The ACLU and firearms

[Trlsmn]

Oh yeah, I was able to reprint Thornton's article. It's in the Spring 2009 issue which you can find at Powells or I'd send you a copy if you like.

Oh great I was planning a trip to Powells tomorrow anyway! I'm all out of the Scifi! I will look for it!

 

[Gunner3456]

PM sent. If I can get a copy of that electronic version emailed to me, I can put it up on a server and post a link.

 

[AGCR]

State Level ACLU and the 2nd Amendment


By C.S. Thornton, Oklahoma ACLU Legal Director

A year or so ago, a lobbyist from our Washington Legislative Office was here as a guest speaker at our Legislative Workshop. During her visit, she told me a joke that was funny, but at the same time disturbing. The joke goes something like this: “Question: How does an ACLU’er count to 10? Answer: 1, 3, 4, 5, 6, 7, 8, 9, 10.” Of coursethis is a clever
reference to the ACLU’s refusal to recognize the Second Amendment as one conferring an individual right. The ACLU has held fast to a “collectivist” view of the Second Amendment.
This view claims that the Second Amendment simply guarantees a right to the State that it would have the power to raise a militia, if needed.
The Second Amendment reads: “A well regulated militia being necessary to the security of a free state, the right to keep and bear arms
shall not be infringed.” There has been a long debate between those who believe that the Second Amendment guarantees the right of the citizenry to keep and bear arms for self- defense, hunting, and other lawful purposes and those who believe that there is no such individual right guaranteed by the U.S. Constitution.
Since the day I turned 21, I’ve had a firearm. I bought a small semiautomatic pistol and followed it up with a National Rifle Association Gun Safety Course a few days later. Years after that, I applied for and received a concealed carry license. In fact, I’m an NRA Benefactor Member, the highest level of membership within the NRA. It is my belief that the Second Amendment guarantees an individual the right to possess a firearm for self-defense, hunting, or recreational activities (skeet shooting, for example). I’m somewhat stunned that the ACLU has not espoused a similar view. It’s not that I think we should spend our time taking cases that the NRA is more than happy to litigate. There are, however, other considerations that deserve our attention.
One of the great problems is that the gun-rights crowd has traditionally been affiliated with the right wing of the American political spectrum. That is unfortunate. In fact, many of the ACLU’s core constituent groups are the people most in need of firearms training. How many times have we read about our gay, lesbian, bisexual, and transgender brothers and
sisters who have been the victims of senseless attacks by homophobes wielding a baseball bat or some other equally harmful instrumentality?

It has long been my belief that the LGBT community should seek out firearms training early and often. In fact, my suggested motto for LGBT firearm owners would be: “Never bring a baseball bat to a gunfight.” I’m not kidding. The recent Supreme Court decision that finally recognized an individual’s right to keep and bear arms should be embraced by people
from all walks of life. Of course, I understand there are those who for religious or philosophical reasons do not wish to purchase, let alone keep a gun in their home or carry a firearm on their person. The decision to own, or not own a firearm is a deeply personal one.

Also, I am not a supporter of the death penalty under any circumstances. Because of this, some people may find it odd (or hypocritical) that I would support Oklahoma’s “Make My Day Law.” Opposition to the death penalty and use of lethal force in furtherance of self- preservation are not mutually exclusive. People facing lethal threats of violence cannot always
rely upon the local constabulary to respond to an emergency call in time. In fact, there are some segments of our population who simply cannot fathom a timely response to an emergency by the authorities.

While I think contacting the police is the preferred course of action (time allowing), we cannot expect a guaranteed response time. In the course of a home invasion or other violent act, seconds can make all the difference. If the police fail to respond in time, they cannot be held liable for a failure to protect. When someone breaks into your home, the social contract has been broken (assuming, of course, that the police have not had adequate time to
respond or the homeowner did not have time to make a call to the police). When that contract is broken, we return to a “state of nature.” In a state of nature, all of the social conventions we take for granted (protection of the weak, for example) vanish into thin air. Compare this with a death penalty prosecution – there is no emergency, the culprit has been taken into custody, and he or she poses no immediate threat to the public. The State then methodically (with no imminent threat to anyone) murders a human being. It’s all about the context.

The ACLU of Oklahoma’s Board of Directors is scheduled to consider a pro-Second Amendment policy for our affiliate in January. Nevada’s ACLU recently adopted such a policy. It reads: "The Nevada ACLU respects the individual's right to bear arms subject to constitutionally permissible regulations. The ACLU of Nevada will defend this right as it
defends other constitutional rights. This policy was formulated by our affiliate Board in light of both the U.S. Constitution and the clearly-stated individual right to bear arms as set out in the Nevada Constitution's Declaration of Rights." ACLU National, I’ve been told, is in the
process of putting together a committee to further discuss this matter. Many would be surprised at the great divergence of opinion that circulated on the ACLU Legal Listserve (the list serve that serves as a point of contact for all of the ACLU’s lawyers at both the national level and the affiliate level). There was an amazing amount of support for the proposition that
the Second Amendment conveys an individual right. I support and urge the adoption of Nevada ACLU’s policy concerning the Second Amendment by the ACLU of Oklahoma.

As I mentioned in passing before, the adoption of a pro-individual rights view of the Second Amendment will not mean much for ACLU National or the affiliates. We’re rarely going to be asked to take cases that will further define the right to keep and bear arms. Organizations such as the NRA will be more than capable of handling that sort of litigation. I would suggest to our membership that our role is making sure that the right to keep and bear
arms, as it develops, is a right that applies equally to all people – black or white, rich or poor. I believe that felons, once they have served their time for their crimes and have been released from all state supervision, should
eventually have the right to possess a firearm restored
(the NRA may balk at this suggestion). I’m simply suggesting that this “new” right be enjoyed and exercised by all, not just a select few. Perhaps one of the greatest rights we possess is the right to self-preservation.

Although there is no provision within the Constitution that specifically discusses a right to self-preservation, few would argue that the right of self-preservation and self-defense are important hallmarks of our republic. The Second Amendment is an important adjunct to that right. When you look at the text of the Second, Third, Fourth, and Fifth Amendments to
our Constitution, a familiar theme runs through those provisions.

I like to look at those amendments as Justice Douglas once looked at the First, Third, Fourth, Fifth, and Ninth Amendments in the Griswold case. There is a penumbra produced when they are viewed in aggregate. The best way to characterize that penumbra is: “A person’s home is their castle.” It’s yet another facet of the right of privacy we have long recognized. When the dust settles after Heller and its progeny, we will find a right that reaches
its zenith in our homes and enjoys somewhat less protection in other situations. In the meantime, we, as ACLU members should be happy that the Supreme Court has, for the first time in a long while, added a right to the roster as opposed to erasing yet another.

The original version of this article appeared in the Oklahoma ACLU’s Winter 2008 newsletter Liberty as “Now is the time for state affiliate to take a stance on the Second Amendment.” AGCR thanks the ACLU for kindly
allowing a reprinting.

 

[PMKN_PI]

Well, this is at least promising, that there are ACLU affiliates that are coming around. I can bet you that their membership would go up if this is the case.

 

[chris61182]

I always welcome another ally in the fight. Granted I'm not sure how much to trust them given they still managed to forget some very important words.

"the right to keep and bear arms"

should probably have been...

"the right of the people to keep and bear arms".