The ACLU Hasn't Changed Its Tune

ACLU President Nadine Strossen recently gave an interview to Reason magazine. In it, she was asked about the ACLU's position on the Second Amendment:

Reason: So why doesn't the ACLU challenge gun-control laws on Second Amendment grounds?

Strossen: We reexamine our positions when people come forward with new arguments. On the gun issue, I instituted a reexamination a few years ago in response to a number of things, but the most important one was an article by Sanford Levinson at University of Texas Law School that summarized a wave of new historical scholarship. Levinson's argument was that in the 18th century context, a well-regulated militia meant nothing other than people in the privacy of their homes.

So we looked into the historical scholarship there and ended up not being persuaded. The plain language of the Second Amendment in no way, shape, or form, can be construed, I think, as giving an absolute right to unregulated gun ownership. It says, "A well-regulated militia being necessary to the security of a free state, the right to bear arms shall not be infringed." Certainly, when you have the notion of "well-regulated" right in the constitutional language itself, it seems to defy any argument that regulation is inconsistent with the amendment.

Putting all that aside, 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.

Pardon the hell out of me, but why the hell do you think they put it in the Bill of Rights? What this means is "We're the ACLU - WE define what is and what isn't a civil liberty."

Strossen: So the question becomes, What is the civil-liberties argument of those who would say we should be opposing all gun control? What it 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. I would hope that's the kind of thing we do through words rather than through guns and that, to me, is the function that the First Amendment serves, not the Second Amendment.

Reason: Would you support a total ban on gun ownership?

Strossen: We might very well oppose that. I would think that our present policy would not foreclose opposing that the way we oppose many other kinds of prohibition, such as drug prohibition.

Let's go back to that statement: "What it 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. " 

I'll tell you what the civil-liberties argument of those who would say you should be opposing all gun control is, Nadine: It's the same reason you fight each new attempt to infringe the First Amendment - to keep it from coming to the point where you have to defend elimination of the right in its entirety. So you never have to fight a "total ban on ownership." If it comes that far, it's too late.

Her quote reminded me of something I wrote a while back, so I'm going to dredge that up, too. I wrote the original piece back in December of 2000 on the ThemeStream site (now long gone) because of the ACLU of Massachussetts defending NAMBLA in a First Amendment case, but no ACLU chapter has ever (to my knowledge) defended a Second Amendment case. I wondered why that was, so I looked:

It has been said that if the ACLU defended the Second Amendment with the same vigor that it defends the remainder of the Bill of Rights, gun ownership in America would be mandatory. I respect the ferocity with which they defend unpopular causes. I do not always agree with the ACLU position, but I understand the idea of the "slippery slope" - that any infringement on a right makes the next infringement easier. They protect every word of the Bill of Rights with the tenacity of a pit bull, regardless of the odiousness of those groups who bring the cases.

Every word except for these:

"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."

I have been somewhat at a loss to understand that lack. I recently visited their web site and found their explanation for it. Let me quote:

"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."

Think about that position for a moment. I did, and it made me angry. Very angry. The ACLU has just shown itself in a few words to be completely hypocritical. They didn't even try to hide the fact in their language, it's out there for anyone with a sixth-grade level of reading comprehension to pick up.

Primarily a collective one.

Intended mainly to protect the rights of the states.

Reasonable regulations.

Somewhat anachronistic.

However, the ACLU has no problem defending the North American Man-Boy Love Association in what they consider to be a First Amendment case of free speech. NAMBLA was named in a lawsuit as an accomplice in the rape and murder of a young boy by a member of the organization who, just before committing the crime, accessed the groups web site for mental reinforcement. No, the ACLU claims that there is no such thing as a "bad idea". Their press release on this case states:

"The principle is as simple as it is central to true freedom of speech: those who do wrong are responsible for what they do; those who speak about it are not. It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive."

No wishy-washy weasle words here. The freedom of speech isn't primarily a collective one. It isn't there mainly to protect the rights of individuals. It isn't subject to reasonable regulations. Freedom of speech can't be licensed or registered. It is treated as an unlimited right.

And apparently those who do wrong with a firearm aren't responsible for what they do, for the ACLU won't defend firearms manufacturers in similar lawsuits.

No, the primary reason the ACLU declines to defend the Second Amendment is clearly expressed in the sentence "...that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles." Sanford Levinson, in his essay "The Embarrassing Second Amendment" addresses that position:

"...if one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights?"

Yes, why don't we? And why does the ACLU feel comfortable doing it to the Second Amendment? How do they justify to themselves defending all other "rights of the people" as individual rights, and ignoring only one as "primarily a collective right"?

UPDATE:  As of August 8, 2013 due to the herculean efforts of reader John Hardin, the original JS-Kit/Echo comment thread for this post is now available (for reading only) here.

And the ACLU STILL hasn't changed its tune, ten years later.