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[Cite as Laird v. Tatum, 408 U.S. 1, 22-23 (1972). Note: This decision concerns military surveillance and whether this activity exceeded constitutional uses of the Army, and whether it violated the First Amendment. In his dissent, Justice Douglas quoted a law review article by Chief Justice Warren which referred to numerous bill of rights guarantees, including the Second Amendment, as safeguards intended to protect America from rule by a standing army: "the Bill of Rights Amendments 2 and 3, specifically authorizing a deventralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner." (P. 22 this page) In a later dissent, Justice Douglas said, "There is no reason why all pistols should not be barred to everyone except the police." (Adams v. Williams, 407 U.S. 143, 150 (1972)). He clarified this position and indicated the Second Amendment did apply to invidiuals and thus subject to watering down, "But if watering down is the mood of the day, I would prefer to water down the second amendment rather than the fourth amendment." (Id. at 151). This is consistent with Justice Douglas's views a decade eariler: "The closest the framers came to the affirmative side of liberty was in the right to bear arms. Yet this too has been greatly modified by judicial construction." (Douglas, The Bill of Rights is Not Enough, 38 N.Y.U. L. REV. 207, 233 (1963).)]

[Laird v. Tatum continued
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[paragraph continued from previous page] scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties.

"The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat."

As Chief Justice Warren has observed, the safeguards in the main body of the Constitution did not satisfy the people on their fear and concern of military dominance:[22.7]

"They were reluctant to ratify the Constitution without further assurances, and thus we find in the Bill of Rights Amendments 2 and 3, specifically authorizing a decentralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner. Other Amendments guarantee the right of the people to assemble, to be secure in their homes against unreasonable searches and seizures, and in criminal cases to be accorded a speedy and public trial by an impartial jury after indictment in the district (p.23)and state wherein the crime was committed. The only exceptions made to these civilian trial procedures are for cases arising in the land and naval forces. Although there is undoubtedly room for argument based on the frequently conflicting sources of history, it is not unreasonable to believe that our Founders' determination to guarantee the preeminence of civil over military power was an important element that prompted adoption of the Constitutional Amendments we call the Bill of Rights."

The action in turning the "armies" loose on surveillance of civilians was a gross repudiation of our traditions. The military, though important to us, is subservient and restricted purely to military missions. It even took an Act of Congress to allow a member of the Joint Chiefs of Staff to address the Congress;[23.8] and that small step did not go unnoticed but was in fact viewed with alarm by those respectful of the civilian tradition. Walter Lippmann has written that during World War II, he was asked to convey a message to Winston Churchill, while the latter was in Washington together with his chiefs of staff. It was desired that Churchill should permit his chiefs of staff to testify before Congress as to the proper strategy for waging the war. Lippmann explains, however, that he "never finished the message. For the old lion let out a roar [paragraph continues next page]

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