Taking Liberties

I would like to thank REASON for printing the interview with Nadine Strossen ("Life, Liberty, & the ACLU," October). If anything can convince those of us who are concerned with liberty that the ACLU doesn't represent us, it is that interview. In the past 50 years, the government has grown in power and size and has become more tyrannical in its scope. Where has the ACLU been while all this has transpired? Why, chasing church ladies off government property, and patrolling school grounds in search of those naughty, praying children, of course.

As someone who is irreligious, I am not in the least bit afraid of Pat Robertson or Jerry Falwell. They can take nothing from me that I do not choose to give to them. The government, on the other hand, is characterized first and foremost by its ability to use force.

Yet we find that in cases that matter to most Americans—school choice, gun control, property rights, and taxes—Ms. Strossen and the ACLU come down on the side of the government. America desperately needs an organization dedicated to fighting for individual liberty. Unfortunately, the ACLU isn't it.

Ken B. Steen
Greensboro, NC

Ms. Strossen's positions seem to be reliant upon "case-by-case" examination, meaning that no one could have fair warning that a law was about to be broken until some subjective judge had a chance to review the activity in question, and decide based on what he feels.

Her view on the rights of the owners of rental properties is a classic example of this unworkable, subjective philosophy. While upholding the right of a property owner to control rentals in "an owner-occupied" dwelling, Ms. Strossen then says, "suppose it's large enough so that it's not really a private dwelling?" Where would Ms. Strossen draw this arbitrary line at which property ceases to be a private dwelling because it has grown too large? At that point, is it "public" property, since it's no longer private? Has she ever heard of the Takings Clause?

Her position on the shopping mall question is the fatal blow, showing that she is more interested in power than in justice or rights. "The common area in the mall, which is the functional equivalent of a sidewalk outside the traditional store or town square" must be open to all forms of private expression. The "common area" is not the functional equivalent of a sidewalk. It differs in that it is built, owned, maintained, and serviced at private expense. And to create a positive responsibility for owners (such as disclaimer signs, counter-speech, and the rest of the garbage suggested by Ms. Strossen) is to deny that property rights exist. Of course, this denial is a cornerstone of the ACLU platform.

T. Anthony Rowls
Cincinnati, OH

For some time I have been offended by the ACLU's relative blindness regarding our Second Amendment rights, particularly when compared with its tireless efforts to support the First Amendment, and its infuriatingly microscopic vision when it comes to the rights of individuals who are essentially violent criminals.

The ACLU needs to do a better job of protecting the rights of those of us who are not inclined to infringe on the rights of others. Unfortunately, after reading your interview with its new president, Nadine Strossen, I can only conclude that if the quality of her thoughts pertaining to the Second Amendment is representative of her abilities in general, the ACLU is in more trouble than ever.

First, she stated that the inclusion of the phrase "well regulated" in the language of the amendment itself "seems to defy any argument that regulation is inconsistent with the amendment." This is a truly otiose argument on her part. It's ludicrous to imagine that the phrase was originally intended to refer to regulation in the sense of rules or limitations. It conjures up an image of a militia of bureaucrats straining to carry 50-pound military handbooks along with their rifles. Undoubtedly, the intended meaning of the root word regulate was more like "to put in good order," the fourth meaning of the word shown in my copy of Webster's dictionary.

The wording of the Second Amendment clearly implies that the framers of the Constitution wanted a militia that could shoot well, not one that could cope with regulatory minutiae. I noticed that Ms. Strossen did not try to make nonsense out of the phrase "the right to keep and bear arms shall not be infringed." She simply ignored it. I wonder how she would interpret the word infringed.

Second, she attempted to evade the issue of the ACLU's lack of support for the Second Amendment by asserting, "civil liberties are [not] necessarily coextensive with constitutional rights." She goes on to egregiously assert, "The fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty." While I agree with her former assertion, the latter is just wrong. Looking at it in terms of set theory, constitutional rights are subsumed by the larger set of civil liberties, but to assert that any of the constitutional rights is outside the set of civil liberties is pernicious.

Last, Ms. Strossen said she does not believe "having a gun in your home is something that can ultimately fend off the power of a tyrannical government." This is another piece of sophistry; her implicit argument is that small arms are ineffective against a modern army. Does she not remember how effective widely distributed small arms were against our vastly more powerful army in Viet Nam? Furthermore, her argument begs the question: What could one resort to using to fight tyranny after guns are banned? Does she think that bricks and pitchforks would work better?

While she is right that is far better to fend off tyranny with words rather than guns (and I suspect we both believe that the First Amendment is our most important civil liberty), she exhibits a massive failure to comprehend the significance of the Second Amendment. Without any power behind them, the First Amendment and all the others that come after are just so many insubstantial words. The Second Amendment provides a tangible distribution of real power in the hands of the people, and this is something far more precious than Ms. Strossen and the ACLU are willing to acknowledge.

Norman Smith
Compuserve 73642,2272

Nadine Strossen should dust off one of her old grammar texts and use it to re-examine the Second Amendment. "Well regulated" modifies "militia," not "people."

Obviously, a well-regulated militia is more valuable a force in service of a community of free citizens than is an unregulated militia. Hence, the opening phrase of the Second Amendment. The following clause guarantees (supposedly) a ready supply of armed citizenry from which a well-regulated militia can be drawn.

Paul Wescott
Compuserve 71700,1502

The Founders and Framers all believed that the unorganized militia consisted of all able-bodied citizens. A few examples are instructive: "A militia when properly formed are in fact the people themselves…and include all men capable of bearing arms….To preserve liberty it is essential that the whole body of people always possess arms," Richard Henry Lee, Additional Letters From the Federal Farmer 53 (1788). "I ask, sir, what is the militia? It is the whole people, except for a few public officials," George Mason, 3 Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 2 at 97 (2d Ed., 1888). "[The Constitution preserves] the advantage of being armed, which the Americans possess over the people of almost every other nation…[whose] governments are afraid to trust the people with arms," James Madison, The Federalist No. 46 (1788).

It is no accident that proponents of the view that the Second Amendment only guarantees a collective right and not an individual right never quote the Founders or Framers to support their arguments. The reason is because there is no support for that view to be found in the writings of the Founders or Framers.

Daniel J. Schultz
President and Founding Member
The Lawyers' Second Amendment Society
Encino, CA

Ms. Strossen's rationale for the ACLU's abandonment of the right to keep and bear arms is: "What it [the pro-gun position] comes down to is the very strong belief that having a gun in your home is something that can ultimately fend off the power of a tyrannical government. I find that really unpersuasive in the 20th-century context. Maybe it made sense in the 18th century."

Recent history offers numerous examples of lightly armed men able to inflict grievous damage on vastly superior forces. Afghanistan's mujahadeen initially armed with archaic Lee-Enfield bolt-action rifles, stalled the Soviet Red Army for many years before receiving the advanced weapons from the West that finally tipped the balance of power in their favor. Chad's desert fighters managed to beat back Gadhafi's tank forces by the simple, insanely brave expedient of mounting captured Libyan anti-armor weapons on their Toyota pickup trucks and charging the invaders in packs. More recently, 5,000 Croat defenders carrying hunting rifles and Kalashnikovs were able to defend the medieval city of Vukovar against 25,000 Yugoslav army troops and Chetnik irregulars backed by Soviet T-84 tanks and heavy artillery for 89 days before they ran out of ammunition and were overrun.

Mark Penman
Carrboro, NC

Ms. Strossen replies: Although your readers have raised questions about several issues I discussed in my interviews with Cathy Young, a majority seem concerned about the ACLU's position on the Second Amendment. I therefore decided to use the limited space available to further clarify this position.

The national ACLU does not affirmatively support gun control legislation, believing that it cannot be justified on civil liberties grounds. The question whether any particular regulation affecting guns is barred by the Second Amendment, or civil liberties principles, is more complicated, however.

We are familiar with recent scholarship that challenges the prevailing (although old) Supreme Court doctrine regarding the original intent of the Second Amendment. This scholarship argues that the amendment was specifically intended to protect the right of individuals to own and bear arms, whereas the Supreme Court had held that its intent was to secure the states' right to maintain militias as a hedge against federal power. Both claims are probably correct because in the 18th century the militia consisted of citizens who brought their own arms.

As in other disputes about the meaning of constitutional provisions, the attempt to discern a specific original intent is of limited use, and certainly not dispositive, in setting modern arguments. One has to look beyond the specific 18th-century circumstances and instead try to discern what broad purpose or value was being served, and how that might be served today.

The Bill of Rights clearly was passed to protect citizens and states from federal power, and not to restrain state powers. Thus the Second Amendment did not prevent state or local governments from disarming individuals—e.g., no one ever suggested that Wyatt Earp and other local lawmen who disarmed people in Dodge City and other western towns were violating the Second Amendment—because everyone understood that it only created a right against the federal government. Its purpose was to maintain the local means to resist potential tyranny by the federal government.

In light of this underlying broad purpose, it is difficult to discern the relevance of the Second Amendment today. State laws that attempt to disarm individuals as a way of reducing violent crime seem to have little to do with resisting the tyranny of the national government, and seem more analogous to the sort of disarming that western sheriffs imposed on townspeople without anyone seeing a Second Amendment violation.

The strongest civil libertarian reason for opposing gun control laws is the same that motivated the original drafters of the Second Amendment: to maintain the ability to resist armed tyranny by the government. But if armed tyranny comes from Washington, it will not come armed with pistols. In the modern world, no citizenry can effectively resist an armed government with handguns alone. So to achieve the desired purpose, one would have to argue that in the modern world, the Second Amendment confers the right of individuals to own tanks, bazookas, anti-aircraft missiles, jet fighters, attack helicopters, and even tactical nuclear weapons. I know of no Second Amendment advocate who takes that position, but without it, the civil liberties underpinning of the argument collapses. Once all this heavier weaponry is banned, the ability to resist a standing professional military is practically non-existent.

Moreover, since the Second Amendment refers only to "arms" and does not distinguish among types of arms, any concession that the Second Amendment does not protect an individual's right to own a tank or nuclear weapon introduces a "rule of reason" not explicitly present in the Amendment's language. If such a "rule of reason" can be invoked to justify banning individual ownership of tanks and nuclear arms, why can't it also be used to ban, say assault rifles or to require registration while permitting ownership?