Guest Contributor
Davel Kopel

Davel Kopel is the Research Director at the Independence Institute.

Explaining Eisentrager
Nazis, Gitmo and the Second Amendment...
[Dave Kopel] 5/27/04

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 person...be 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. CRO

This piece first appeared at National Review On-line at NationalReview.com

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