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.]