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January 19, 1995
Mr. Ira Glasser
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.
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.
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.
Cars are not a right covered by the first ten amendments, so comparing them with firearms is without merit.
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.
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:
All of this indicates that the Brady Bill was not designed to ensure legitimate firearm sales, but to harass firearm purchasers. It should have been opposed by the ACLU, first and foremost because it was not set up to do what it purported to do, and second, because it is much more than minimally intrusive of the right to purchase and own a gun.
If the examples I gave are not sufficient, consider the results of other waiting periods, such as the one in California. When the riots broke out a couple of years ago in Los Angeles, and peoples' homes and businesses were threatened by marauding gangs and arsonists, the police and even the national guard stated that they had no hope of protecting people and property. Many wanted to protect themselves, but when they tried to purchase firearms, they were told that they had to wait two weeks, under state law, to pick up their guns. It was demonstrated in many instances that those who relied on the national guard or the police lost everything, while those who stood ready with previously-purchased firearms were able to dissuade the gangs from looting and arson. This goes to show that any prescribed delay that prevents a legitimate purchaser from purchasing a firearm to protect himself at the time that protection is necessary is unreasonable.
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.
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?
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.
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.
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?
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.
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.
"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?
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.
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 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.
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?
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.
This is silly. It is just more looking for excuses to treat the Second Amendment differently from the First.
See the above discussion of Miller.
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.
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.
1991??? A lot has happened since then. This gives new meaning to the word "neglect".
"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.
To date, the ACLU has not replied.
Last Updated — April 06, 2013