Second Amendment

The ACLU Defends Gun Owners' Constitutional Rights, Except for the Second Amendment Right to Own Guns

The organization objects to gun restrictions only if they impinge on other constitutional provisions.

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When the American Civil Liberties Union of New Jersey announced its lawsuit on behalf of two public high school students who were suspended because they posted pictures of themselves at a gun range on Snapchat, the first reply on Twitter congratulated the organization for "defending all of the civil liberties." But while the ACLU is commendably willing to defend the First Amendment rights of gun owners and Second Amendment advocates, the national organization still takes the position that, contrary to what the Supreme Court has said, the Constitution does not guarantee an individual right to armed self-defense.

"Given the reference to 'a well regulated Militia' and 'the security of a free State,' the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right," the ACLU says. "In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia. The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment." It adds, however, that "particular federal or state laws on licensing, registration, prohibition, or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions."

On its face, that position is quite different from what Ira Glasser, then the ACLU's executive director, told me back in 1991, 17 years before the Supreme Court first explicitly recognized that the Second Amendment imposes limits on gun control legislation. Glasser conceded that the Second Amendment protects an individual right, but he said that still leaves room for government regulation. If the federal government tried to completely ban private gun ownership, he said, the ACLU would challenge that policy.

In a subsequent letter to the editor, Glasser elaborated on his views, which he said were consistent with ACLU policy:

Once we concede the constitutionality of government bans on some weapons, we are not talking any longer about whether the government may restrict weapons but rather what constitutes a reasonable restriction. If the Second Amendment provides no basis for such distinctions, as it does not, then it is up to the legislature.

The ACLU does not believe that the Second Amendment provides individuals with an unlimited constitutional right to possess any and all weapons; we therefore believe that legislatures may adopt reasonable restrictions. The question is, What is reasonable? An absolute ban on all handguns under all conditions might well be unreasonable. So would licensing and registration schemes that invaded privacy or enforcement methods that resulted in illegal searches.

The ACLU would likely support challenges to any such unreasonable restrictions.

In practice, an individual right that is consistent with just about any gun control measure a legislature is likely to pass may be hard to distinguish from a collective right that imposes no limits at all. After Heller, Barack Obama, then an Illinois senator running for president against John McCain, insisted that "I have always believed that the Second Amendment protects the right of individuals to bear arms." At the same time, he said that right did not preclude Chicago from imposing a blanket ban on handguns similar to the Washington, D.C., law that the Supreme Court overturned in Heller. Two years later, in McDonald v. City of Chicago, the Court disagreed.

Since Glasser said "an absolute ban on all handguns under all conditions might well be unreasonable," his view of the Second Amendment evidently was not quite as narrow as Obama's. As for the ACLU's current approach to gun control, the organization's deputy legal director, Louise Melling, explained it this way last year:

When analyzing gun control measures from a civil liberties perspective, we place them into one of three categories. First are laws that regulate or restrict particular types of guns or ammunition, regardless of the purchaser. These sorts of regulations generally raise few, if any, civil liberties issues. Second are proposals that regulate how people acquire guns, again regardless of the identity of the purchaser. These sorts of regulations may raise due process and privacy concerns, but can, if carefully crafted, respect civil liberties. Third are measures that restrict categories of purchasers — such as immigrants or people with mental disabilities — from owning or buying a gun. These sorts of provisions too often are not evidence-based, reinforce negative stereotypes, and raise significant equal protection, due process, and privacy issues.

In other words, as far as the ACLU is concerned, certain gun control policies might raise constitutional concerns, but those concerns have nothing to do with the Second Amendment. Melling said "many of the options now being considered"—including "raising the minimum age for all gun ownership to 21" and "bans on assault weapons, high-capacity magazines, and bump stocks" —"raise no civil liberties concerns." So called red-flag laws, which authorize court orders that prohibit gun possession by people deemed a threat to themselves or others, "can also be a reasonable way to further public safety," she said, although "they must at a minimum have clear, nondiscriminatory criteria for defining persons as dangerous and a fair process for those affected to object and be heard by a court."

Melling said the ACLU also does not take issue with "universal background checks," "laws that keep guns out of sensitive places like schools and government buildings," "requirements that guns include smart technologies (like password protection) that ensure that only the lawful owner of the gun may use it," and "requirements that gun owners first obtain a permit, much like a driver's license, establishing that they know how to use guns safely and responsibly." But she correctly noted that "the categories of people that federal law currently prohibits from possessing or purchasing a gun are overbroad, not reasonably related to the state's interest in public safety, and raise significant equal protection and due process concerns." She added that "the proposal to ban individuals listed on the No-Fly List from purchasing weapons…is constitutionally problematic, because that list lacks basic due process protections and its standards are unconstitutionally vague."

The ACLU also opposed an Obama administration rule, overturned by Congress in 2017, that would have banned gun ownership by Social Security recipients who have been assigned "representative payees" because they have difficulty managing their finances. "Gun control laws, like any law, should be fair, effective and not based on prejudice or stereotype," it explained. "This rule met none of those criteria." Since gun control supporters generally viewed the rule as the epitome of "commensense gun safety" and its repeal as utterly reckless, the ACLU's position was admirable and courageous.

In short, the ACLU is prepared to defend the civil liberties of current or would-be gun owners, but only if the policies they challenge impinge on something more than the Second Amendment right to keep and bear arms. That is not nothing, but it is definitely not "defending all of the civil liberties."

[I've corrected the reference to Obama's opponent in 2008.]

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66 responses to “The ACLU Defends Gun Owners' Constitutional Rights, Except for the Second Amendment Right to Own Guns

  1. From their web site: “The ACLU has evolved in the years since from this small group of idealists into the nation’s premier defender of the rights enshrined in the U.S. Constitution. With more than 1.5 million members, nearly 300 staff attorneys, thousands of volunteer attorneys, and offices throughout the nation, the ACLU of today continues to fight government abuse and to vigorously defend individual freedoms including speech and religion, a woman’s right to choose, the right to due process, citizens’ rights to privacy and much more.”

    “Much more” clearly does not include the Second Amendment.

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  2. I’m still waiting for them to define what the fuck a “collective right” is. I wait in vain.

    1. An individual right means you can own 1 gun. A collective right means you can own as many as you like.

      I think that’s what they mean.

      1. I think means we can use any gun owned collectivly by anyone

    2. A collective right is the things we choose to do together. AKA government. The government is in charge of the right to organize an armed resistance to an oppressive government. A good government will make generous allowances for resisting a bad government, a bad government will heavily restrict any resistance to a bad government. And that’s how you know whether you’ve got a good or bad government – you can easily get rid of a good government, a bad government is one you can’t get rid of.

      1. A collective right isnt a right at all, it is a priviledge granted to government sanctioned groups obeying government mandates. People who use the term collective rights should be collectively shot.

    3. I think it’s something like a tax.

    4. “Collective Rights” refers to the rights of a group. However, those “rights” exist due to the rights of the individuals who make up the group. Consider, for instance, collective bargaining rights in labor negotiations, which exist due to the individual’s right to bargain for wages, benefits, or other criteria.

      “State’s Rights” here in the US, are also a form of collective rights, but they are an outgrowth of the rights of the people who make up the citizenry of those States. To claim that a right is strictly “collective” seems, well, silly. (I am being too kind).

    5. They mean a right to be armed as part of the military, when ordered to be armed.

      They want people to think they mean something that would actually make sense to describe as a ‘right’, while not actually meaning anything like that.

      1. Members of the militia, currently defined as all able-bodied men between the ages of 18 and 54, can be called to service at any time. That being said, they don’t have a “right” to partake in such official service. However, the right to defend one’s self, one’s family, property, and community is specifically expressed in many of the 44 States which also guarantee the right to keep and bear arms, including constitutions of the original colonies. The right to self-defense , as a matter of law, goes back to at least the Roman Empire. The right to self-defense is a basic human right.

        1. 10 USC 311: Militia: composition and classes
          (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are-
          (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
          32 USC 313: (a) To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age. (b) To be eligible for appointment as an officer of the National Guard, a person must— (1) be a citizen of the United States; and (2) be at least 18 years of age and under 64.

          The old militia laws would be that unorganized militia members purchase their own arms. The ball and shot (powder) would be supplied by the company for training. For hunting and other private weapon uses the militia members would supply their own projectiles and powder.

          The arms would be the same as what the Army used. Justice Scalia said in his opinions, one must look at the history and text. He also stated the 2nd Amendment did not codify the right to keep and bear arms, it codified that the government shall not infringe the individual natural (God given) right.

          1. Thanks for looking it up and posting it in its entirety. I posted a “redacted version.” 🙂

  3. Amazing. All 10 original amendments reference individual rights, except magically, for the ACLU, the 2nd. And even though it clearly states “the people”, which refers to actual people, such as does in the rest of the USC, not institutions or states, the people in the 2nd amendment means collective right to them.

    1. They also seem to be confused about the language “shall not be infringed”, which is purposefully stronger language than anywhere else in the bill of rights.

      The 1st only states that “Congress shall pass no law”, and so only pertains to Congress. The second contains “shall not be infringed”, which means neither Congress, the President, the Courts, nor any petty tyrant appointed to some alphabet agency can pass a law, make a rule, or interpret their way into taking arms from law abiding citizens. States and their subdivisions may have gotten away with it prior to the 14th, but Supremacy means nobody.

      Any other reading of the 2nd Amendment is intellectually dishonest.

      1. Also “the right of the people” would appear to make it pretty obvious. In every other context there is no argument about what “the right of the people” means.

        1. It’s a living constitution, so it means whatever it needs to for the cause.

      2. Ah, but most politician and activists on both sides of the aisle are intellectually dishonest. It’s pretty much a caste mark. The Democrats are slightly more consistent in that regard, but the ‘business-as-usual’ Republicans aren’t fountains of integrity either.

  4. “Barack Obama, then an Illinois senator running for president against Mitt Romney”

    Is this like when the Germans bombed Pearl Harbor?

    1. Thanks. I’ve fixed that.

    2. John McCain, Mitt Romney, whatever. You know all y’all white folks be lookin’ just alike.

  5. If the Drumpf economy didn’t leave me short on cash, I’d consider donating to the ACLU. I absolutely agree with their left-libertarian Living Constitution philosophy ? Roe v. Wade is a SUPER-PRECEDENT and abortion rights are protected, but Heller was wrongly decided and needs to be overturned.

    Hopefully when the next Democratic President expands the Supreme Court we can get more RBG-style justices to make this happen.

    1. “? Roe v. Wade is a SUPER-PRECEDENT and abortion rights are protected, but Heller was wrongly decided and needs to be overturned.”

      It’s like you’re a Pope, issuing a bull—-.

    2. I miss when OBL actually did satire instead of accurately stating the actual positions of the far left 🙁

      1. Poe’s Law in effect.

  6. Look, the ACLU defends the 1st Amendment rights of nazis, neo-confederates, and gun-owners.

  7. “The ACLU disagrees with the Supreme Court’s conclusion about the nature of the right protected by the Second Amendment.”

    Uh, huh. I disagree with the Supreme Court’s conclusion about the nature of the Obamacare penaltax.

    1. “”Obamacare penaltax.””

      I call it a noncompliance tax. It’s a category of tax not authorized by the Constitution.

    2. Uh, huh. I disagree with the Supreme Court’s conclusion about the nature of the Obamacare penaltax.

      According to at least one of Obama’s judges, that makes you no better than a Klansman.

    3. Do I get a penal implant from Obamacare?

  8. The ACLU does not believe that the First Second Amendment provides individuals with an unlimited constitutional right to free speech possess any and all weapons; we therefore believe that legislatures may adopt reasonable restrictions such as approved word lists.

    Is that how it works?

    1. Yep; that is how it works.

      All Amendments are equal, but some are more equal than others…

  9. I wonder: When CA decides to put a 500% tax on firearms and/or ammunition, thereby making it all but impossible for anybody but the “well-heeled” to own, much less use, firearms, will the ACLU step in? And on which side?

    1. And hey why stop there. They support raising the age to 21. Since that’s already past the age of adulthood, what’s to stop raising it even higher? Boil the frog… 21, then 25, then 30, 40… soon enough, the minimum age to purchase a firearm will coincide with the age they’ll take them away because your senile old mind can’t be trusted with one. Voilà, no more pesky ‘right to bear arms’ using nothing but ‘common sense’ limitations to the Second Amendment.

  10. “If the Second Amendment provides no basis for such distinctions, as it does not, then it is up to the legislature.”

    Shall not be infringed. So any, at all. That’s what the word means. The distinction is black and white.

  11. The ACLU. Still, useful for many things “constitutional.” At least when it fits their own interpretation. Just another political entity, now.

  12. “”The ACLU would likely support challenges to any such unreasonable restrictions.””

    I guess there has yet to be a restriction which they consider unreasonable.

    “” So would licensing and registration schemes that invaded privacy or enforcement methods that resulted in illegal searches””

    Has the ACLU supported any lawsuit against current licensing and registration schemes?

  13. If the Second Amendment provides no basis for such distinctions, as it does not, then it is up to the legislature.

    If they’re this way on an enumerated right, imagine how many abortion seekers they must be throwing under the legislative bus.

  14. According to John Lott, who was a lecturer at the University of Chicago when Obama was there, he once tried to introduce himself to Obama but Obama’s response was, “you’re the gun guy, I don’t even believe citizens should be allowed to own guns” and walked away.

    So unless Obama had a “road to Damascus” conversion his stating that he believes the Second Amendment protects an individual’s right to own and bear arms is a bold-faced lie.

    1. Well, it is not his only bold-faced lie. Period.

  15. “Given the reference to ‘a well regulated Militia’ and ‘the security of a free State,’ the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right,” the ACLU says.

    Well this should come as no surprise since its founder Baldwin was a dedicated communist (although later in life he recanted his Marxist position).
    However, the ACLU still insists they, like their totalitarian cousins, the communists, prefer an unarmed society because that way they and their pals can usher in their much coveted socialist slave state faster and more efficiently.

  16. Over the years, I have read every SCOTUS decision, every one, even mentioning firearms, in their entirety, as well as most circuit court decisions, and even many state-level decisions. (There are really not that many). Heller is by far the most comprehensive look a the history of right to keep and bear arms that has yet come around, at least as far as court decisions. I am pretty much convinced that those who claim the 2nd as a “collective right” have never actually read it.

    They also have never read, or choose to ignore the definition of the term “People” as clearly explicated in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)

    1. If you haven’t already check out Brian Doherty’s “Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment”. It’s a great read and very informative, highly recommended.

  17. Marxists who infect our government plus the media prostitutes who protect them will gleefully lie, falsify, fabricate, slander, libel, deceive, delude, bribe, and treasonably betray the free citizens of the United States into becoming an unarmed population. Unarmed populations have been treated as slaves and chattel since the dawn of history.
    Only dictators, tyrants, despots, totalitarians, and those who want to control and ultimately to enslave you support gun control.
    No matter what any politician or hard-left mainstream media tells you concerning the statist utopian fantasy of safety and security through further gun control: They are lying. If their lips are moving, they are lying about gun control. These despots truly hate America..
    These tyrants hate freedom, liberty, personal responsibility, and private property. But the reality is that our citizens’ ownership of firearms serves as a concrete deterrent against despotism. They are demanding to hold the absolute power of life and death over you and your family.
    Ask the six million J ews, and the other five million murdered martyrs who perished in the N azi death camps, how being disarmed by a powerful tyranny ended any chances of fighting back. Ask the murdered martyrs of the Warsaw Ghetto about gun control.
    Their single agenda is to control you after you are disarmed. When the people who want to control you hold the absolute power of life and death over your family, you have been enslaved.
    American Thinker

    1. why is this comment from an article i posted outlined in RED????

      1. It has been flagged as evidence to be submitted in your indictment for wrongthink by federal prosecutors.

    2. Hear, hear! So true…

      First they came for the socialists, and I did not speak out—because I was not a socialist.

      Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist.

      Then they came for the Jews, and I did not speak out—because I was not a Jew.

      Then they came for me—and there was no one left to speak for me.

      — MARTIN NIEMÖLLER

  18. Awww! poor little Lefties! They HATE the Second Amendment (hell, they hate the whole Constitution, the very IDEA that the State’s powers are limited) but they have learned through bitter experience that tempting though it is to jog hard-Left and raise the red flag, the Second Amendment is pure poison for them. Oppose it and you lose traction, lose voters, lose sympathy.

  19. Yeah, I was a member of the ACLU in the 90s. Until I got into a gun control discussion and went to look up their position…

    Fuck them for hypocrites.

  20. That is not nothing, but it is definitely not “defending all of the civil liberties.

    Just deny the other side’s place in the argument, and you always win. The OP is begging the question—which, at least from the ACLU point of view—is, “What is the extent and limit of the civil liberty to keep and bear arms?”

    Sullum just insists that it’s for gun advocates to define that question, and if the ACLU doesn’t accept the definition without question, then the ACLU isn’t willing to defend gun rights.

    More generally, it was Ben Franklin who pointed out that claims of rights always tend to shut down political debates. Judging by gun advocates’ conduct on this forum, that’s what they want and expect their claims to do. Anyone might wonder why the gun advocates participate in a discussion forum at all.

    1. The ACLU, before Heller, held the view that the 2nd amendment was a “collective” right. This was supported by some lower-court decisions, though not all, or even most, lower-court decisions decided thusly. After Heller, the ACLU changed it’s stance, at least for a while. Now they are back to their old stance. Some recently-leaked memos indicate they may be “softening” their stance on the 1st amendment as well, and might be more … “permissive” regarding limits on so-called “hate-speech.” This, too, is discomfiting. Returning to the 2nd amendment, nowhere, in any SCOTUS decision, even mentioning the 2nd, is there even a “hint” of some kind of “collective” right re the 2nd. “Collective” rights exist because the individuals within that group (in this case, “the people,” possess those rights. My “claims” as a “gun advocate” are hardly as shallow as you might wish them to be.

    2. “it was Ben Franklin who pointed out that claims of rights always tend to shut down political debates”

      I don’t get it; you say that like it’s a bad thing.

      But when I raise Eighth and Fifth Amendment objections to being boiled in oil without a trial, well, yes, I am trying to shut down a political debate about whether I have it coming. When I object to indefinite confinement in a labor camp for saying ‘Trump is a fink’, I am absolutely trying to use the First to shut down debate over whether Trump haters belong in labor camps. That is precisely what rights are supposed to do – to put certain infringements beyond the reach of demagogues, no matter how much they inflame the mob.

      1. Absaroka, demagogues like Franklin, who said it like it was a bad thing? I suggest Franklin remains worth paying attention to.

        You can have all the rights you can imagine, in your imagination. If you prefer rights you can vindicate, those have to be subject to discussion, or there will be no means to put power in place to stay the hand of government when you are too weak to do it yourself. Do you suppose the Heller decision could ever have issued if no discussion of the previous militia-interpretation of gun rights had been sacrosanct, and not subject to discussion?

        1. There has been a ton of discussion re the 2nd amendment over the last fifty years, primarily after the passage of the Gun Control Act of 1968 and handgun bans in places like Morton Grove. There was discussion after the Miller decision, too. There have been loads of historians, lawyers and other folks over the years writing about this. There will continue to be. Now I agree we need to get past the fringe on both sides of the issue, but the fact is, it’s not a right which should be so casually dismissed by so many. If you think I am a hard-ass re the 2nd amendment, be assured, I am more of a hard-ass re the others. 🙂

        2. I garbled the last sentence. Should be, “Do you suppose the Heller decision could ever have issued if the militia-interpretation of gun rights had been sacrosanct, and not subject to discussion?”

  21. I guess the ACLU does not REALLY believe in Marbury v Madison, if they did they’d agree that it’s not up to them to decide what the law is.

    “It is emphatically the province and duty of the judicial department to say what the law is.” – John Marshall

    Talk about cognitive dissonance at the ACLU…

    1. Danathar, so if a 15-member, gun-control-favoring Supreme Court comes along, and says Heller was wrongly decided, and the 2A is actually all about the militia, Marbury v Madison and you say, “Of course, it couldn’t be otherwise?”

      1. The 2nd amendment is not totally divorced from the militia. Following Miller, the Heller decision clearly indicates that the type of weapons which are protected are those in common use. Whether this includes weapons “used,” but not “owned” by members of the National Guard (the “organized” militia), is not really clear.

  22. Ira spoke at a Libertarian supper club I attended back in the 90’s. When questioned about this, he was quite frank: The 2nd amendment clearly guaranteed some sort of individual right, but the ACLU’s donor base might desert them if it admitted that.

    Mind you, as anyone who’s read those “no enemy to the left” recruiting letters knows, it’s no accident they have a donor base like that, it’s the sort of base they wanted.

  23. Glad I stopped donating to them when it was clear they were transitioning from a Civil Liberties non-profit to a Social Justice one.

  24. “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. ”

    That’s “the right of the people…”, as in the people have the right to keep and bear arms.

    It continues to amaze me that folks intentionally ignore the considerable background and contemporaneous documentation as to what this Amendment was declaring as a fundamental right, not to be infringed by government.

    “The constitution shall never be construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms.” Alexander Hamilton

    “[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation (where) the governments are afraid to trust the people with arms.” James Madison

    “A militia, when properly formed, are in fact the people themselves… and include all men capable of bearing arms.”
    Richard Henry Lee

    “A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.”
    George Washington

  25. The concept of a “collective right” is hilarious because it implies the right is only for defense of the country and is controlled by the government. In Federalist #29, Hamilton reluctently admits “ the only protection of a free people from the excesses of government is the right to keep and bear arms”. You cannot have such a right if the government controls how, where and when you exercise it. The Bill of Rights was written to explicitly outline the limitations on the government, not the people, therefore every right is an individual right.

  26. While a ban on bump stocks in itself might not raise constitutional concerns, the way this administration went about imposing the ban absolutely should raise concerns

  27. “The ACLU Defends Gun Owners’ Constitutional Rights, Except for the Second Amendment Right to Own Guns”

    Only the ACLU could be this fucked up.

  28. Hence the old joke: “How does an ACLU lawyer count to 10?”
    “1, 3, 4, 5. . .”

  29. Every other right enumerated in the Bill of Rights is an individual right (speech, assembly, worship, etc). Why would this ONE right be collective and not individual?

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