Free Republic
Browse · Search
Topics · Post Article

Skip to comments.

Explaining Eisentrager (2nd Amendment implications)
NRO ^ | April 20, 2004 | Dave Kopel

Posted on 04/20/2004 6:07:39 PM PDT by neverdem

E-mail Author

Author Archive

Send to a Friend

<% printurl = Request.ServerVariables("URL")%> Print Version

Explaining Eisentrager
The Second Amendment is for individual gun owners.

By Dave Kopel

As the Supreme Court considers whether the U.S. Constitution protects the prisoners held at Guantanamo Bay — it hears oral arguments today in the case — the central issue is the meaning of a case involving illegal combatants from World War II: Johnson v. Eisentrager.

No one knows if Eisentrager will be interpreted broadly enough for the government to win the Guantanamo case. But the more the Supreme Court studies Eisentrager, the better it will be for the civil liberties of American citizens — because Eisentrager clearly teaches that the Second Amendment protects a right held by individuals.

In May 1945, Germany surrendered to the Allies. Yet some German soldiers in China continued to fight alongside the Japanese army, until Japan surrendered. The American army captured the German soldiers, and tried them by court-martial in China as war criminals. Because the German national government had surrendered, the Germans who continued to fight were violating the laws of war.

The Germans argued that their courts-martial violated their Fifth Amendment due-process rights. Their attorneys pointed out that the Fifth Amendment is not by its terms limited to American citizens. The amendment says that "no person" shall be put on trial for a felony unless he is first indicted by a grand jury; "[n]or shall any deprived of life, liberty, or property, without due process of law."

After the Supreme Court heard the case, Justice Robert Jackson's majority opinion held that the Germans had no Fifth Amendment rights. Fifth Amendment rights for illegal combatants would lead to absurd results, Justice Jackson explained.

First of all, the Fifth Amendment grand-jury requirement has an express exception for "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." In other words, a soldier or active-duty militiaman can be court-martialed, even though he has not been indicted by a grand jury. If the Germans could invoke the Fifth Amendment, then they would have rights not enjoyed even by Americans in military service.

Moreover, wrote Justice Jackson, if the Germans could invoke the Fifth Amendment, they could just as well invoke the Second Amendment and the rest of the Bill of Rights. This would lead to the ridiculous result of American soldiers — out of 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, 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.

The gun-prohibition lobby has long argued that the Second Amendment "right of the people" protects only the power of American state governments to have militias. This argument is not consistent with the court's opinion in Eisentrager. The "irreconcilable enemy elements, guerrilla fighters, and 'were-wolves'" in Justice Jackson's hypothetical are obviously not American state governments. They are individuals, and as individuals would have Second Amendment rights, if the Second Amendment applied to non-Americans.

Nor are the characters in Justice Jackson's hypothetical militia members. A militia is an organized force under government control; in contrast, "guerrilla fighters" or "were-wolves" are individuals or small groups functioning in areas beyond the reach of any friendly government.

The legal distinction between militia and guerrillas was well known during World War II. As Stephen Halbrook details in his book Target Switzerland, the Swiss made extensive plans for their militia forces — consisting of 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.

Having served as a judge at the Nuremburg trials, Justice Jackson was presumably familiar with the distinctions in the international laws of war between guerillas and soldiers/militia.

Johnson v. Eistentrager was, despite its unusual circumstances, a typical Supreme Court Second Amendment case. While the court has issued only a few opinions discussing the Second Amendment in detail, the court has written many opinions in which the Second Amendment is mentioned briefly, in order to make a point about something else. And in these mentions, the Second Amendment is overwhelmingly considered a right conferred upon individuals, not state-sponsored militias.

Dave Kopel is co-author of Supreme Court Gun Cases.



TOPICS: Constitution/Conservatism; Cuba; Editorial; Foreign Affairs; Government; Politics/Elections; US: District of Columbia; War on Terror
KEYWORDS: banglist; courtmartial; guerilla; individualright; militia; pow; prisonerofwar; secondamendment

1 posted on 04/20/2004 6:07:43 PM PDT by neverdem
[ Post Reply | Private Reply | View Replies]

To: *bang_list
2 posted on 04/20/2004 6:08:49 PM PDT by neverdem (Xin loi min oi)
[ Post Reply | Private Reply | To 1 | View Replies]

To: fourdeuce82d; Travis McGee; Joe Brower; archy; DMZFrank; El Gato
3 posted on 04/20/2004 6:13:05 PM PDT by neverdem (Xin loi min oi)
[ Post Reply | Private Reply | To 2 | View Replies]

To: neverdem
US vs. Miller is another Supreme court case that can be construed to infer from the 2nd Amendment an individual right to keep and bear arms .

Here's a quick summary:


4 posted on 04/20/2004 6:21:12 PM PDT by BushMeister
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem
This is a very interesting case, for 2nd Amendment purposes. But the critical case that applies now is Quirin, (1942). In that, illegal combatants, even inside the United States and even American citizens, could be tried by military tribunals and outside the terms of the Bill of Rights.

No one in today's press coverage had a clue about the nature of the case today.

Congressman Billybob

Click here, then click the blue CFR button, to join the anti-CFR effort (or visit the "Hugh & Series, Critical & Pulled by JimRob" thread). Please do it now.

5 posted on 04/20/2004 6:22:22 PM PDT by Congressman Billybob ( Visit. Join. Help. Please.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem
6 posted on 04/20/2004 6:22:29 PM PDT by teeman8r
[ Post Reply | Private Reply | To 1 | View Replies]

To: teeman8r; neverdem; Travis McGee; Jeff Head; archy
A reminder how great it is to be an American. Our individual liberties we prize, and our rights we will maintain.
7 posted on 04/20/2004 6:50:57 PM PDT by risk
[ Post Reply | Private Reply | To 6 | View Replies]

To: BushMeister
Thanks for the link.
8 posted on 04/20/2004 7:07:04 PM PDT by neverdem (Xin loi min oi)
[ Post Reply | Private Reply | To 4 | View Replies]

To: neverdem
This is another sweet case for our side but the trick is getting the individual SCOTUS members to read it.
9 posted on 04/20/2004 7:39:01 PM PDT by TheErnFormerlyKnownAsBig (Next up in the hiring process is the polygraph. Time to practice. Yes No Yes No No No No)
[ Post Reply | Private Reply | To 8 | View Replies]

To: m1911
2nd amendment ping
10 posted on 04/20/2004 8:55:55 PM PDT by CapandBall
[ Post Reply | Private Reply | To 2 | View Replies]

To: neverdem
There are even older precedents with 2nd-amendment implications. From the founding of the Republic, it was common practice to prohibit merchant vessels from being armed on the high seas, so that they couldn't go around starting wars with other countries.
11 posted on 04/21/2004 8:13:48 AM PDT by inquest (The only problem with partisanship is that it leads to bipartisanship)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Beelzebubba; ConservativeLawyer; lawdog; WL-law; Henrietta; neverdem
12 posted on 04/21/2004 8:31:54 AM PDT by Travis McGee (----- -----)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Travis McGee
Well, reading the case where the 2nd Amend reference is made, the reference is merely dicta made as a passing aside. Therefore, even though a Supreme Court Justice "said" it in a case, it doesn't become the law of the case by such a reference.
13 posted on 04/21/2004 8:38:06 AM PDT by WL-law
[ Post Reply | Private Reply | To 12 | View Replies]

To: WL-law
Makes sense. So SCOTUS is under no requirement to even acknowledge it.
14 posted on 04/21/2004 9:31:53 AM PDT by Travis McGee (----- -----)
[ Post Reply | Private Reply | To 13 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794 is powered by software copyright 2000-2008 John Robinson