.)
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.
The Milligan case provides one more bit of evidence that the individual rights view of the Second Amendment was originally the only view. The notion that the Second Amendment does not belong to individuals was created in the twentieth century, by the Kansas Supreme Court in the 1905 case of Salinas v. Blaksley.
Dave Kopel is co-author of Supreme Court Gun Cases (Bloomfield Press).