So, what the Heller our friends at the ACLU going to do now?
posted by Kaimipono D. Wenger
One interesting question is what the ACLU is going to do with Heller.
Initial indications aren’t particularly promising for the second amendment crowd. The ACLU’s recent press release about developments this term clearly indicates where organizational priorities lie. The release describes Boumediene in glowing terms, along with background like
Habeas corpus has been regarded as a cornerstone of liberty and a check against the abuse of executive power since the Magna Carta in 1215. Even before the Bill of Rights, the framers regarded habeas corpus as so essential to the system of checks and balances that they included a provision in the Constitution prohibiting the “suspension” of habeas corpus except in rare and limited circumstances.
What about Heller? “By concluding that D.C.’s gun control law was unreasonable and thus invalid, the Court placed a constitutional limit on gun control legislation that had not existed prior to its decision in Heller. It is too early to know how much of a constitutional straitjacket the new rule will create.” Yeah, it’s pretty clear who the red-headed stepchild is in this household.
And this ambivalence is consistent with ACLU history — the ACLU has not been a second-amendment rights organization, historically. Instead, it’s taken a distinctly agnostic view. Interestingly, though, the ACLU has explicitly linked that agnostic approach to Miller. Thus, the stated grounds for the ACLU’s prior agnosticism no longer exist.
Really! Let’s take a look.
The ACLU’s existing explanation for second amendment neutrality is:
“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.” (ACLU Policy #47)
Um, oops.
The website elaborates:
We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today’s world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration. . . .
The question therefore is not whether to restrict arms ownership, but how much to restrict it. If that is a question left open by the Constitution, then it is a question for Congress to decide.
Yep. One doesn’t have to be Mike O’Shea to notice that about the entire stated legal underpinning for ACLU neutrality has now been, um, blown to smithereens. Heller definitely protects something individual. (How that balances against government interest remains very fuzzy in a lot of places, as Mike notes, but there’s definitely an underlying, individual something.)
So, what happens next? Well, I’m not an ACLU officer, and I obviously can’t say what the organization will do one way or the other, going forward — but here are a few thoughts on it.
It seems theoretically plausible to suggest that, now that an individual right of some sort (subject to all sorts of further clarification, as Mike notes) has been recognized by the Court, that this right is now one which the ACLU should actively defend under its general mission of defending the Bill of Rights. This reasoning may become more compelling in the future, too, as future cases elaborate on the now-murky incorporation questions that Heller didn’t really answer.
On the other hand, the culture-wars aspect of the debate might suggest otherwise. And I wonder whether those pragmatic considerations will win out — whether the organization will take a different tack and hold, essentially, that Heller is wrong. That would be a nightmare of an argument to try to make, conceptually. But do ACLU volunteers really want to take up second amendment cases? Perhaps we’ll see.
Either way, I don’t think that relying on Miller is an option anymore. On the second amendment, the ACLU is going to have to either fish or cut bait.
June 30, 2008 at 9:54 pm
Posted in: Constitutional Law
Print This Post
Responses (30)
Mike O'Shea - July 1, 2008 at 2:14 am
Interesting issue. The Warren Court decisions invigorating the criminal procedure amendments also had a strong “culture-wars aspect” — consider the themes of the 1968 election — yet that didn’t stop the ACLU from embracing them.
I doubt the group will start agitating for vigorous enforcement of the right to arms. Aren’t those passages from their website striking, with their complacency about the prospect of “police and [the] military” — i.e., the agents of the state — monopolizing the means of force? Not easy to imagine the ACLU thinking that way in other contexts.
Brett Bellmore - July 1, 2008 at 8:34 am
Didn’t Strossen, with her “not co-extensive” talk, already cut the ACLU loose from any linkage to the Bill of Rights?
I think the best we can expect of the ACLU is that they drop their rhetorical support for the constitutionality of gun control, (Nope, they weren’t neutral.) and just leave defense of this right up to groups like the NRA.
And it’s a pity, because if they embraced the 2nd amendment, their membership would vastly increase, as would their clout, to the benefit of all civil liberties.
Mike, the point of the culture wars is that the ACLU was on the *other side* of them from gun owners. Not that it was avoiding them.
Aaron Walker - July 1, 2008 at 9:30 am
I believe that the ACLU is a non-partisan organization that blindly supports the bill of rights, even the stuff conservatives like.
I also believe in the tooth fairy.
Of course I am being sarcastic. But if the ACLU was smart they would take up the cause, to gain the grudging respect of conservatives. But they won’t.
Greg - July 1, 2008 at 4:26 pm
The ACLU will not change it’s position as many of their gun-control supports have not given up the fight and will try to regulate gun ownership in any form that will pass SCOTUS muster. They will go back to the same old play book they have been using for years, Marx pg 243-247
Sigivald - July 1, 2008 at 4:43 pm
That the ACLU even tried to claim that the Second Amendment was the unique and only “collective right” in the entire Constitution kept me from ever believing they cared about it.
They’re not a “civil liberties” organization. They’re a political organization in favor of a select set of civil liberties.
(And one would think the ACLU would be aware that under the Militia Act, all adult males under 65 [and by extension under modern jurisprudence all women in the same age range] are members of the militia, which is explicitly not the National Guard.)
Zhid - July 1, 2008 at 4:57 pm
Didn’t Scalia directly challenge the ACLU when he referred in his opinion to 1st amdt issues relating to Nazis in Skokie?
Nadine Strossen - July 1, 2008 at 4:58 pm
I don’t want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights.
Conversely, I guess the fact that something is mentioned in the Constitution doesn’t necessarily mean that it is a fundamental civil liberty.
Jonathan - July 1, 2008 at 5:10 pm
Here’s what I sent the ACLU:
Dear Mr. Romero:
Thanks for your acknowledgement of my “new” ACLU membership. It’s actually a renewal of a very old membership. Sometime in the early 1980s, I became aware of the ACLU’s illiterate, self-contradictory and historically revisionist policy regarding gun rights. At that time, I advised the ACLU that they were eating their seed corn and I would henceforth be sending their money to more consistent defenders of our constitutional rights at the NRA. I’ve done this ever since. But now that the ACLU’s gun rights position has been rendered obsolete (to put it mildly), and before I can find any public stance that your organization has taken to bring it into concert with this recently recognized, though ancient right, I have decided to give you the benefit of the doubt to the tune of twenty dollars to renew my membership.
So, thanks for welcoming me as a new member. You can expect me, and anyone else I can recruit, to be a loud voice, speaking now as a member, calling for you to do what you claim: defend and protect the rights enumerated in the Constitution of our country. I hope your organization can rise to the challenge, given its abysmal record on this issue. Indeed, we, the members of the NRA, have done the job you claim to do. Now we hope you can overcome your ideological bias and help us carry the water from here on.
Best regards,
Robin Munn - July 1, 2008 at 5:17 pm
Time to dig up a really old joke.
How does an ACLU lawyer count to ten?
One, three, four, five…
Andrew C Frechtling - July 1, 2008 at 5:23 pm
Ms Strossen’s last post is interesting. I have long believed that the Ninth Amendment may provide support to an individual rights view of the Second.
Self-defense is nowhere mentioned in the Bill of Rights, yet certainly is a natural right of every person, and is so enshrined in the common law. There is no state in the Union where it is illegal to kill a criminal assailant who is trying to kill you. You may have a duty to try to retreat, but if you can’t, you are justified in preserving your own life by killing your oppponent.
So is self-defense one of the civil rights not “coextensive with constitutional rights” as Ms Strossen suggests?
Or is indeed a right, a Ninth Amendment right, peeping out from under Judge Bork’s inkspot?
And if self-defense is a right, then is the means to self-defense also a right? I believe it is, and is so identified in the Second Amendment.
Andy
Aaron - July 1, 2008 at 5:24 pm
Nadine
> Conversely, I guess the fact that something is mentioned in the Constitution doesn’t necessarily mean that it is a fundamental civil liberty.
I ask you, what right could possibly be more fundamental than the God-given right to rebel and throw off tyranny as necessary? If we did not have this right, we would not have rebelled against England.
And given the fundamental nature of that right, in particular in America, what good would that right be without the ability to arm ourselves? A right to rebel without the right to keep and bear arms is not very much use.
But I’ll let Kozinski explain it to you:
> All too many of the other great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
> My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
There is no more fundamental right written in our constitution.
Federale - July 1, 2008 at 5:25 pm
Interesting, but the purpose of the ACLU is not defending the Bill of Rights. It is primarily a political organization who purpose is to misuse the court system to destroy America. It’s founder was a communist and has primarily followed a legal strategy that closely follows the political program of the CPUSA, the former Soviet Union, and now, give the Red-Green alliance, radical Islam. There is nothing in the Constitution that prohibts capital punishment, school prayer, displaying the Ten Commandments, etc. Take any position advocated by the ACLU and one will find that the opposite position exists in the Constitution. When was the last time the ACLU sued a university to hire a conservative? They quite frequently sue to have communists, homosexuals, and minorities hired, but never take any position that protects people with whom they disagree politically. They refuse to take any action regarding Islamic prayer and propoganda in schools from Minnesota to California. The ACLU exists and an anti-American political organization.
Fûz - July 1, 2008 at 5:52 pm
Please see my post http://weckuptothees.blogspot.com/2004_08_08_archive.html
on my go-around with the ACLU regarding the Second, a decade or more ago, a la Jonathan’s comment above.
FWIW, that’s how I met Paul Gallant, a research fellow with David Kopel. ACLU ended correspondence with me by giving me contact information for other ACLU members who were contesting their Second Amendment policy. Paul was one of them.
Fûz - July 1, 2008 at 5:54 pm
Please see my post
on my go-around with the ACLU regarding the Second, a decade or more ago, a la Jonathan’s comment above.
That’s how I met Paul Gallant, a research fellow with David Kopel. ACLU ended correspondence with me by giving me contact information for other ACLU members who were contesting their Second Amendment policy. Paul was one of them.
SEE - July 1, 2008 at 5:56 pm
The Ninth is a perfect backstop to the Second.
Even if the Second Amendment is interpreted in purely collective terms, Blackstone makes it clear that the common-law right to arms was an individual right for purposes of individual defense. The Ninth, at the very least, incorporates all then-existing rights not otherwise enumerated in the Constitution. Therefore, there is an individual right to own firearms for self-defense in the Constitution.
Frank - July 1, 2008 at 6:12 pm
I have always found the collectivist view of the second amendment a bit odd. The collectivist view is that state militias have a right to be armed. The amendment then protects the right of states to self defense against a tyrannical federal government. If such a conflict was to occur and a state militia was to be defeated by a federal army, the last line of defense would be the armed citizen. In the collectivist view, the framers realized this conflict might occur but didn’t think to protect the ultimate deterrent and defense against it.
Kevin R.C. O'Brien - July 1, 2008 at 6:13 pm
Civil Liberties? Who knew?
I always thought it stood for Atheist Criminal Lovers Union. But then, I was just going on their actions over the years.
notaclue - July 1, 2008 at 6:17 pm
The NRA, of which I am a life member, likes to call itself the nation`s oldest civil rights organization”. And so it is.
anonymous - July 1, 2008 at 6:32 pm
Even if the 2nd Amendment is a “state’s” right, then federal gun control laws would be unconstitutional.
(I’m sure I’m not the first person to point that out).
Harry - July 1, 2008 at 7:30 pm
Well, the ACLU has a response:
“So, we’ve been getting a lot of comments about the ACLU’s stance on the Second Amendment. For those of you who didn’t catch our response in the blog comments, here it is again:
The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.
As always, we welcome your comments.”
Link to ACLU’s Blog
Clark Goble - July 1, 2008 at 7:39 pm
Isn’t that pretty consistent? They aren’t defending the bill of rights as ruled but the bill of rights as they interpret it. I don’t see anything wrong with that. I’m sure had Heller gone the other way that the NRA wouldn’t stop talking about the 2cd amendment as an individual right.
Mr. Scratch - July 1, 2008 at 8:23 pm
The ACLU’s statement in regard to Heller:
http://www.aclu.org/scotus/2007term/35797prs20080626.html
“The Second Amendment has not been the subject of much Supreme Court discussion through the years. To the extent it has been discussed, the Court has described the Second Amendment as designed to protect the ability of the states to preserve their own sovereignty against a new and potentially overreaching national government. Based on that understanding, the Court has historically construed the Second Amendment as a collective right connected to the concept of a “well-regulated militia” rather than an individual right to possess guns for private purposes.”
“In Heller, the Court reinterpreted the Second Amendment as a source of individual rights. Washington D.C.’s gun control law, which bans the private possession of handguns and was widely considered the most restrictive such law in the country, became a victim of that reinterpretation. ”
“The Court was careful to note that the right to bear arms is not absolute and can be subject to reasonable regulation. Yet, by concluding that D.C.’s gun control law was unreasonable and thus invalid, the Court placed a constitutional limit on gun control legislation that had not existed prior to its decision in Heller. It is too early to know how much of a constitutional straitjacket the new rule will create.”
Mr. Scratch - July 1, 2008 at 8:26 pm
Further clarification from the ACLU:
(scroll down to message # 10)-
http://blog.aclu.org/2008/06/26/mandatory-ultrasound-laws-are-about-political-interference-not-medical-information/
“The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.”
Jim Durbin - July 1, 2008 at 8:33 pm
Their stance on it is pretty clear. They’re out fundraising in San Francisco using the decision to scare people into giving them more money.
Rather than being disappointed, I imagine they lick their lips and get excited over the cash they’ll be able to generate.
Letalis Maximus, Esq. - July 1, 2008 at 8:58 pm
Except for the fact that, you know, in every case where a State/Individual has challenged the Federal Government over the power and authority to control the Militia and the National Guard, the Supreme Court has sided with the Federal Government.
http://www.guncite.com/journals/heath.html
So, when it comes to the Second Amendment, the Collective Right Crowd’s position seems to be a kind of: “Heads, the Federal Government wins; Tails, the States and Individual Citizens lose.”
Did you read Scalia's opinion, Nadine? - July 1, 2008 at 9:57 pm
I guess the ACLU is opposed to constitutional rights for African-Americans and supports the Dred Scott decision. Because that’s the logic you have to embrace to take the position they hold.
Ogre - July 2, 2008 at 12:13 am
Many years ago I was a member of the ACLU. I decided to stop supporting them because they did not believe in the entire Constitution, specifically, the 2nd and 10th Amendments.
I’ll consider supporting them again when they start taking on restrictive gun laws and when the Feds overstep their authority.
I don’t except this to ever happen. The ACLU has never met a gun law they didn’t like and absolutely love it when the Federal government interferes with state and local authority. In fact, their court cases almost always result in more Federal interference and less local autonomy.
Brett Bellmore - July 2, 2008 at 7:22 am
Years ago they faced a bit of a crisis, because most of their financial donors, especially the big ones, were anti-gun. They could be honest and consistent about the entire Bill of Rights, or well funded.
They chose well funded. It had the advantage of not encouraging people who they disliked on a cultural level to join.
The consequence, of course, of becoming explicitly anti-2nd amendment, is that people who care about the 2nd amendment self-select away from the ACLU, and they became even more anti-gun.
I really don’t think there’s any going back, they’re too financially dependent on anti-gunners, AND there aren’t enough people still in the organization who want to go back.
Wendy Weinbaum - July 2, 2008 at 1:55 pm
As a Jewess in the US, I would like to remind everyone that America wasn’t won with a registered gun! And that criminals are stopped by FIREARMS, not by talk. That is why all REAL Americans put our 2nd Amendment FIRST!
Ayn R. Key - July 3, 2008 at 1:00 pm
The ACLU has released a statement on Heller via their blog.
ACLU Blog on Heller
The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.
They continue to disagree and say the SCOTUS was wrong. Of course they’ve disagreed with the SCOTUS before so this shouldn’t be too surprising.
Leave a Reply