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That's a pretty weak argument. The ACLU undeniably supports Second Amendment rights. They do disagree with the Heller decision, but they don't actively oppose

That's a pretty weak argument. The ACLU undeniably supports Second Amendment rights. They do disagree with the Heller decision, but they don't actively oppose it. They do support the same fundamental argument behind the Miller decision that is cited by gun owners as a pro-gun rights position[0]. In their own words, they tend not to take Second Amendment cases because those are already handled by many other, much more well-funded organizations. Whereas the ACLU spends a lot of its money on causes that aren't supported by as many other groups. [0] The Miller decision is cited by both gun rights advocates and gun control advocates for different reasons, but the part of the Miller decision from which the ACLU derives its own position is one which is fundamentally supported by gun rights advocates - the ACLU just happens to take a less expansive view of that decision.

wahern 10y ago
I agree the argument upthread is weak, but your defense of the ACLU is kinda weak, too. The ACLU's official legal stance on the 2nd Amendment is that it protects a collective right, not an individual right. And that collective right is, as a practical matter, reposed with the state. See https://www.aclu.org/other/second-amendment https://www.aclu.org/other/second-amendment In other words, the ACLU sees the 2nd Amendment as a states' rights issue. But we we all know that states' rights is a loaded term in American political discourse. It was originally coined to defend Federal laws which affirmed property interests in slaves traveling in Northern states. In other words, the issue of the day was the slave holding states' rights to pass laws defending the property rights of its slave holders. And the argument was that if those property laws could be ignored once a slave fled to a non-slave state, it effectively diminished states' rights to protect the interests of its citizens (i.e. property interests in slaves). The biggest reason why the ACLU takes the legal stance it does is because many of its supporters support a so-called right to be free of violent crime. In particular, that means the right of local communities suffering from criminal gun violence to pass laws restricting gun rights. Initially that was a round-about way of referring to black, inner-city communities, but with the increasing attention given to gun massacres in predominantly white, suburban, areas, that "right to be free of violent crime" has become more inconclusive. It's important to understand as a legal matter the ACLU's stance effectively advances a states' rights argument, albeit in a narrow circumstance. However, their policy explanation for why they're doing that is couched in terms of what's effectively an individual right, specifically the right to be free of gun crime. The policy justification is arguably consistent with the ACLU's usual focus on human rights matters, but also rather inconsistent from a legal perspective in that the concept of a right to be free of [gun] crime as an excuse to limit others freedom is quite tortured. The history regarding states' rights issues, and the perpetual discriminatory treatment of minorities--specifically black minorities--by states that traditionally defend gun rights adds several layers of complexity. That complexity is important and relevant, but it doesn't justify the tortured conceptual logic of the ACLU's policy reasoning. From a purely textual and historical perspective I think it's pretty much beyond dispute that the 2nd Amendment was about preservation of states' powers to regulate (or not regulate) guns. Many state constitutions had clauses that specifically framed it as an individual right. So, yes, gun rights were often and widely seen as an individual right in some places. But the Federal constitution was almost exclusively focused on defining the limits of when and how federal legislative powers trumped state legislative powers. So while the federal government couldn't pass laws abridging political speech, states were free to do exactly that for 150 years. That's why the 1st Amendment isn't couched in terms of an individual right, but in terms of restricting federal powers--... shall make no law ... abridging the freedom of speech. That's because the real issue of the day was whether the federal government could pass laws that interfered with state laws protecting _or_ restricting behavior. It's only where the Federal government was expected to have a direct and necessary relationship with an individual person (eminent domain, search & seizure, trial) where things are framed as individual, inalienable rights. This was especially important in matters of gun rights. Because the federal government had ultimate authority to command state militias, states were afraid the federal government would limit their ability to defend themselves. The right of a state to defend itself basically boils down to the ability to prevent and suppress insurrections and rebellions, especially but not exclusively slave rebellions. Controlling that meant states needed the freedom to both protect the gun rights of some people, but also to limit the gun rights of other people, and to generally regulate guns however they saw fit. Different states might have wildly differing laws based on their circumstance. (You can sort of see how that fits the ACLU's logic of freedom from crime, but the perspective is still different--securing a state's regulatory power vs focusing on a very specific, individual "right". But after the Civil War, and in particular the passage of the 13th and 14th Amendments, there began a shift of using Federal constitutional laws to limit both federal and state powers, and thus a shift toward emphasizing particular individual rights. Remember, the inalienable rights Jefferson mentioned in the Declaration of Independence were vague--life, liberty, and happiness. The next sentence says that the way to secure those vague rights was by securing the ability of men to govern themselves. It's a defense of democracy. It doesn't proscribe rules for limiting government power; on the contrary it affirms the power and legitimacy of self government to contravene pre-existing laws and limitations in order to secure individual rights as they saw fit. And in the context of a federal government, the highest concern was preserving the power of those individual state governments to address liberty issues as they best saw fit. The Civil War finally proved how limiting that conception of government was in actuality, even though it was long theoretically understood. It proved that even well-governed democracies were prone to act in a tyrannical manner even despite their own laws. (The 14th Amendment secures the right to equal protection of the laws.) The nation wasn't yet prepared to tackle that dilemma until it became an existential issue 80 years later. But the point is, you can't read the Federal constitution in terms of individual rights. Little of the original text makes sense from that perspective. But neither can you understand and explain subsequent legal and political reasoning, and the evolution of that reasoning, without understanding the complete history.
- chimeracoder 10y ago
  First, I appreciate the time you took to write a thoughtful response. Second, I wouldn't really say I'm defending the ACLU here - namely because I disagree with their stance. I won't go into why I disagree, because it's not relevant, but the point of my comment was to point out that the original argument (which comes from an incredibly right-wing website - just take a look at the front page) overstates the case that the ACLU is anti-gun. But finally - the 'states rights' aspect of it is more complicated. The ACLU, I'll point out, doesn't use the term "states rights" (which I agree is a dog-whistle term). They refer to the right being held by the state, but unlike the specific term "states rights", that's not always a coded concept. And I think the thing that's missing in your argument is the basic fact of where the topic of gun control actually arose in US public discourse. You do allude to it here: > Initially that was a round-about way of referring to black, inner-city communities, but with the increasing attention given to gun massacres in predominantly white, suburban, areas, that "right to be free of violent crime" has become more inconclusive. Simply put: gun control was not a mainstream issue until black Americans[0] started arming themselves in large numbers and (importantly) in an organized manner. That was the tipping point that brought gun control into mainstream attention, and the early organized anti-gun groups had a very noticeable (albeit coded - not always explicit) anti-black agenda. [0] Not just the Black Panthers - even Martin Luther King Jr. was a very adamant gun owner.
  - wahern 10y ago
    But from the perspective of gun owners a collective/state right isn't comparable to an individual right. Decades ago the ACLU was quite anti-gun. The only reason they got roped into the gun debate (something of a pointless distraction for them) is because of their work with minority communities, their work in helping them deal with the consequences of increasing violent crime during the 1970s and 1980s, and in particular their help in strategizing responses to state and federal laws that they thought were causative or contributive factors of that crime. The ACLU began to believe that equality couldn't be promoted merely by defending the existing panoply of liberties; that to defend civil liberties you had to arm communities with new legal tools to fight what were perceived as biased and oppressive behavior maintained in the guise of equality and liberty. (Just like the original function of the states' rights debate was to protect slavery by appeal to notions of liberty.) And part of that biased behavior was state governments ignoring the plight of some black communities wrt to gun regulation. (As you alluded to, the the prejudice is laid bare by the fact that many of same people and institutions that are today rabidly anti-gun regulation were previously very much pro-gun regulation at the height of and in direct response to the Black Panthers and black power movements, and in particular the movements for them to become armed.) From the the ACLU's perspective, smart gun regulations could help reduce crime without imposing any undue constraints on legitimate uses of guns. The ACLU and their supporters' notions of legitimate use are clearly in opposition to that of many gun rights proponents--at least the vocal ones who managed to define the debate. So early on the ACLU provided assistance to communities and legislators writing laws which restricted gun use. And they weren't doing it out of concern about the breadth of those laws. Rather they did so to try to make them as broad as legally and politically possible. It would be sort of like the ACLU not only defending the KKK in a free speech law suit, but helping them write their propaganda. The former defends a principle, the latter is difficult to defend by saying you're just helping them to stay within the bounds of the law. After the conservative movement gained steamed during the 1980s and 1990s, and after it thoroughly internalized the values and legal reasoning of the rabidly pro-gun rights movement, the ACLU began to see the writing on the wall. It also helped that there always existed conflict internally about their choice to take an official legal stance and to inject itself into the debate at the cost of considerable political capital on other issues. So the past 10 or so years has seen an unwinding of the ACLUs stance and remediation of the trouble it has caused them. That unwinding includes cooperation with the NRA on blocking some federal regulations. It was a very strategic assistance, though perhaps I'm being overly cynical. But from what little I've read internally it created some serious discord because a large contingent of support inside and outside the ACLU comes from the social justice movement, for which gun regulation is a huge issue. In the next few years don't be surprised if they just silently move away from the issue altogether. I doubt they'll ever affirm an individual right, but they don't have to affirm it. The whole issue was always a distraction from more pressing and important work. Gun violence is a real problem, but it's not something the ACLU is well-situated in any shape or form to help deal with. Better to stop antagonizing guns rights activists, especially when it feeds political divisiveness at at moment when they need all the cooperation they can find fighting for voting rights. And the focus on voting will rightly serve as a distraction for the powerful interests that kept the ACLU in the gun debate for so long. Plus, the debate is largely over. The law of the land is that gun rights are an individual right under the Federal constitution. End of story. I may disagree with their historical reasoning and some of their legal justification, but I accept that their decision provided finality to both the legal and and political debate. There are alot of unanswered questions, but I don't think they'll be at all consequential. And for the record, I'm not anti-gun. I'm not afraid of guns. I've shot plenty of guns, including machine guns. I'm comfortable around guns. I'd like to see more open carry and less concealed carry. IMO too many politically left-leaning people have an irrational fear of guns. And while I don't deny that gun regulation could and arguably has limited crime in some countries, I don't think it would be particularly effective nor viable in the U.S. Our gun culture is too strong to make it politically viable, and our society is too violent (criminals and police) for it to really have any effect on street level violence. More regulation won't make the violence go away. What will almost certainly make it go away is less regulation of drugs. I'm not pro-drug, either, but I'll take stepping over more passed out heroin users on the streets than having to worry about dodging bullets. I'd prefer neither, but you can't have everything.

wahern 10y ago

I agree the argument upthread is weak, but your defense of the ACLU is kinda weak, too. The ACLU's official legal stance on the 2nd Amendment is that it protects a collective right, not an individual right. And that collective right is, as a practical matter, reposed with the state. See https://www.aclu.org/other/second-amendment https://www.aclu.org/other/second-amendment In other words, the ACLU sees the 2nd Amendment as a states' rights issue. But we we all know that states' rights is a loaded term in American political discourse. It was originally coined to defend Federal laws which affirmed property interests in slaves traveling in Northern states. In other words, the issue of the day was the slave holding states' rights to pass laws defending the property rights of its slave holders. And the argument was that if those property laws could be ignored once a slave fled to a non-slave state, it effectively diminished states' rights to protect the interests of its citizens (i.e. property interests in slaves). The biggest reason why the ACLU takes the legal stance it does is because many of its supporters support a so-called right to be free of violent crime. In particular, that means the right of local communities suffering from criminal gun violence to pass laws restricting gun rights. Initially that was a round-about way of referring to black, inner-city communities, but with the increasing attention given to gun massacres in predominantly white, suburban, areas, that "right to be free of violent crime" has become more inconclusive. It's important to understand as a legal matter the ACLU's stance effectively advances a states' rights argument, albeit in a narrow circumstance. However, their policy explanation for why they're doing that is couched in terms of what's effectively an individual right, specifically the right to be free of gun crime. The policy justification is arguably consistent with the ACLU's usual focus on human rights matters, but also rather inconsistent from a legal perspective in that the concept of a right to be free of [gun] crime as an excuse to limit others freedom is quite tortured. The history regarding states' rights issues, and the perpetual discriminatory treatment of minorities--specifically black minorities--by states that traditionally defend gun rights adds several layers of complexity. That complexity is important and relevant, but it doesn't justify the tortured conceptual logic of the ACLU's policy reasoning. From a purely textual and historical perspective I think it's pretty much beyond dispute that the 2nd Amendment was about preservation of states' powers to regulate (or not regulate) guns. Many state constitutions had clauses that specifically framed it as an individual right. So, yes, gun rights were often and widely seen as an individual right in some places. But the Federal constitution was almost exclusively focused on defining the limits of when and how federal legislative powers trumped state legislative powers. So while the federal government couldn't pass laws abridging political speech, states were free to do exactly that for 150 years. That's why the 1st Amendment isn't couched in terms of an individual right, but in terms of restricting federal powers--... shall make no law ... abridging the freedom of speech. That's because the real issue of the day was whether the federal government could pass laws that interfered with state laws protecting _or_ restricting behavior. It's only where the Federal government was expected to have a direct and necessary relationship with an individual person (eminent domain, search & seizure, trial) where things are framed as individual, inalienable rights. This was especially important in matters of gun rights. Because the federal government had ultimate authority to command state militias, states were afraid the federal government would limit their ability to defend themselves. The right of a state to defend itself basically boils down to the ability to prevent and suppress insurrections and rebellions, especially but not exclusively slave rebellions. Controlling that meant states needed the freedom to both protect the gun rights of some people, but also to limit the gun rights of other people, and to generally regulate guns however they saw fit. Different states might have wildly differing laws based on their circumstance. (You can sort of see how that fits the ACLU's logic of freedom from crime, but the perspective is still different--securing a state's regulatory power vs focusing on a very specific, individual "right". But after the Civil War, and in particular the passage of the 13th and 14th Amendments, there began a shift of using Federal constitutional laws to limit both federal and state powers, and thus a shift toward emphasizing particular individual rights. Remember, the inalienable rights Jefferson mentioned in the Declaration of Independence were vague--life, liberty, and happiness. The next sentence says that the way to secure those vague rights was by securing the ability of men to govern themselves. It's a defense of democracy. It doesn't proscribe rules for limiting government power; on the contrary it affirms the power and legitimacy of self government to contravene pre-existing laws and limitations in order to secure individual rights as they saw fit. And in the context of a federal government, the highest concern was preserving the power of those individual state governments to address liberty issues as they best saw fit. The Civil War finally proved how limiting that conception of government was in actuality, even though it was long theoretically understood. It proved that even well-governed democracies were prone to act in a tyrannical manner even despite their own laws. (The 14th Amendment secures the right to equal protection of the laws.) The nation wasn't yet prepared to tackle that dilemma until it became an existential issue 80 years later. But the point is, you can't read the Federal constitution in terms of individual rights. Little of the original text makes sense from that perspective. But neither can you understand and explain subsequent legal and political reasoning, and the evolution of that reasoning, without understanding the complete history.

chimeracoder 10y ago
First, I appreciate the time you took to write a thoughtful response. Second, I wouldn't really say I'm defending the ACLU here - namely because I disagree with their stance. I won't go into why I disagree, because it's not relevant, but the point of my comment was to point out that the original argument (which comes from an incredibly right-wing website - just take a look at the front page) overstates the case that the ACLU is anti-gun. But finally - the 'states rights' aspect of it is more complicated. The ACLU, I'll point out, doesn't use the term "states rights" (which I agree is a dog-whistle term). They refer to the right being held by the state, but unlike the specific term "states rights", that's not always a coded concept. And I think the thing that's missing in your argument is the basic fact of where the topic of gun control actually arose in US public discourse. You do allude to it here: > Initially that was a round-about way of referring to black, inner-city communities, but with the increasing attention given to gun massacres in predominantly white, suburban, areas, that "right to be free of violent crime" has become more inconclusive. Simply put: gun control was not a mainstream issue until black Americans[0] started arming themselves in large numbers and (importantly) in an organized manner. That was the tipping point that brought gun control into mainstream attention, and the early organized anti-gun groups had a very noticeable (albeit coded - not always explicit) anti-black agenda. [0] Not just the Black Panthers - even Martin Luther King Jr. was a very adamant gun owner.
- wahern 10y ago
  But from the perspective of gun owners a collective/state right isn't comparable to an individual right. Decades ago the ACLU was quite anti-gun. The only reason they got roped into the gun debate (something of a pointless distraction for them) is because of their work with minority communities, their work in helping them deal with the consequences of increasing violent crime during the 1970s and 1980s, and in particular their help in strategizing responses to state and federal laws that they thought were causative or contributive factors of that crime. The ACLU began to believe that equality couldn't be promoted merely by defending the existing panoply of liberties; that to defend civil liberties you had to arm communities with new legal tools to fight what were perceived as biased and oppressive behavior maintained in the guise of equality and liberty. (Just like the original function of the states' rights debate was to protect slavery by appeal to notions of liberty.) And part of that biased behavior was state governments ignoring the plight of some black communities wrt to gun regulation. (As you alluded to, the the prejudice is laid bare by the fact that many of same people and institutions that are today rabidly anti-gun regulation were previously very much pro-gun regulation at the height of and in direct response to the Black Panthers and black power movements, and in particular the movements for them to become armed.) From the the ACLU's perspective, smart gun regulations could help reduce crime without imposing any undue constraints on legitimate uses of guns. The ACLU and their supporters' notions of legitimate use are clearly in opposition to that of many gun rights proponents--at least the vocal ones who managed to define the debate. So early on the ACLU provided assistance to communities and legislators writing laws which restricted gun use. And they weren't doing it out of concern about the breadth of those laws. Rather they did so to try to make them as broad as legally and politically possible. It would be sort of like the ACLU not only defending the KKK in a free speech law suit, but helping them write their propaganda. The former defends a principle, the latter is difficult to defend by saying you're just helping them to stay within the bounds of the law. After the conservative movement gained steamed during the 1980s and 1990s, and after it thoroughly internalized the values and legal reasoning of the rabidly pro-gun rights movement, the ACLU began to see the writing on the wall. It also helped that there always existed conflict internally about their choice to take an official legal stance and to inject itself into the debate at the cost of considerable political capital on other issues. So the past 10 or so years has seen an unwinding of the ACLUs stance and remediation of the trouble it has caused them. That unwinding includes cooperation with the NRA on blocking some federal regulations. It was a very strategic assistance, though perhaps I'm being overly cynical. But from what little I've read internally it created some serious discord because a large contingent of support inside and outside the ACLU comes from the social justice movement, for which gun regulation is a huge issue. In the next few years don't be surprised if they just silently move away from the issue altogether. I doubt they'll ever affirm an individual right, but they don't have to affirm it. The whole issue was always a distraction from more pressing and important work. Gun violence is a real problem, but it's not something the ACLU is well-situated in any shape or form to help deal with. Better to stop antagonizing guns rights activists, especially when it feeds political divisiveness at at moment when they need all the cooperation they can find fighting for voting rights. And the focus on voting will rightly serve as a distraction for the powerful interests that kept the ACLU in the gun debate for so long. Plus, the debate is largely over. The law of the land is that gun rights are an individual right under the Federal constitution. End of story. I may disagree with their historical reasoning and some of their legal justification, but I accept that their decision provided finality to both the legal and and political debate. There are alot of unanswered questions, but I don't think they'll be at all consequential. And for the record, I'm not anti-gun. I'm not afraid of guns. I've shot plenty of guns, including machine guns. I'm comfortable around guns. I'd like to see more open carry and less concealed carry. IMO too many politically left-leaning people have an irrational fear of guns. And while I don't deny that gun regulation could and arguably has limited crime in some countries, I don't think it would be particularly effective nor viable in the U.S. Our gun culture is too strong to make it politically viable, and our society is too violent (criminals and police) for it to really have any effect on street level violence. More regulation won't make the violence go away. What will almost certainly make it go away is less regulation of drugs. I'm not pro-drug, either, but I'll take stepping over more passed out heroin users on the streets than having to worry about dodging bullets. I'd prefer neither, but you can't have everything.