The hypocrisy of the ACLU

By Dr. Jeremy Blanks
web posted July 3, 2000

I consider myself to be a Constitutionalist and a believer in Jeffersonian principles. Some may ask, what is a Constitutionalist or Jeffersonian principles? Well, in general terms it means that I strongly support the Constitution as the law of this land and especially the Bill of Rights. Specifically, it means that I believe in individual rights. There are numerous organizations out there that support and fight every day for these rights. The National Rifle Association (NRA) is such a group as is the American Civil Liberties Union (ACLU). The ACLU is well known for its court, political, and media battles in support of First, Fourth, Fifth, Tenth, etc. Amendment rights. I am drawn to these organizations, due to my beliefs, and I generally support their positions in defending and preserving our rights from those that would limit or remove them.. However, I have become concerned about the ACLU, which has decided that the Second Amendment is not worthy of their support as are the other individual rights specifically listed in the Bill of Rights.

The ACLU takes this odd position on the Second Amendment for two primary reasons, along with a fall back stance. First, they have decided that the term "the people" that is contained in the Second Amendment does not apply to "the people" as it does in all of the other rights contained in the Bill of Rights. Instead, they take the position that this is a collective right and can only be assigned to a militia group, such as the National Guard, which means that Congress can limit or remove gun ownership as they see fit. Secondly, they cite the 1939 Supreme Court case of US. vs. Miller, as proof that the Supreme Court agrees with their beliefs. And finally, they take the fall back position that even if their first two reasons do not hold water, the Second is now outdated because the founding fathers could not have envisioned the type of arms that are currently available and the dangers of a few using firearms in criminal activity outweigh the value of this right to society.

Let's first address the position of the ACLU that the Second Amendment is a collective right rather than an individual one. Their entire position rests on the assumption that the term "the people" in the Second Amendment is different from the term "the people" that is used everywhere else in the Constitution and throughout the Bill of Rights. In further support of their position, the ACLU argues that the term militia is made in reference to something like the National Guard. Many people buy into these arguments without taking a close look at the Second Amendment and other supporting documentation. However, if one takes the time to only mildly explore the actual meanings here, they come to a very different conclusion. For example, the only way to assume that "the people" is a collective right in the Second Amendment is to apply that very same definition to much if not all of the Constitution and Bill of Rights. Of course, that would mean that rights such as freedom of speech, press, etc. could be interpreted as collective rights rather than individual ones and therefore subject to limitations and removal of such rights listed for "the people" by Congress and other legislative bodies. Of course, that's exactly what the ACLU's position is on the Second Amendment, but in all other cases the ACLU does not support such a stance and has made it their only goal to oppose such things. How could the ACLU take such an odd position? Well, maybe it's that term "militia." When it comes to the term "militia" and this assumption by the ACLU, there is a significant body of information, which clearly indicates that the term "militia" means every able-bodied and law-abiding person. In addition, there are no quotes or written documents from the founders that would even lead one to suspect anything other than the definition commonly accepted by most constitutional scholars, i.e. the militia is the people. If anything, there is a wide collection of quotes that say just the opposite as compared to the ACLU's assumption. A few of the major ones are as follows:

"I ask, who are the militia? They consist now of the whole people, except a few public officers." George Mason, Virginia's U.S. Constitution Ratification Convention, 1788.

"That the people have a right to keep and bear arms; that a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state." George Mason, Virginia ratification convention, 1788.

"What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped." James Madison, Federalist No. 29.

"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788.

"Militias, when properly formed, are in fact the people themselves and include all men capable of bearing arms." Richard Henry Lee, Letters from The Federal Farmer, 1788.

"Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." Federal Gazette, June 18, 1789.

Clearly, the ACLU's position here is not supported by any of the words of the founders nor is it supported when viewed against the rest of the Constitution and Bill of Rights. Without a doubt, one must conclude on this point that the Second Amendment is an individual right and the ACLU is absolutely wrong.

The second stance by the ACLU that involves the 1939 Supreme Court case of U.S. vs. Miller is equally flawed as their first belief. This case is the only time the Supreme Court has had the opportunity to directly rule on the constitutionality of federal firearm statues during the 20th century. In this case, the court ruled that "in the absence of any evidence that the use or possession of a shotgun with a barrel of less than eighteen inches has a reasonable relationship or use in a militia, we cannot say that the Second Amendment guarantees the right of one to keep such an instrument." In addition, the Court ruled that the weapon in question was not any part of the ordinary military equipment or that its use could contribute to the common defense. Clearly, for the keeping and bearing of a firearm to be constitutionally protected, the firearm should be a militia or military type weapon. Also, the Court noted that the militia consisted of "all males physically capable of acting in concert for the common defense when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." The court implicitly rejected the belief that only those members of a specific militia are covered under the Second Amendment when it did not discuss whether there should be evidence that the defendants met the qualifications for inclusion in the militia. Clearly, they understood that the militia was all of the people. The rulings from this case are not supportive of the ACLU's position whatsoever, and in fact one could easily make an argument that if challenged, the bans on certain types of semiautomatic rifles, such as that included in the Brady Crime Bill and found in states such as New Jersey and California, are unconstitutional and would be struck down if challenged. As with the first position of the ACLU, one must conclude that there is little or no evidence to support their position. In fact, one would have to argue that the evidence supporting the opposite view presented by Second Amendment advocates is overwhelming.

The fallback position taken by the ACLU on the Second Amendment is possibly the most damaging to their overall position on individual rights. The ACLU argues that even if their first two stances are incorrect, as has been abundantly shown here and in other articles, the Second Amendment is still subject to any restrictions set forth by Congress, because the founders could not have foreseen the development of modern small arms and the potential danger from the few that would cause harm with firearms outweigh their overall value. Besides the fact that millions of crimes are prevented each year because law-abiding citizens possess firearms, the problem with this position is that the same argument applies to any of the individual rights listed in the Bill of Rights. In fact, such an argument has been used against the ACLU during court battles over the First Amendment. For example, surely the founders could not have expected the development of hate groups and their use of the First Amendment to further their divisive message. The vast majority of Americans, myself included, find such positions to be reprehensible and offensive, but yet the ACLU has fought many battles to insure that these people have the right to spread their message of hate. One could easily argue that the damage caused by racism and hate in this country are significant and in reality far more damaging on a much larger scale than anything a shotgun in ones closet could ever cause. Another example of where the ACLU has strongly opposed any regulation on the First Amendment rights is the Internet. Unquestionably, the founders could not have anticipated the development and explosion of use of the Internet as we have today and will experience in the coming decades. There are many great advantages to the Internet and we have only begun to scratch the surface, but yet there is also a dark side to the Internet. For example, there are negative Internet sites that range from groups spreading their messages of hate and lies, to descriptions of bomb making devices and how-to manuals, and finally to pornography. Does the existence of a few negative sites out of the millions of good sites mean that the entire Internet should be regulated and the First Amendment restricted? The ACLU says no. As with their first two positions on the Second Amendment, the ACLU's fallback position again does not hold water. With any freedom, there will always be those that abuse it and take advantage of the situation to further their positions. There will always be new challenges to any right and new ways to use it. Some good and some of a questionable nature. This is true of the Second Amendment as well as the First and other amendments. This is simply the price of freedom.

Having gone through this process of dissecting the position of the ACLU on the Second Amendment, the question now becomes why do they take such an odd stance that is counter to their supposed beliefs in individual rights? Why do they not join the NRA and other Second Amendment advocates in supporting all individual rights? I believe the answer comes down to a couple of issues. First, the vast majority of the members and leadership of the ACLU have never fired or maybe even held a firearm. Their knowledge base around firearms has been developed through movies, television, and the media. Therefore, many view firearms and firearm owners as a threat. Furthering their perceived fear of firearms is a belief that various firearm related activities, such as hunting, are unacceptable in a civilized society. And lastly, their lack of contact with firearms and knowledge around the subject makes it easy for them to believe that the rights listed under the Second Amendment are, in the arena of individual rights, unnecessary and even expendable. Until the members and leadership of the ACLU overcome their hypocritical desire to lessen the individual rights of those that they don't understand or agree with, they will never truly be viewed as an organization interested in supporting individual rights. Rather, they will be considered just another special interest group with a "holier than thou" belief system when it comes to the Second Amendment. Let's all hope that the ACLU quickly realizes the error of their ways on this topic and in turn joins the NRA in the fight for civil rights.

Dr. Jeremy Blanks is a Senior Research Scientist with the leading R&D company in the world. He has a wide range of interests, but lately has focused on the right to self defense.

Current Issue

Archive Main | 2000

Musings - ESR's blog

E-mail ESR


Loading

Send a link to this page!

 


Home

1996-2013, Enter Stage Right and/or its creators. All rights reserved.