Wednesday, November 02, 2005

Guns, "the people," & the ACLU's Shifting Legal Philosophy

I recently made a point a friend of mine associated with the ACLU that his organization picks and chooses the "rights" it wishes to protect, and ignores some parts of the Constitution altogether while imagining parts that it wishes were there but weren't. Specifically, I mentioned that they completely ignored the 2nd Amendment.

He responded with the ACLU's 2nd Amendment information page, and quoted their official philosophy on it:

"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." --Policy #47


Here's the actual text of the Amendment:

"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." (emphasis added)


The page goes on to explain that because hand guns and hunting rifles could never be used to challenge the government with tanks and bazookas, the people should have no weapons at all. A strange stance coming from a group that no doubt imagines that a few thousand insurgents in Iraq with IEDs have already beaten the US Army there.

The thing that kills me is that this is one of the few Amendments to the Constitution the ACLU wants to restrict. (Unmentioned abortion is an absolute right that should never be taken away, but specifically mentioned gun ownership isn't? What what what?!?!)

I understand that it could be read in a more limited way. And I don't think that owning full military grade hardware up to and including nuclear weapons is protected, just as certain kinds of speech aren't protected. But the phrase "the people," along with the specifically enumerated authority elsewhere in the Constitution to raise armies and enforce the law, means that it meant (and means) something more than a provision enabling the government to do something it was already empowered to do.

The reason you bother to write out a Constitution is so that there is an unchanging (or at least difficult to change) baseline of inviolable rights that are secured for ourselves and "our Posterity." If the founders envisioned such rights to be subject to a veto by judicial fiat any time 5 justices thought "times had changed," then it would be called the Bill of Suggestions instead.

1 comment:

Orrin Johnson said...

Indeed. The ACLU's only actual nexus with the Bill of Rights is that they invoke it to add legitimacy (and indeed moral supremacy) to their otherwise run-of-the-mill policy arguments. Sometimes those policy stances comport with the BoR, and sometimes they don't. Where they don't, they stretch/shrink to fit.