To: Thomas A Watson who wrote (466607 ) 9/29/2003 2:04:08 PM From: Gordon A. Langston Respond to of 769670 Here's a link with the past. After the surrender of Germany during World War II, some German soldiers in China aided the Japanese army, in the months that Japan continued to fight alone.[177] 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, and pointed out that the Fifth Amendment is not by its terms limited to American citizens.[178] Justice Jackson’s majority opinion held that the Germans had no Fifth Amendment rights. He pointed out that if the 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,[179] 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.[180] 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 have Second Amendment rights, if the Second Amendment were to apply to non-Americans.[181] Interestingly, Justice Jackson’s reasoning echoed an argument made in Ex Parte Milligan by the Attorney General: the Fifth Amendment must contain implicit exceptions, which allow trial of civilians under martial law; the whole Bill of Rights contains implicit exceptions, for without such exceptions, it would be a violation of the Second Amendment to disarm rebels, and the former slave states’ forbidding the slaves to own guns would likewise have been unconstitutional.[182]i2i.org