Driving While Armed

The ACLU defends gun rights


Since "the constitutional right to bear arms is primarily a collective one," the American Civil Liberties Union has said, the extent to which the government should restrict gun ownership "is a question left open by the Constitution." In an apparent break with this longstanding position, the ACLU of Texas is defending the right of motorists to carry guns in their cars.

Texas law has long exempted people who have guns in their vehicles while "traveling" from prosecution for unlawful carrying of a weapon, an offense punishable by up to a year in jail. But the definition of traveling was fuzzy, leaving gun owners vulnerable to arrest, prosecution, and conviction, depending on how police officers, prosecutors, and judges decided to read and apply the law. In 2005, at the urging of the Texas ACLU as well as gun rights groups, the state legislature passed a law aimed at ensuring that, as the bill's author put it, "a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle."

But in a February 2007 report, the Texas ACLU, the Texas State Rifle Association, and the Texas Criminal Justice Association showed that many district and county attorneys were instructing police to carry on as before, arresting gun-carrying motorists at their discretion and letting prosecutors and judges sort things out. The report criticized prosecutors for flouting the law and recommended new legislation to correct the problem, which the state legislature passed and sent to the governor in May.

Scott Henson, the former director of the Texas ACLU's Police Accountability Project and author of the report, says the state chapter has not officially endorsed a constitutional right to arms. But "we inched them toward a Second Amendment position," he adds, by demonstrating the potential for a left-right alliance on civil liberties issues such as car searches. Henson hopes more ACLU members will recognize that "the erosion of individual Second Amendment rights has had the unintended consequence of allowing law enforcement to abrogate other important liberties."