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.


PubliusRex said...

A few comments on the ACLU and the 2nd amendment:
1) I find it odd that they rest on the status quo of Supreme Court decisions in explaining why the ACLU spends no resources in advancing 2nd amendment rights. Afterall, the ACLU is all about challenging and disrupting the status quo under the banner (however misleading) of expanding the envelope of individual rights beyond the boundaries that have always circumscribed them. All this notwithstanding recent circuit decisions that have held the 2nd amendment to be an individual entitlement.
2) The ACLU's position on the 2nd amendment is unique in that its the single individual right that the organization doesn't purport to actively be trying to enlarge. Rather than trying to enlarge it, they rest on the claim that its not an individual right. What an oddity then among the Bill of Rights. It all goes to the hypocrisy of the organization as well as their restrictive reading of the amendment.
3) Much of the ACLU's agenda does not expand individual rights at the expense of the government, but rather expands the rights of some individuals by contracting the individual rights of the other. The establishment clause and free exercise clauses, as the ACLU would interpret them, are in conflict. One can only be enlarged by shrinking the other. It's pretty clear which side they're on in that case. And again...they're not resting on the status quo understanding of the balance, but are in fact actively seeking to change the law.
4) If they were truly committed to individual rights, they'd also work on reducing government power exercised through the commerce clause. That they're not involved in this is indicative of their true agenda....

PubliusRex said...

Albeit from an interested party, this link,, provides an explanation of the "individual right" theory.

PubliusRex said...

Note, the seminal case on the 2nd amendment being an individual right is United States v. Emerson, 270 F.3d 227 (5th Cir. 2001).

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.