A Letter to the ACLU

by Bruce Clark baclark@med.pitt.edu

January 19, 1995

Mr. Ira Glasser
Executive Director
American Civil Liberties Union
132 West 43rd Street
New York, New York 10036

Dear Mr. Glasser:

I received a letter from Ms. Rita Buland, in response to one I wrote to Nadine Strossen. In it she included a copy of the ACLU's position on gun control and a letter which you wrote to another person on this subject, and Ms. Buland stated that you would be pleased to hear my response. I am enclosing the text of these documents in my response, indented and interleaved with my comments.

I hope that this contributes to some ongoing discussion on the issue, and does not just end up in the ACLU's dead letter office. Further, I think that it would be profitable for a discussion of this issue to appear before the general membership of the organization, perhaps in Civil Liberties. As I explain in the pages that follow, the organization's position on this issue is most incongruous and out of character, given the history of the ACLU.

Thank you for your attention.

Sincerely,

Bruce A. Clark

Dear ~

Thank you for your thoughtful letter of October 28. Let me try to explain our position on the Second Amendment fully.

1. Constitutional interpretation -- for every amendment -- involves a serious and often difficult effort to discern the civil liberties values that the amendment intended to protect in the 18th century and apply those values to a current case, often to facts not anticipated in the 18th century. Let me give you a couple of examples.

Public schools did not exist in 1791. Thus how are we to apply the principle of separation of church and state to public schools? This has caused no end of difficulties for constitutional analysis and adjudication in this area. Similarly, television and radio, much less E-mail and the Internet, were unimaginable in the 18th century; how then apply the First Amendment to these new forms of communication? One more: wiretapping was unimaginable when the Fourth Amendment was adopted. Does the Fourth Amendment's requirement of particularity in a search therefore render all wiretapping unconstitutional (because no tap can be limited to searching a particular place for a particular thing, but rather sweeps in entire conversations not only of the person targeted but of everyone who uses the phone or calls in on it) or should wiretapping be allowed if a warrant cites a particular piece of evidence to be overheard, notwithstanding the inevitable sweep of the search?

These are not trivial or easy questions, and the answers vary widely and have filled the pages of law reviews, judicial opinion books and countless public debates.

A similar problem is presented by the Second Amendment. I agree that the ACLU should not reflexively interpret every other amendment broadly and generously and interpret the Second Amendment narrowly and restrictively. That kind of reflexive discrimination of analysis could only indicate an outcome-generated bias unworthy of the ACLU. But nonetheless an analysis of the kind suggested above must be undertaken.

Unfortunately, this is exactly the approach that has been taken by the ACLU. When some issue concerning the First Amendment is considered, the ACLU says "This isn't right. Let's take it to court and argue that it is protected by the First Amendment." However, throughout this letter and the following policy statement, the attitude is "Gee, there have been a couple of Supreme Court decisions about this in the past and at first glance, it looks like maybe the Second Amendment has problems. I guess we should forget about it and be neutral."

When the ACLU was founded, the First Amendment was pretty well ignored and meaningless. Had the ACLU taken its current Second Amendment approach then, what would have happened? Would there be a reason for the organization's existence? I think not. The ACLU's attitude toward the Second Amendment can be compared to the Civil Rights Movement having taken the position that the issue of segregation was permanently settled by Plessy v. Ferguson and current practice -- a totally silly and hypocritical way of looking at it.

2. Even where constitutional prohibitions exist, regulatory restrictions may be permissible, as may minimal intrusions. For example, the First Amendment bars the government, without qualification, from passing laws that "abridge" free speech. But that doesn't mean the government can't limit the time, place or manner of speech, providing such limits are not pretexts for banning the speech itself. Thus, in granting parade permits, the government may enforce a first come first serve policy, may limit the use of loudspeakers outside a church on Sunday morning or too close to a school or a hospital surgery theater, may take steps to assure that picketers do not block entrances or exits and, where channels of communication are limited (as, until recently, they were on radio and television) may act as a traffic cop to avoid chaos and assure some semblance of fair access. Similarly, the right of a woman to terminate her pregnancy may be more limited during the third trimester, when there is a viable fetus, than during the first.

The constitutional right to personal autonomy may bar the government from forcing someone to undergo a certain course of medical treatment; the same principle may suggest the unconstitutionality of motorcycle helmet laws or seat belt laws, but few would consider the latter intrusions as serious as the former. The same is true of airport metal detectors, a search, to be sure, but one so minimally intrusive as to suggest to some that perhaps it would not be wise to challenge their use on Fourth Amendment grounds. To others, permitting such metal detectors to be used on everyone without the individualized suspicion usually required to justify a search is the beginning of the end of the principle itself.

Again, the examples are endless and reasonable people who support the basic constitutional principles involved often come out differently, even within the ACLU.

Thus, one question that needs to be considered when evaluating a particular government regulation of weapons is the degree to which such a regulation is constitutionally permissible even though banning private ownership of the weapon may not be.

But saying that it has been determined that many rights can be subject to regulation in certain circumstances is not the same as inviting or inventing enough possibilities for regulation that the ACLU needn't bother to address the issue at all. These regulations are compromises. One who truly cares about our rights doesn't start out looking for compromises. One tries to do what is right and suffers compromise when it is imposed.

For example, even if the Second Amendment prohibits the government from banning the private ownership of guns, may it require registration (as it does with cars)?

Cars are not a right covered by the first ten amendments, so comparing them with firearms is without merit.

With those general problems in mind, let me tell you what I think about what the Second Amendment means in the current contexts in which it arises.

First, it is not clear to me why the Second Amendment does not permit registration. The ACLU believes that soliciting contributions from supporters of civil liberties is an activity protected by the First Amendment. But virtually every state has charitable regulatory agencies that require us to register as a condition of mailing our letters. Lobbying -- petitioning the government for redress of grievances -- is certainly protected by the First Amendment. But a federal law and many state laws require lobbyists to register. We do it, as long as the registration does not become improperly intrusive and burden the First Amendment right. When it does, we resist. If we accept such registration in the First Amendment area, how can we be accused of applying different standard to the Second Amendment? All registration requirements are potentially abusive, but that doesn't mean all are necessarily abusive or unconstitutional on their face.

If the state regulatory agencies required the ACLU to register not itself, but its members and contributors, would the organization be so complacent about it? That would be a much more analogous situation to firearms registration. A bill appeared in Congress last year that was purportedly to control lobbying practices, but it went beyond requiring lobbyists to register; my understanding was that it required organizations that lobbied Congress to register the people they were representing. The newspaper reported that the ACLU was one of a number of organizations that opposed that bill. Was that news article in error? Or does the ACLU believe that requiring the registration of individuals who wish to exercise their rights is abusive of those rights? It would seem to me that, since the Second Amendment was written to promote the idea that people should be armed and prepared to have a role in the unorganized militia, it might be reasonable to register people who are eligible to serve in the militia, so that they could be mustered at need, but nothing else.

Similarly, if it is legitimate to deny guns to people convicted of armed robbery, as it may be legitimate to deny drivers licenses to people convicted of drunk driving, then a reasonable waiting period (e.g., the Brady bill) in order to find out whether the applicant is eligible is not unreasonable and only minimally intrusive of the right to purchase and own a gun. The ACLU did not support the Brady bill and I have said publicly many times that as social policy I thought it was symbolic political posturing and unlikely to work, but the constitutional question for the ACLU is: does it violate the Second Amendment? Does it interfere with the right to own a gun, or merely impose a reasonable regulation upon that right? We didn't support the bill, but we didn't think it violated the Second Amendment either, so we didn't oppose it. That isn't neutrality, it's basing our position, as we always do, on constitutional analysis.

First of all, this analogy to cars and driving is false; driving is not protected by the Bill of Rights.

Second, it would be more legitimate to compare the denial of firearms to convicted felons to the denial to those same felons of their right to vote. Both rights are fundamental to the political system in the United States. If one is legitimate, then I think that it is a reasonable argument that the other is, also. (See Lewis v. United States, 445 U.S. 55 (1980).)

Third, despite the propaganda put out by the proponents of the Brady Bill, this legislation has little to do with weeding out people who are prohibited from purchasing firearms, for several reasons:

• The Brady Bill does not require that a person wait until he or she is checked out. Rather, it requires that a person wait five days from the purchase until that individual may pick up the firearm. That might or might not be a sufficient time to accomplish that investigation task. The process of checking me out for a Pennsylvania permit to carry a concealed firearm took over three months, and the criteria are the same. Further, Federal judges in Arizona, Mississippi, Montana, Vermont, Louisiana and New Mexico have ruled that local officials are not obligated to check people out. I also understand that at least one judge has ruled the other way, so we'll have to wait and see how it turns out.

• The waiting period required by the law is five days. In reality, at least in Pennsylvania, it means five days from when the county sheriff 's office's acknowledgment of receipt of the paperwork is received by the store. This usually amounts to at least twelve days. If the store owner doesn't hear within that period that the person is prohibited from making the purchase, the person can pick up the firearm, whether or not he or she is a member of the prohibited class of people.

• A person who has already been checked out by the sheriff 's office and been issued a permit to carry a firearm is still required to wait five days. This delay accomplishes nothing with regard to preventing illegitimate firearm sales. It merely interferes with a person's right to purchase a firearm when he or she desires to.

• Those results which have been published show that an insignificant number of people are legitimately prevented from picking up their firearm because they are members of the prohibited class. The percentage of sales that are held up even temporarily is small, and the overwhelming number of those are because the person has some violation on his record like too many parking tickets, hasn't registered a dog, or hasn't paid property taxes, and the gun sales are eventually allowed to proceed. The only result is that a person has been needlessly prevented from exercising a Second Amendment right in a timely manner.

• The NRA proposed an alternative to the Brady Bill, the computerized instant check system, now implemented in several states. This legislation proposed to create the means to check a person's police record for felony convictions by computer at the time of the sale. If the proponents of the Brady Bill truly wanted to ensure that firearms purchases by felons were stopped, this system would have been accepted rather than the silly five-day waiting period.

• If the country were under attack, and the unorganized militia were called up, ought those people eligible but unarmed be required to wait five days to arm themselves and be ready to fight? Be serious! This is the heart of the issue. Whether for defense of country or defense of self and others, the weapon is required when needed, not five days later. Anything else is an unreasonable restriction.

Your mild reproof indicates to me that you essentially took the anti-Second Amendment lobby's arguments as good coin. Stating merely that the Brady Bill was "symbolic political posturing and unlikely to work" demonstrates that you don't care much about the constant, incremental gutting of the Second Amendment. This gang is perpetually saying that they just want a little regulation, then a little more, and then a little more. I'm afraid that you are in the position of the frog in the pot of heated water who gets cooked, because he can't feel the temperature slowly rising around him.

I think all proposed regulations need to be evaluated in this manner, and doing so does not create a distinction between the Second Amendment and all other amendments.

Would that this were true! The ACLU 's "neutral" stance on the issue of gun control and the arguments put forward in the documents that it has published indicates to me that little, if any, real constitutional, never mind historical, analysis has been done on this issue. The arguments are shallow and the examples given here and elsewhere are poor or inapplicable. The Second Amendment is not placed in the historical context of the older English right to keep and bear arms, both before and after the Declaration of Rights of 1689. The discussion of the development of this Amendment in the colonial and revolutionary periods of this country is non-existent. Where is all of the ACLU's analysis?

Second, there is the larger question of what civil liberties value the Second Amendment was meant to protect and how that value should be applied to current cases.

I believe it is fairly clear historically that the purpose of the Second Amendment was to protect the people against the armed tyranny of the federal government, i.e., to protect Americans against what military dictatorships have done the world over: repress the rights of citizens. It was not to protect deer hunters; it was to protect individual rights if it came to that.

There is also substantial evidence that it was intended to protect that much older right of keeping arms for self-defense. There is a good review of this subject in the Fall, 1993, issue of the Journal on Firearms and Public Policy, the official publication of the Center for the Study of Firearms and Public Policy of the Second Amendment Foundation. I found it on the Internet.

The irony was that the Second Amendment offered no protection against state governments because state governments were seen as a defense mechanism against federal tyranny. That is why state militias are referred to in the language of the Second Amendment. And since state militias were composed of ordinary citizens called up during times of emergency, like volunteer firefighters are today in towns all across America, the individual right to own muskets needed protection too because it was an integral part of the state militia. Unlike today, there were no armories where the national guard, once summoned, could obtain weapons.

This is very slick: you implicitly redefine the militia as the national guard, and anyone not paying attention might not notice it until too late. The national guard is not the militia, but an adjunct to the Federal military, and is hardly the vehicle for defending against federal tyranny, should that come about. The states can mobilize it for their own functions, but only as long as it doesn't interfere with the US government's designs for it. Any national guard armories are for their purposes, and have nothing whatsoever to do with the militia discussed in the Second Amendment.

When the militia was called, people came and brought their guns. That is why the argument over whether the Second Amendment protected only militia or conferred an individual right doesn't get us very far: in the 18th century, there was no essential difference. But the Second Amendment bar was directed exclusively at the federal government; when Wyatt Earp and other western marshals banned handguns in town no one then thought the Second Amendment had been violated.

For many years, right up to today, these same little towns thought (and think) that the First Amendment had nothing to do with them, and that they could deny the speech of anyone whom they didn't particularly like. Does that make it right? Has that kept the ACLU from defending the First Amendment in small towns?

And to this day, the Second Amendment (like the Third Amendment -- prohibiting the forced quartering of soldiers in private homes) has never been held by the Supreme Court to apply to any government but the federal government.

So one question is: if the Second Amendment is meant to protect us against armed government tyranny, is it the federal government or state and local governments or both?

This begs the real issue. If the people have the right to keep and bear arms, whether to defend themselves from the government or other dangers, or to protect the country in case of invasion, state and local laws do not have a right to interfere with this, whether or not people have a right to defend themselves from state governments. If people have the right to keep the guns, they will defend themselves against any government. This shows your question to be a nonsensical quibble.

Certainly, it's at least the federal government. But then a more difficult question arises. If the federal government ever decides to take away our rights to free speech or freedom of religion by force of arms and we need to resist, will handguns do it? Not likely. This is not the 18th century, and we're not talking about a government armed with muskets and an occasional cannon. At this time, in this place, if the government comes to repress us, we will need more than pistols or deer rifles. The government that vanquished Saddam Hussein will not be that easily stopped.

First, if the government decides to repress us and takes over the mass media, what good will the right to pass out leaflets and make speeches be? Shouldn't we just abandon the effort to protect the First Amendment now? This is just one more instance of defeatism-in-advance by the ACLU on the subject of the Second Amendment, and it is not very becoming for it to be said by its Executive Director.

Second, with hundreds of millions of weapons in the hands of people in this country, more particularly, in the hands of the friends, brothers and sisters, parents and cousins of the people who are going to be called on to do the government's repressive work, I think that they will be quite effective, without even being fired. And if they must be fired, recent history is full of examples of the difficulty of conquering armed entire populations by standing armies. Just read any newspaper.

To protect our liberty, we would need weapons commensurate with those the government already has: tanks, bazookas, attack helicopters, maybe even jet airplanes and submarines and missile launchers. And what about tactical nuclear weapons?

I am not being fanciful. The Second Amendment speaks of a right to bear arms not guns. Arms means weapons. And if the purpose of the right is to provide the people with the means to resist armed government tyranny, then how can the Second Amendment be read to be limited to protecting the right to private ownership of guns? But every time I ask this question, I receive a blank stare. Not even the NRA appears to support the private ownership of tanks and missiles. But why not? And where in the Second Amendment does its language suggest that ownership of some arms, but not others, is protected? If the Second Amendment can be read to distinguish between guns and other arms or even between nuclear and non-nuclear weapons, who is to decide on those distinctions when the language of the amendment itself does not do so? If it is to be Congress, then we are already outside the realm of constitutional protection. If the Second Amendment confers on individuals a private right of ownership of any and all arms, is that something you are prepared to support?

Raising these issues is neither obstructive nor begging the question. It is the question. I do not understand what the Second Amendment protects, or should protect, or even what people who want the ACLU to support the Second Amendment think we should support.

"The arms which every person is secured the right to keep and bear (in the defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State." State v. Duke, 42 Tex. 455, 458-59 (1875).

"The term 'arms' as used by the drafters of the constitutions probably was intended to include those weapons used by settlers for both personal and military defense. ... The term 'arms' would not have included cannons nor other heavy ordnance not kept by militiamen or private citizens." State v. Kessler, 289 Or. 359, 368, 614 P.2d 94, 98 (1980)

Can people "keep" and "bear" tanks, submarines, rockets, and nuclear weapons? These are not the weapons that the Second Amendment was discussing. They are standing-army weapons, not militia and personal protection weapons. You are right, though, that what is specifically protected are handguns, rifles and what the press has been calling "assault weapons", but I haven't seen or heard the ACLU speaking out against restrictions on any of these weapons. Have I missed something? Or is this whole issue just a smoke screen to cover the ACLU's neglect and lack of understanding of the Second Amendment?

For the moment, of course, we are dealing virtually exclusively with regulatory issues of the kind mentioned earlier in this letter. But the more fundamental questions are the more important ones. No other amendment raises quite such vexing issues.

These issues are not so tough to understand. If I, someone who is not a professional scholar or researcher, who doesn't have a degree in constitutional law and who has a day job to occupy his time, can manage it, so can you. Anyone who wants to try to understand the historical background can do it. Might I suggest a couple of sources? In addition to the publications of the Second Amendment Foundation, try To Keep and Bear Arms -- The Origins of an Anglo-American Right by Joyce Lee Malcolm, Harvard University Press, 1994. You would also benefit from reading Guns, Crime, and Freedom by your counterpart at the NRA, Wayne LaPierre, Regnery Publishing, Inc., 1994. This book is hardly a scholarly book; it is an agitational book that raises many issues and ideas that are well worth looking into.

And in my opinion, the only people who are truly vexed by these issues are people who are biased against or opposed to the Second Amendment, but can't think of a good way to justify dismembering the Bill of Rights.

I would appreciate your reaction.

Sincerely,
Ira Glasser

You have it. In turn, I would appreciate your reaction. As I have said above, the ACLU would be better served if this discussion took place in the pages of the organization's publications where all members could see it and have the opportunity to contribute. At the bare minimum, it should be carried on the organization's Internet site.

"Why doesn't the ACLU support an individual's unlimited right to keep and bear arms?"

BACKGROUND
The ACLU has often been criticized for "ignoring the Second Amendment" and refusing to fight for the individual's right to own a gun or other weapons. This issue, however, has not been ignored by the ACLU. The national board has in fact debated and discussed the civil liberties aspects of the Second Amendment many times.

Why hasn't the membership been included in these debates? We're the ones who pay the bills here. I've been paying them for about twenty years.

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 in order to assure their own freedom and security against the central government. In today's world that purpose 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.

The ACLU is neutral on the issue of gun control. We believe that the constitution contains no barriers to reasonable regulations of gun ownership. If we can license and register cars, we can license and register guns.

Most opponents of gun control concede that the Second Amendment certainly does not guarantee an individual's right to own bazookas, missiles or nuclear warheads. Yet these, like rifles, pistols and even submachine guns, are arms. The question therefore is not whether to restrict arms ownership, but how much to restrict it. If that is a question left open by the Constitution, then it is a question for Congress to decide.

ACLU POLICY
"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, US. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." -- Policy #47

The Miller case was quite narrow and the case did not make a judgment as sweeping as this. The Supreme Court decided not to determine whether a short-barreled shotgun could be taxed under the National Firearms Act, because it saw no evidence that addressed whether such a shotgun was a militia arm or not. The Court remanded the case for fact-finding based on the following: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Hump. 154, 158. 307 U.S. at 178."

The Court might have been wrong in its facts in Miller. Some 100,000 pump-action shotguns were supplied to the U.S. military by Winchester in World Wars I and II to serve as "trench guns". Winchester and Remington supplied shotguns for the Vietnam War, and Mossberg currently supplies shotguns to the Navy and Marines. I have no knowledge that these weapons were supplied with barrel lengths of less than eighteen inches. But the more important question to ask is: in wartime, would a soldier who converted, or sawed off, a barrel to match the barrel length of the weapon discussed in Miller have been arrested and charged with illegally carrying that weapon because it violated U.S. law and was unsuitable for military use? I doubt it, don't you?

ARGUMENTS, FACTS, QUOTES
"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." -- The Second Amendment to the Constitution

"Since the Second Amendment ... applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right to possess a firearm" -- U.S.& v. Warin (6th Circuit, 1976)

How about these, gleaned from the readings suggested above:

The Miller decision referenced Commentaries on the Constitution 646 (5th ed. 1891), where Justice Story stated: "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

"One of the ordinary modes, by which tyrants accomplish their purpose without resistance is, by disarming the people, and making it an offense to keep arms. ..." J. Story, A Familiar Exposition of the Constitution of the United States, p. 264 (1893).

The Miller decision also referenced T. Cooley, Constitutional Limitations, p.729: "Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms ... The alternative to a standing army is 'a well-regulated militia'; but this cannot exist unless the people are trained to bearing arms." Cooley's General Principles of Constitutional Law, pp. 281-282 (2d ed. 1891), states further: "The right is General -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent ... The meaning of the provision undoubtedly is that the people from whom the militia must be taken shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose."

There were eight state bills of rights adopted before the federal Constitution. Four of them recognized the right of "the people" to bear arms. Not one of these were contained in a militia clause, nor was the term "bear arms" limited to wartime usage. For example, the Pennsylvania Declaration of Rights, Art. XIII (1776) provided: "That the people have a right to bear arms for the defense of themselves, and the state. ..." Patrick Henry argued in the Virginia ratifying convention that "the great object is, that every man be armed. ... Everyone who is able may have a gun." The Virginia convention proposed a declaration of individual rights that included: "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."

Justice Marshall states, in Regents of the University of California v. Bakke, 438 U.S. 265, 397 (1978): "The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen's Bureau Act." Justice Marshall concluded that the rights identified in that act were dispositive of Congress' intent in the Fourteenth Amendment. When passed over President Andrew Johnson's veto, the Freedmen's Bureau Act protected the "full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms".

The Report of the Subcommittee on the Constitution, Senate Judiciary Committee, 97th Cong., 2d Sess. 12 (1982), states: "The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."

"At each stage of its passage through Congress the arms amendment became less explicit. Doubtless congressmen felt no qualms about streamlining the language and omitting explanatory phrases because their constituents shared an understanding of the institutions and opinions behind it. But, in the long term, these understandings have vanished and brevity and elegance have been achieved at the cost of clarity. Modern writers, lacking the benefit of the historical tradition upon which the Second Amendment was based, have derived an astonishing variety of meanings from its single sentence. They argue, for example, that the purpose was only to preserve the states' powers over state militia; that the amendment merely protects the right of members of a militia -- the National Guard of today -- to be armed; and that the language 'the right of the people to keep and bear arms' should not be interpreted to grant to any individual a right to own a weapon. Lawrence Cress, for example, has maintained that the term 'the people' in the Second Amendment means that a 'collective' rather than an individual right is intended. Yet this idiosyncratic definition founders because it cannot be reasonably applied to the First, Fourth, Ninth and Tenth Amendments, where references are also made to 'the people.'

...

"The Second Amendment was meant to accomplish two distinct goals, each perceived as crucial to the maintenance of liberty. First it was meant to guarantee the individual's right to have arms for self-defense and self-preservation. Such an individual right was a legacy of the English Bill of Rights. This is also plain from the American colonial practice, the debates over the Constitution, and state proposals for what was to become the Second Amendment. In keeping with colonial precedent, the American article broadened the English protection. ... Americans swept aside these limitations and forbade any 'infringement' upon the right of the people to keep and bear arms.

"These privately owned arms were meant to serve a larger purpose, as well, albeit the American framers of the Second Amendment, like their English predecessors, rejected language linking the right to 'the common defense.' When, as Blackstone phrased it, 'the sanctions of society and laws are found insufficient to restrain the violence of oppression,' these private weapons would afford the people the means to vindicate their liberties. "The second and related objective concerned the militia, and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public, and Madison's original version of the amendment, as well as those suggested by the states, described the militia as either 'composed of ' or 'including' the body of the people. A select militia was regarded as little better than a standing army. The argument that today's National Guardsmen, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation. Indeed, it would seem redundant to specify that members of a militia had the right to be armed. A militia could scarcely function otherwise. The House committee eliminated the stipulation that the militia be 'well- armed,' and the Senate, in what became the final version of the amendment, eliminated the description of the militia as composed of the 'body of the people.' These changes left open the possibility of a poorly armed and narrowly based militia that many Americans feared might be the result of federal control. Yet the amendment guaranteed that the right of 'the people' to have arms not be infringed. Whatever the future composition of the militia, therefore, however well or ill armed, was not crucial because the people's right to have weapons was to be sacrosanct. As was the case in the English tradition, the arms in the hands of the people, not the militia, are relied upon 'to restrain the violence of oppression.'" To Keep and Bear Arms -- The Origins of an Anglo-American Right by Joyce Lee Malcolm, pp. 161-3.

Unless the Constitution protects the individual's right to own all kinds of arms, there is no principled way to oppose reasonable restrictions on handguns, Uzis or semi-automatic rifles. If indeed the Second Amendment provides an absolute, constitutional protection for the right to bear arms in order to preserve the power of the people to resist government tyranny, then it must allow individuals to possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to imagine any serious resistance to the military without such arms. Yet few, if any, would argue that the Second Amendment gives individuals the unlimited right to own any weapons they please. But as soon as we allow governmental regulation of any weapons, we have broken the dam of Constitutional protection. Once that dam is broken, we are not talking about whether the government can constitutionally restrict arms, but rather what constitutes a reasonable restriction.

This is silly. It is just more looking for excuses to treat the Second Amendment differently from the First.

The 1939 case US. v. Mlller is the only modern case in which the Supreme Court has addressed this issue. A unanimous Court ruled that the Second Amendment must be interpreted as intending to guarantee the states' rights to maintain and train a militia. "In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument," the Court said.

See the above discussion of Miller.

In subsequent years, the Court has refused to address the issue. It routinely denies cert. to almost all Second Amendment cases. In 1983, for example, it let stand a 7th Circuit decision upholding an ordinance in Morton Grove, lllinois, which banned possession of handguns within its borders. The case, Quilici v. Morton Grove 695 F.2d 261(7th Cir. 1982), cert. denied 464 U.S. 863 (1983), is considered by many to be the most important modern gun control case.

RESOURCE LIST

Our neutrality on this issue means we have relatively few resources explaining our stance.

This is a shameful statement for the ACLU to make. Adopting neutrality, or any other position, on an issue should be the result of much consideration. Stating that the organization doesn't have the resources to explain its stance is an admission that it didn't have the resources to create its stance in the first place, and that this "neutral" stance is not the result of a consideration of law and history, but one of ignorance and prejudice.

In the course of responding to our detractors, however, we have assembled some of the literature they use in trying to sway our position. The most common are the following:

The Second Amendment, Political Liberty, and the Right to Self-Preservation (Alabama Law Review, 39:1:103) by Nelson Lund. Although the author terms the Second Amendment "the most embarrassing provision of the Bill of Rights," he concedes in the end that some type of licensing scheme is supportable, and in the case of individual ownership of nuclear weapons, perhaps even necessary. He thus eviscerates any argument that the Second Amendment provides an absolute protection for the right to bear arms.

The Embarrassing Second Amendment, (Yale Law Journal, December 1989), by Professor Sanford Levinson. This article does not take sides, but does raise interesting questions about the constitutionality of gun control laws. Staunch advocates of individual ownership rights are usually familiar with this article and often expect us to respond to some of the arguments it presents. Copies are available from the national office or the Yale Law Journal Co. Inc.

And the fact that the only two items that the ACLU can come up with to explain its stance are hostile to the Second Amendment is the clearest indication of bias that I can imagine.

ACLU/Department of Public Education/September 23, 1991

1991??? A lot has happened since then. This gives new meaning to the word "neglect".

[This section appears, without the Resource List and without the 1991 date, in the ACLU's Web site.]

"We are not forced into lockstep with our forefathers. But we owe them our considered attention before we disregard a right they felt it imperative to bestow upon us." To Keep and Bear Arms -- The Origins of an Anglo-American Right by Joyce Lee Malcolm, p. 177.