Dishonesty and Deception: The ACLU and the Second Amendment

The American Civil Liberties Union is, by far, the leading civil rights organization in this country. For decades, it has championed the cause of the American citizen against the ever-encroaching power of the government.

Over the years, the ACLU has worked to defend American's rights under the First, Fourth and Fifth Amendments. Indeed, the ACLU has successfully worked to free convicted murderers due to minor technical irregularities during their arrests, and it championed the cause of avowed racists and anti-Semites to march in public.

Surprisingly, the ACLU has entirely failed to concern itself with arguably one of the most important rights guaranteed in the Bill of Rights; namely, the individual's right to keep and bear arms, recognized in the Second Amendment. What can explain this anomaly?

The ACLU explains this contradiction simply by relying upon U.S. v. Miller, an ambiguous case issued by the Supreme Court in 1939.

The ACLU states its position on the Second Amendment is "well known and not subject to change." The ACLU believes the right to bear arms is little more than an anachronism intended to protect the right of the states to maintain militias and thereby insure the states' "freedom" and security against the central government.

On a superficial level, this argument seems to make sense. After all, the Amendment clearly refers to the necessity of a "well regulated Militia." But after further consideration, which is obviously necessary any time American citizen's rights are on the block, it quickly becomes clear the ACLU's position is fraught with inaccuracies and illogical conclusions.

To see the fallacy of the ACLU's position, four issues must be addressed. First, what does the language of the Second Amendment mean? Second, can a state even have a "right," or is a right something which resides only in individuals. Third, what are the implications of the first clause which refers to the "necessity" of a well regulated militia? Finally, what authority does Congress or the Supreme Court have to repeal or annul any of the rights set forth in the Bill of Rights, including the Second Amendment?

To determine what the language of the Second Amendment means, we must examine three sub-issues: (1) What does the Amendment mean on its face, (2) What do the contemporary writings of the Framers indicate the Amendment was intended to mean, and (3) how has the Supreme Court interpreted the Amendment?

Of course, the best place to begin to determine what the Second Amendment means is with the language of the Amendment itself:

"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."

Note the Amendment does not say states may keep and bear arms. Rather, it says the "people" may do so. Significantly, and as recognized by the Supreme Court in US v. Verdugo-Urquidez (1990) 494 U.S. 259, the term "people" used in the Bill of Rights means to that "class of persons who are part of the national community...."

If the Supreme Court's definition of the word "people" is substituted into the Amendment, its meaning become perhaps clearer:

"A well regulated Militia, being necessary to the security of a free State, the right of that class of persons who are part of the national community to keep and bear Arms, shall not be infringed."

Better yet, since the "class of persons who are part of the national community" simply means American citizens, the meaning of the Second Amendment can be further clarified as follows:

"A well regulated Militia, being necessary to the security of a free State, the right of American citizens to keep and bear Arms, shall not be infringed."

This simple exercise makes it abundantly clear that, regardless what the reference to the Militia means, American citizens -- and not the states -- have the right to keep and bear arms which may not be infringed.

Indeed, it is not clear what part of phrase: "the right of the people to keep and bear Arms shall not be infringed" the ACLU does not understand. It certainly requires some questionable mental gymnastics and dubious logic for the ACLU to conclude the right of the people to keep and bear arms may be infringed by the government.

It is also curious that, despite the simple language in the Second Amendment which plainly means all Americans have an inalienable right to keep and bear arms, the ACLU refuses to acknowledge it guarantees such an individual right, while it has no trouble finding a "fundamental," yet unwritten, right of privacy, including a right to abortion, floating around somewhere in the nebulous "penumbra" of the Constitution. (Of course, the Lawyer's Second Amendment Society does not take a position on the issue of abortion or the right of privacy.)

b. What Do Contemporary Writings of the Framers Tell Us About the Meaning of the Second Amendment?

Since the inescapable meaning of the language used in the Second Amendment is that individuals have a right to own firearms, the ACLU has little choice but to fall back on the argument the Amendment was intended only to provide for a militia. If so, it has been said this is the biggest secret in history because there is not a single shred of evidence from the Constitutional Convention which supports this proposition. Gun control proponents have yet to identify even a single quote from one of the founders to support their claim.

By contrast, there is a plethora of evidence and quotations from the Framers which make it absolutely clear they intended the Second Amendment to recognize an individual right. The ACLU's "collective" rights theory is a creation of the 20th Century; it was unheard of in the 1700s.

Indeed, the Framers were themselves armed with state-of-the-art military weapons. And we know what happened to the British when they were foolish enough to suggest American colonialists did not have the right to keep and bear arms. The British marched through Lexington on their way to Concord to seize the Americans' weapons and powder, and touched off the Revolution.

Further, virtually all legitimate academic research regarding the Second Amendment indicates it was intended to recognize and individual right. Of the 42 law review articles which addressed the Second Amendment since 1980, all but five concluded it guaranteed an individual right. Of the five, three were written by "researchers" hired by anti-gun groups, and one was written by a politician!

Even the American Bar Association had to acknowledge in its 1965 article, "The Lost Amendment," that the Amendment guaranteed an individual right. (Of course, bowing to pressure from the political left, the ABA now asserts the Amendment guarantees only a state's right.)

In the often-cited cases of Cruikshank v. U.S. and Presser v. Illinois, 1875 and 1885, respectively, the Supreme Court stated the Second Amendment did not create a right. Rather, the Court expressly recognized a pre-existing right to keep and bear arms.

Under the Court's interpretation, Americans' right to keep and bear arms did not come from the Second Amendment. This is where the ACLU's analysis stops. However, the ACLU always ignores the Court's statement that the Amendment simply recognizes a pre-existing right.

This distinction is the crux of the individual rights position. The ACLU disingenuously asserts the Amendment did not create a right. True enough. But, as stated by the Court, that right exists, and it existed before the Bill of Rights was ratified. All that document did was state the right would not be infringed by the government.

It is also significant that in both cases, the Court noted the Amendment precluded Congress from enacting any gun control laws. This point is also important, but it is overlooked by the ACLU. It is important because the Court recognized the Second Amendment precludes any regulation of firearms by Congress.

While the Court held the Second Amendment precluded only Congress from regulating firearms, it also held the states were not restricted under the amendment. This would appear to give the states the green light to enact gun control. It also seems to support the ACLU's position.

But both Cruikshank and Presser were decided at a time when none of the rights set forth in the Bill of Rights were thought to apply to the states. Thus, while it is true the Court declined to apply the Second Amendment to the states, none of the other amendments did, either. Thus, when those cases were decided, states could have restricted any of the rights codified in the Bill of Rights, such as the right to free speech.

In fact, it was not until some 50 years later that the Court created the "Doctrine of Selective Incorporation." Essentially, over several decades, the Supreme Court used the 14th Amendment, which guaranteed to all Americans the certain basic rights, to apply the almost the entire federal Bill of Rights to state governments.

The point is, the Supreme Court historically read the Second Amendment as a restriction on Congress. After the advent of the Selective Incorporation Doctrine, it seems likely the Supreme Court will have to "incorporate," or apply, the Second Amendment to the states if it is ever presented with the appropriate case.

The ACLU relies primarily upon U.S. v. Miller (1939) 307 U.S. 174, to support its "collective" right theory. Unfortunately, the Miller case is a prime example of the old legal adage, "bad facts make bad laws." In Miller, the Court held the 1934 National Firearms Act's ban on short barreled shotguns was Constitutional because no evidence before the Court indicated such weapons had a military purpose. There was no evidence to the contrary before the Court because Mr. Miller had apparently died prior to the hearing. Thus, only the federal government offered evidence at the hearing.

It certainly appears likely the ruling would have been different had there been two sides presenting evidence.

It is true the Court made some statements which appear to support the "collective" right theory. However, these statements were "dicta," which means they were asides, or "off-the-record" comments which had no bearing on the outcome of the case.

More importantly, the Court discussed the militia aspect of the Amendment in the context of the deciding what weapons are protected. The Court concluded the Amendment protects military type weapons.

The question for the ACLU, then is: In view of Presser, Cruikshank and Miller, what is Congress's authority to ban so-called assault rifles? The answer: there is none.

Under Article I of U.S. Constitution and 10th Amendment, "powers" are reserved to the States. By contrast, American citizens have "rights."

A right is a fundamental quality of life which resides in each individual, such as life, liberty and pursuit of happiness. Indeed, it was due to the British Crown's denial of the American's inalienable rights which gave rise to the Declaration of Independence.

Certainly, states cannot enjoy the rights of life, liberty and pursuit of happiness. A state is not a living being. It cannot exercise liberty (just as its liberty cannot be taken away by incarceration), and a state cannot pursue happiness. Only individuals can exercise these "rights."

In short, a "collective" right is not a right at all. It is simply a "power." Since the Second Amendment guarantees a "right" of the people, by definition it is a right which may be exercised only by individual citizens, and not by states.

For this reason, the ACLU's claim that the Second Amendment guarantees a "collective" right, intended to assure the states' "freedom," is an absurdity.

It is also worthwhile to note the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Amendments also expressly guarantee rights which can only be exercised by individual citizens. It is non-sensical to conclude the Second Amendment alone in the Bill of Rights does not pertain to individuals.

The ACLU suggests the Second Amendment guarantees only a state's right to maintain a militia due to the first clause of the Amendment. This is also a misinterpretation of the history and meaning of the Amendment.

During the Revolutionary era, every city and township maintained its own militia, and there were even private militias. In Lexington, it was the town militia which squared off against the British regulars.

Historically, and under current law, militias consisted of "citizen-soldiers," which meant all able bodied males between 18 and 45 years old, who were expected to muster, bearing their own arms, during times of threat. Today, all able-bodied citizens of either sex would probably be so expected to appear.

However, since a militia consisted of all the armed citizens, it could exist only if all the citizens were armed. For this reason, the ACLU's assertion that the reference to a "well regulated militia" confers a right upon the states is, again, ludicrous.

In addition, as demonstrated by Dan Schultz in the prior edition of The Firearms Sentinel and The Liberty Pole, the term "well regulated" meant "well disciplined," and not regulated by the state. Indeed, soldiers of the day were referred to as "regulars." It is a little known fact that on his famous ride in 1775, Paul Revere did not yell, "The British are coming!" as commonly believed. Rather, he yelled: "The Regulars are coming!"

The ACLU's claim that the National Guard is the modern day equivalent of the militia is equally absurd. Were the National Guard and militias synonymous, then every state with a National Guard unit would be in violation of Art. I, Section 10, Clause 3 of the U.S. Constitution, which forbids the states from raising armies in peace time.

The Framers were all men of great intellect. If they intended the Amendment to guarantee states' power to maintain militias, they would have said so. They would not have acknowledged the "people's" right to be armed if they did not intend for that. Under the ACLU's reading, the entire second portion of the Amendment, the part which actually states the right, is meaningless and to no effect.

The ACLU frequently asserts we should ignore the Amendment's plain meaning because no court has expressly said the Amendment guarantees an individual right.

This statement is basically true. But it also poses a fundamental problem: Where do our rights come from and can they be eliminated? For if rights can be eliminated, then they are not inalienable.

In fact, the Supreme Court makes "mistakes" all the time. In Plessy v. Ferguson (1897), the Court held the "separate but equal" doctrine was consistent with the 14th Amendment. Fifty years later, in 1954, the Court held in Brown v. Board of Education that the "separate but equal" doctrine was invalid under the 14th Amendment.

The Supreme Court has even recognized that some citizens could have a property right in other human beings, because slavery was accepted for nearly 100 years in this country.

Here is another example, one with which the ACLU would undoubtedly agree: If the Congress passed, and the Court upheld, a law that prohibited anti-government speech because it made governing too difficult, would the First Amendment still exist? Of course it would: neither Congress nor the Court could repeal the protection offered by the First Amendment. The same goes for the Second Amendment.

The point is, our rights exist independent of the very government against which the Bill of Rights is asserted. That's why they are called rights.

The Supreme Court may properly try to determine if a restriction on a right is reasonable, since no right is absolute. But the Court has no legislative powers, and thus no authority to repeal a right. Indeed, it is doubtful a "right" could be repealed at all, even by a majority vote of the population.

Were this not so, the 13th Amendment could be repealed by popular vote, and slavery re-instituted, which would clearly deprive the victims of the inalienable rights.

The ACLU attempts to confuse the issue with the question: What type of "Arms" are protected by the Second Amendment? Tanks? Bazookas? Machine Guns?

The answer is simple. Like any right set forth in the Bill of Rights, the word "Arms" is subject to reasonable limitations so long as the purpose of the Amendment can still be achieved. As Alexander Hamilton stated in Federalist Paper No. 29, the Amendment's purpose historically was to allow American citizens to protect their lives, liberty and pursuit of happiness against foreign or domestic threats, including a large standing army.

Thus, Americans may keep and bear whatever arms are reasonably necessary to protect them from any threat to their life, liberty or pursuit of happiness.

In short, if the ACLU is willing to acknowledge the Second Amendment guarantees a right to every individual American, we can then determine which "reasonable limitations" apply yet still let us achieve the purpose of he Second Amendment.

In view of the fact the ACLU's position on the Second Amendment is clearly erroneous, why do they still endorse that position? This writer certainly does not know the answer. However, it seems obvious the ACLU's policy is being driven by political motivations and not by reasoned legal thought. Of course, it should be the other way around.

always a pleasure to acquire more ammo to defend the most valuable of rights.

ironically alexander hamilton is being toughted by the handgun violence provention center as the first victim of handgun violence and is sponsoring an essay contest to the real meaning of the second amendment. i wonder what a living hamilton would have said about their efforts.

Here's the link for that essay. It's actually those nice folks at Violence Policy Center. Maybe some FReepers with kids (or if any FReepers that are students themselves) can shoot over an essay to these painfully ignorant folks. 2A Essays

(and if anyone does, how about posting your essay here?)

According to the Supreme Court in Verdugo-Urquidez, "the people" does not denote the National Guard, or States.
(b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" [494 U.S. 259, 260] refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Pp. 264-266.
Text from U.S. v. Verdugo-Urquidez, Sup. Ct. case No. 88-1353 (1990).

Perpich v. Dept. of Defense established that the National Guard is not a Militia. It is ultimately under federal control.
Article one's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency.
U.S. Supreme Court, Perpich v. Dept. of Defense, 496 U.S. 334 (1990) on establishing the National Guard under federal contorl.

'Every citizen . . . [shall] provide himself with a good musket, or firelock, a sufficient bayonet and belt, two spare flints.
The Militia Act of 1792, which was passed one year after the 2nd Amendment and declared that all free male citizens between the ages of 18 and 44 were members of the militia.

Courtesy of gunfacts.org

Why "arguably"? The Second may just, in fact, be the most important amendment in the bill of rights. It has frequently been said that the Second Amendment is the reset button for the Constitution.

But then the RKBA crowd does not stress the First as much as the Second, either

Thats understandable if the previous statement is correct.

thanks billsux for the address to the vps. they make me sick. here is a copy of my email contact with them.

you people have no idea the harm you do to a free society. the second amendment guarantees an individual right to protect oneself from government, any government, be it state or federal. the "free state" mentioned in the amendment refers to the big "S" state meaning the status of being free. your anti-gun lobbying will cause more harm than the guns you claim do. am i armed? am i free? the answer to each question is the same.

thanks billsux for the address to the vps. they make me sick. here is a copy of my email contact with them.

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