Why Does the ACLU only Pick and Choose Rights To Protect?

[Wildest Bill]

On my other thread Demise had a great point that I never even thought of before. How come the ACLU if they really care about peoples rights, get involved in Second Amendment cases?

Instead of just picking on the more liberal type rights infraction like prayer in school or at a football game?

[jmullaney]

Why do they choose the right to choose over the right to life? Who knows? They've certaintly wavered from the ideas of their founder's intent I understand.

[andros]

The ACLU's position on the 2nd Amendment can be found here: http://www.aclu.org/library/aaguns.html

In brief, "The ACLU . . . 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."

IOW, they do not believe that the 2nd Amendment freedoms are in as much need of defending as my right to sit through a football game without listening to advertisements for your religion.

[Opus1]

"The ACLU . . . 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."

LMAO! While this may not be an unreasonable interpretation to take, it pretty much conflicts with their interpretation of the rest of the constitution. I guess some amendments must be interpreted broadly, some narrowly, and some in-between. Whatever it takes to conform to what the ACLU has already concluded that our constitution says.

[Wildest Bill]

In brief, "The ACLU . . . 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."

What kind of bs is that? Does that mean that they are not going to get involved because they are interested in helping liberal intrepretions of the constitution? That organization has ZERO credibility with stupid statements like this.

IOW, they do not believe that the 2nd Amendment freedoms are in as much need of defending as my right to sit through a football game without listening to advertisements for your religion. [/b]

Why? If they(govt) takes our guns they can make you sit through any advertisements they want.

[Danimal]

Actually, I'm not aware of any case where the ACLU has filed amicus briefs or set up test cases to defend the 8th or 10th amendments either. It appears to have a fairly sanguine view of taking private property for public use and increased federal authority.

[Danimal]

Originally posted by Danimal
Actually, I'm not aware of any case where the ACLU has filed amicus briefs or set up test cases to defend the 8th or 10th amendments either. It appears to have a fairly sanguine view of taking private property for public use and increased federal authority.

Oops. I meant the takings clause of the 5th amendment, not the 8th.

[Ptahlis]

Originally posted by Wildest Bill

What kind of bs is that? Does that mean that they are not going to get involved because they are interested in helping liberal intrepretions of the constitution? That organization has ZERO credibility with stupid statements like this.

What exactly makes their statement stupid? Yeah, I know that there are plenty of people who would very much like to ignore the "well regulated" bit in the 2nd Ammendment, but it is there after all. "Well regulated" pretty much rules out "unlimited right." Or are you asserting that the ACLU should fight for rights that it doesn't particularly believe in and advance Constitutional arguments it feels are without merit? That's just bizarre logic.

While I am not a gun-control fanatic, and I do believe that individuals have the right to bear arms, I still cannot figure how certain gun nuts seem to believe that no possible regulation of firearms is permitted by the Constitution.

[SuaSponte]

Originally posted by Opus1
Whatever it takes to conform to what the ACLU has already concluded that our constitution says.

I do agree that the ACLU would be in a better position if they took on some cases where they thought a particular gun control regulation was unreasonable, but I don't see the problem with this sentiment. Of course the ACLU has concluded the Constitution says certain things. That's the whole point of the ACLU - that the Constitution allows certain civil liberties, and they will go to court to enforce them. Obviously, the ACLU's interpretation of the Constitution differs from those of others - otherwise there wouldn't be any court cases for the ACLU to take on. It doesn't make the ACLU hypocritical that it interprets the Constitution in a particular way - it's their very reason for being.
Furthermore, I think the ACLU has inured itself from claims of hypocrisy by its representation of the Klan and the Nazis in various First Amendment cases.

Sua

[Whack-a-Mole]

Well said Pthalis...

While you may disagree with the ACLU's take on the Second Amendment I'd bet dollars to dimes that they'd file at least a friend of the court brief to try and bring down any law that outright banned (to take an extreme example) guns.

Also, while you may say the ACLU doesn't seem to do much about the Second Amendment remember that they don't have to. Gun owners have a staunch and strong advocate in the form of the NRA. Why would an organization with limited resources try and fight for the Second Amendment when the much deeper pocketed and more committed NRA will do the fighting anyway?

The Second Amendment is one well looked after amendment already...no need for the ACLU to step in.

[Kimstu]

Opus: Whatever it takes to conform to what the ACLU has already concluded that our constitution says.

Um, no, actually. Whatever it takes to conform to what the ACLU has concluded that the Supreme Court says that our constitution says. The ACLU is an advocacy group, not for instituting freedoms that some people think Americans ought to possess, but for the defense of the freedoms that it has been widely accepted, especially by the courts, that Americans do currently possess.

As explained very clearly in the site that andros linked to,

The 1939 case U.S. v. Miller 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.

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, Illinois, 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.

In other words, the Supreme Court's position on the Second Amendment has been quite stable for a while now. It holds that Americans do not have a constitutional right to unregulated gun ownership, and generally doesn't hear cases on the subject. Therefore, since unregulated or minimally regulated private gun ownership is not currently held to be one of our civil liberties, why would an organization devoted to defending civil liberties bother advocating it?

The ACLU is not about arguing with the judiciary about what rights citizens ought to have, but about standing up to legislatures and private entities to protect the rights that the judiciary already thinks the citizens do have. The point is not to change current judicial opinion, but to help citizens get access to courts whose judicial opinions can be pretty confidently expected to protect citizens from unconstitutional laws and policies. If the courts already agree with those laws and policies, what's the point?

In short: you may personally feel that some particular legal restriction on gun ownership is unfair. (And there are probably a surprising number of ACLU members who would agree with you.) But unless you have reason to believe that this restriction would be widely held by U.S. courts to be unconstitutional, don't look for the ACLU to be able to help you. See the difference?

[MEBuckner]

Originally posted by Danimal
Actually, I'm not aware of any case where the ACLU has filed amicus briefs or set up test cases to defend the [the takings clause of the 5th amendment].... It appears to have a fairly sanguine view of taking private property for public use....

This may not be quite the same thing as what you are thinking of:

The ACLU believes that all civil forfeiture schemes inherently violate fundamental constitutional rights, including the right not to be deprived of property without due process of law.... -- Statement of Nadine Strossen on Asset Forfeiture

PROVIDENCE, RI -- The American Civil Liberties Union of Rhode Island is entering court today on behalf of a woman wrongfully accused of drug dealing who has spent more than three years seeking the return of $860 confiscated from her by a narcotics "Strike Force." -- ACLU Says Rhode Island Woman is Victim of "State-Sanctioned Piracy" by Drug Task Force

Try a search on "forfeiture" here for more information.

I couldn't find anything on the ACLU taking any simple eminent domain cases; I believe eminent domain is a pretty well-established government power, but it would be kind of interesting to see the ACLU take up one of those cases where eminent domain is being used to build a sports stadium or a casino or a shopping mall. According to this newspaper article "Witold Walczak, executive director of the ACLU in Pittsburgh, said the legal defense organization rarely gets involved in land use cases unless there's an extraordinary issue involved" (and cites cases involving church-state separation as examples of "extraordinary issues").

[Danimal]

Originally posted by MEBuckner

This may not be quite the same thing as what you are thinking of:

You're right, that wasn't exactly what I was thinking of. But at least ACLU is doing something to protect that right, even if Nadine Strossen only mentions due process and cruel and unusual punishment rather than private property and the 5th amendment. Until now, I didn't know that ACLU had taken the slightest interest in asset forfeiture cases.

Of course, the 5th amendment doesn't prohibit eminent domain. It only requires just compensation when private property is taken for public use. What I am not aware of is any case where ACLU has questioned the "justice" of the compensation, or the breadth of the term "taken."

[Opus1]

Kimstu:

Whatever it takes to conform to what the ACLU has concluded that the Supreme Court says that our constitution says. The ACLU is an advocacy group, not for instituting freedoms that some people think Americans ought to possess, but for the defense of the freedoms that it has been widely accepted, especially by the courts, that Americans do currently possess.

I'm not certain, but I seem to recall certain instances in which the ACLU has fought a case up to the Supreme Court, had their claim rejected, and then complained to the media that the High Court made the wrong decision. I never recall the ACLU having a claim rejected by the Supremes and then saying "Ladies and Gentlemen, we thought that the position we were arguing was constitutionally supported. Apparently, we were wrong. We will never attempt to argue this position again."

In fact, now that I think about it more, pretty much any case which goes to the Supreme Court is original, by definition. It is a matter of law that has not been previously ruled upon, or else it wouldn't make it that far. Thus, whenever the ACLU argues a case to the High Court, they are essentially taking sides on a position whose constitutionality has not been firmly established yet. This sounds like they're picking and choosing their constitutional interpretation before the Supreme Court has decided, not after.

Personally, I have nothing against this. There are lots of organizations out there dedicated to defending certain constitutional interpretations. But the ACLU tends to put on airs as though they are the only ones on the right side of the law, and everyone else is out there to screw the constitution and take away your freedoms. If they'd just admit that they're defending an opinion about the constitution, rather than the constitution itself, I'd be a bit less peeved at them.

[Kimstu]

Opus: I'm not certain, but I seem to recall certain instances in which the ACLU has fought a case up to the Supreme Court, had their claim rejected, and then complained to the media that the High Court made the wrong decision.

Well, I poked around on the ACLU Supreme Court Participation website, and AFAICT while they certainly don't always agree with the Court's decisions, the cases they lose are usually controversial split decisions or circumstances-specific narrowed interpretations of a civil liberties principle that's usually construed more broadly. I did not find a case where the ACLU was butting its head against broad judicial policy that was pretty clear and consistent over the course of decades, as it would have to do if it attacked typical gun-control regulation. (Though I agree with Jeff that if a state passed an evidently unconstitutional gun-control law---say, one banning all private ownership of firearms of any kind---the ACLU would probably be quite willing to attempt to overturn it. But I also agree with Jeff that the NRA would be so all over such a case that nobody would even bother to call in the ACLU (which, btw, doesn't step in on civil liberties suits unless a plaintiff requests it).)

But the ACLU tends to put on airs as though they are the only ones on the right side of the law, and everyone else is out there to screw the constitution and take away your freedoms. If they'd just admit that they're defending an opinion about the constitution, rather than the constitution itself, I'd be a bit less peeved at them.

Well, it's certainly true that any position on civil liberties is at bottom just an expression of an opinion, and any claim to absolute moral certainty is just posturing. So I'll make a deal with you, Opus: you get the NRA to admit that they're advocating the anti-regulation convictions of a pro-gun minority rather than protecting an inalienable human right, and I'll get the ACLU to admit that they're defending an opinion about the constitution rather than the constitution itself. Deal?

[Danimal]

Originally posted by Kimstu
But unless you have reason to believe that this restriction would be widely held by U.S. courts to be unconstitutional, don't look for the ACLU to be able to help you. See the difference?

I don't think this is quite right. In the case of the death penalty, there is no widespread holding (certainly not by the U.S. Supreme Court) that it is unconstitutional. While I know that some U.S. states do not have the death penalty, I believe that's by legislatural choice rather than because the state supreme courts have found the death penalty to be unconstitutional. In the many states that do have death penalty statutes, the penalty's constitutionality is routinely upheld by the courts.

But I believe the ACLU does consider the death penalty unconstitutional, in spite of the majority of contrary judicial opinion against it, and that the ACLU argues the 8th amendment every time it files an amicus brief in such a case (which is often). Also the 14th amendment, because I believe the ACLU considers the death penalty inherently racist and thereby an infringement on equal protection.

Thus, when the ACLU does not pursue 2nd Amendment cases, I don't think it's because the case law is against it; that never stopped them with the death penalty.

[Kimstu]

Danimal: But I believe the ACLU does consider the death penalty unconstitutional, in spite of the majority of contrary judicial opinion against it, and that the ACLU argues the 8th amendment every time it files an amicus brief in such a case (which is often).

Yup, you're right; thank you for the correction. The ACLU's position paper on the subject is here.

[Boris B]

I think the ACLU is aware of Article I, Section 8, Clause 16, and is taking this into account in their intepretation of the Second Amendment.

[Opus1]

Well, it's certainly true that any position on civil liberties is at bottom just an expression of an opinion, and any claim to absolute moral certainty is just posturing. So I'll make a deal with you, Opus: you get the NRA to admit that they're advocating the anti-regulation convictions of a pro-gun minority rather than protecting an inalienable human right, and I'll get the ACLU to admit that they're defending an opinion about the constitution rather than the constitution itself. Deal?

I find the NRA just as obnoxious as the ACLU. They just seem to be involved in fewer court cases.

Danimal: thanks for pointing out the death-penalty stance. I knew there were certain things that the ACLU disagreed with everyone on, and yet sill considered themselves to be on the side of the constitution.

[Monster104]

Yeah, I know that there are plenty of people who would very much like to ignore the "well regulated" bit in the 2nd Ammendment, but it is there after all. "Well regulated" pretty much rules out "unlimited right."

Now, this is from an obscure document that people often refer to but don't seem to have read...

"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"

Yes, that's right. It's the second amendment, taken straight from the Constitution. Now, where does it say, weapons are to be well regulated? I see the part of having a well regulated militia to keep the country free, and another part about the people having the right to keep and bear arms. There's also a little part that says "shall not be infringed". Gee, what does that mean?

[Una Persson]

Is not one of the criticisms of the ACLU that they interpret the term "the people" in the Constitution to mean "the individual person" in every single case except in that of the 2nd Amendment? Thus picking and choosing how they want to interpret such an important definition?

[SPOOFE]

Yeah, I know that there are plenty of people who would very much like to ignore the "well regulated" bit in the 2nd Ammendment, but it is there after all. "Well regulated" pretty much rules out "unlimited right."

Please try to keep in mind that very few people (including the majority of the NRA) actually believe that there shouldn't be any restrictions on firearms. The mainstream objection is to restrictions that would hinder the law-abiding gun owner more than it would hinder the law-ignoring gun owner.

For example, safety locks... as has been argued in another thread, it'd be very difficult to enforce such a law (you can't go kicking in people's houses looking for locked-up guns without probable cause, can you?). Waiting periods, also, which do nothing but make the purchaser of the gun wait... I mean, it doesn't take very long to do a background check these days. Certainly not 30 days. Licensing, too... Mr Joe Average would follow that law, but Bubba de Criminal wouldn't be affected in the slightest.

In other words, worthless restriction is bad, worthful restriction is good. That has always been my stance, and the stance of the NRA.

[jshore]

Originally posted by Opus1

Danimal: thanks for pointing out the death-penalty stance. I knew there were certain things that the ACLU disagreed with everyone on, and yet sill considered themselves to be on the side of the constitution.

Disagreed with everyone on? Like the Republican governor of Illinois who issued a moratorium on death penalty executions until they could be studied further? (Admittedly, he is not as strongly of the belief that the death penalty is wrong as the ACLU is, but the point is that views change over time. It is the job of the judiciary to enforce our basic rights even when they aren't currently popular.)

[jshore]

Originally posted by SPOOFE Bo Diddly

In other words, worthless restriction is bad, worthful restriction is good. That has always been my stance, and the stance of the NRA.

"Cop-killer" bullets (i.e., ones that go through bullet-proof vests) good, guns that can pass through metal detectors good. Is this the same NRA you're talking about?

[snac]

Where does the Second Amendment restrict itself to guns? Today we have bigger and better weapons than those silly old colonial militias were dealing with.

I am personally building my own nuclear bomb. Hey, if the government has one, I need one too...

What's the NRA's official stance on people possessing "arms" of greater destructive potential than an Uzi?

[Danimal]

Originally posted by Anthracite
Is not one of the criticisms of the ACLU that they interpret the term "the people" in the Constitution to mean "the individual person" in every single case except in that of the 2nd Amendment? Thus picking and choosing how they want to interpret such an important definition?

That is right (although the criticism is not directed at the ACLU only). For instance, the ACLU and everybody else says, "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" is an individual right, not limited to the states or the people's representatives assembled in Congress.

[Opus1]

Disagreed with everyone on? Like the Republican governor of Illinois who issued a moratorium on death penalty executions until they could be studied further? (Admittedly, he is not as strongly of the belief that the death penalty is wrong as the ACLU is, but the point is that views change over time. It is the job of the judiciary to enforce our basic rights even when they aren't currently popular.)

Obviously "everyone" does not mean every single citizen of this country. The Supreme Court has upheld the death penalty as constitutional. The death penalty has been legal in this country since its inception. Personally, I'm not a death penalty supporter. It will probably be outlawed some day. But the ACLU's position disagrees with a number of current court rulings. This sort of undermines the claim that they simply defend the rights that the Supreme Court has already given us. Rather, they are defending rights that they would like us to have. Again, there's nothing wrong with that except for the sanctimonious hypocrasy. There's lots of anti-death penalty groups in this country. The ACLU should just come out and admit that they are trying to change the law, rather than defend it.

[Monster104]

Where does the Second Amendment restrict itself to guns? Today we have bigger and better weapons than those silly old colonial militias were dealing with.

Uh...yeah. Building yerself a Nuke, eh? See, the thing is, most Americans have some kind of intelligence, something you apparently aren't all that gifted in. There's just a slight difference between "arms" (Arms being guns, at the time the Constitution was drafted. You do know when that was, right?) and "military hardware".

[Flymaster]

Originally posted by Monster104
Uh...yeah. Building yerself a Nuke, eh? See, the thing is, most Americans have some kind of intelligence, something you apparently aren't all that gifted in. There's just a slight difference between "arms" (Arms being guns, at the time the Constitution was drafted. You do know when that was, right?) and "military hardware".

And herein lies the debate. There's also a "slight difference" between "arms" (arms being muzzle loading muskets, at the time the Constitution was drafted. You do know when that was, right?) and "military hardware" (Say, an AK-47).

[Kimstu]

Opus: But the ACLU's position disagrees with a number of current court rulings. This sort of undermines the claim that they simply defend the rights that the Supreme Court has already given us. Rather, they are defending rights that they would like us to have. Again, there's nothing wrong with that except for the sanctimonious hypocrasy.

I admit you were right about the more activist stance of the ACLU, Opus, but I don't quite see why it should be considered "sanctimonious hypocrisy." Their stated purpose is to defend the rights of US citizens. Naturally, that means "rights" as the ACLU sees them (and, for the majority of the time even if not all of the time, as US courts generally see them too). I don't think that's particularly sanctimonious, nor hypocritical. Obviously they're not going to go around proclaiming "We'll defend your claim to any right you think you have, even if we think you're totally nuts for suggesting it!" Considering the battles the ACLU wages on behalf of citizens' right to privacy, free expression, free exercise of religion, and a host of other things, I would not be inclined to call them "hypocrites" for calling themselves "defenders of civil liberties", even if they don't always see eye-to-eye with you (or me) about exactly what constitutes the full set of civil liberties.

The ACLU should just come out and admit that they are trying to change the law, rather than defend it.

They don't hide the fact that they're trying to change the law. What they're trying to defend, in their view, is the constitutional rights of citizens, not the law per se.

(By the way, snac, I don't think the NRA would really go to bat for private ownership of nuclear bombs. They seem to be firmly against any across-the-board prohibitions on private ownership of any small arms (revolvers and self-loading pistols; rifles and carbines; sub-machine guns; assault rifles; light machine-guns). I don't know if they oppose private ownership of light weapons (heavy machine-guns; hand-held under-barrel and mounted grenade launchers; portable anti-aircraft guns; portable anti-tank guns; recoilless rifles; portable launchers of anti-tank missile and rocket systems; portable launchers of anti-aircraft missile systems; mortars of less than 100mm of calibre) and corresponding ammunition and explosives (shells and missiles for light weapons; mobile containers with missiles or shells for single-action anti-aircraft and anti-tank systems; anti-personnel and anti-tank hand grenades; landmines; explosives). Perhaps some better-informed NRA member can inform us exactly which weapons the organization feels that law-abiding citizens do have an unrestricted right to own, and which are inappropriate to "keep and bear".

---Though judging from Monster's and Flymaster's exchange just above, it may be difficult to get a clear consensus on this. C'mon NRA folks, what's the Straight Dope? Portable anti-tank rocket launchers, yes or no? Anti-personnel hand grenades, yes or no?)

[Una Persson]

Originally posted by jshore

"Cop-killer" bullets (i.e., ones that go through bullet-proof vests) good, guns that can pass through metal detectors good. Is this the same NRA you're talking about?

Do you even know what that means? Let me ask you a question - is any bullet that can penetrate a police tactical vest a "cop-killer bullet"? Better ban all hunting rifles then - because almost all hunting rifles over .223 (and I think .223 as well) can penetrate a police tactical vest. Yes, the NRA is opposed to blanket bans of all hunting rifles. And so, apparantly, are Al Gore and Bill Clinton. At least, that is what they say...

As to your "guns that can pass through metal detectors" statement - another non sequiter. No such gun has been produced for mass sale, and there was never any attempt to legalize such a gun. And the NRA never backed any proposal to allow guns that would escape detection by metal detectors.

If you're anti-gun, fine. But stop making up things. That's really sad, and lies just make the legitimate anti-gun argument look silly, ignorant, and dishonest. Please admit you are wrong, and withdraw your points. Or prove me wrong.

[Boris B]

Monster104 wrote,

Now, this is from an obscure document that people often refer to but don't seem to have read....

Yes, that's right. It's the second amendment, taken straight from the Constitution. Now, where does it say, weapons are to be well regulated? I see the part of having a well regulated militia to keep the country free, and another part about the people having the right to keep and bear arms. There's also a little part that says "shall not be infringed". Gee, what does that mean?

Isn't it a bit late to be getting all sarcastic about the Constitution, when I've already supplied a constitutional cite? Have you ever read the part of Constitution that I cited? Intepret it. Do you think the Second Amendment repeals Article I Section 8 Clause 16 or do you not?

[Una Persson]

Originally posted by Kimstu
C'mon NRA folks, what's the Straight Dope? Portable anti-tank rocket launchers, yes or no? Anti-personnel hand grenades, yes or no?)

I think this describes the pro-gun position many people have on this issue.

Paraphrased from the talk.politics.guns - Pro Gun FAQ (an EXCELLENT read, BTW):

This argument is often known as the "nuclear strawman" argument, and is really engineered to get everybody off on a tangent about whether or not the U.S. Constitution protects privately owned nuclear weapons.

Reynolds, Glenn H. and Kates, Don B., "The Second Amendment And States' Rights: A Thought Experiment," William and Mary Law Rev., v.36 pp. 1737-1768 (1995)

In summary: The Second Amendment protects all arms, though as is mentioned elsewhere, those arms which have some relationship to a well-regulated militia are better protected than those which do not, at least according to legal precedent. Many people are justifiably distressed at the thought of private individuals owning such indiscriminately destructive and persistently dangerous weapons. Some supporters of the civil right to keep and bear arms, as a result, seek to interpret "arms" as meaning "personal arms" (i.e. those which can be carried and used by an individual against another individual). However, in researching the era during which Amendment II was drafted, it is possible to find individuals who owned cannon and privateer ships, much as it is possible today to find people who own tanks and planes from the World War II era (and later), some with functioning guns. Civil War re-enactor companies today sometimes own cannon and other weapons which were state-of-the-art for that period.

If one attempts to "creatively interpret" the Second Amendment today to say that it should now only apply to "personal arms" (in the absence of any textual or historical basis for that interpretation), what legitimate objection can one have to others who "creatively interpret" it to say that it now applies only to the National Guard, or even to say that it's entirely outmoded and can be totally ignored?

Any of these is an arbitrary selective interpretation, and all are equally unsupportable, as would be any attempt to limit the First Amendment protection of a free press only to, say, presses like those used by Benjamin Franklin, and not the unimaginably more powerful telecommunications devices of today. It is perhaps not surprising, however, that the power which modern telecommunications gives to the individual is similarly opposed, out of fears of what can possibly be done with it.

The implications of the "states' rights" interpretation of the Second Amendment are also noteworthy in this regard. If the Second Amendment is properly understood to protect the militias of the state governments from being interfered with by the Federal authority, the existing structure of the National Guard would very likely be unconstitutional, and there could be no bar to the states possessing independent nuclear arsenals as a counterforce to the power of the Federal standing army. The types of "arms" available to a state government, particularly in a wealthy state like California, would undoubtedly exceed that of most every individual.

The Second Amendment was indeed written to protect all arms, and thus nuclear weapons are included. If multibillionaires (or wealthy state
militias!) funding their own private bomb development efforts seem to be a problem worthy of serious consideration, what's the solution?
Follow the procedure that the authors of the Constitution provided for modifying the Constitution to adapt to changing times --amend it by following the procedures in Article V. The people who wrote the Constitution did not intend for it to be selectively interpreted in order to fit changing conditions. They planned that if conditions did change enough to warrant an alteration in a provision of the Constitution, it should be done with due care and consideration, and only upon the agreement of two thirds of each house of Congress, and three fourths of the legislatures of the states. This is the
proper way to react to changing times-- through the amendment process, and not by arbitrary denial of the plain language of the Constitution, by whatever branch of government.

[Boris B]

anthracite wrote,

Do you even know what that means? Let me ask you a question - is any bullet that can penetrate a police tactical vest a "cop-killer bullet"? Better ban all hunting rifles then - because almost all hunting rifles over .223 (and I think .223 as well) can penetrate a police tactical vest.

I figured that when jshore mentioned "cop-killer bullets", he was talking about bullets. You seem to be talking about cartridges. Arguments about armor-piercing bullets center on the design of the bullet, not the power of the cartridge. Some people think that bronze-, brass-, and/or steel-core bullets need some special new regulations because of their resistance to deformation when they hit body armor; I do not. I'm just trying to keep us all on the same page.

[capacitor]

So you're saying Anthracite that if Bill Gates and Larry Ellison gets hold of nukes and aim it at each other's houses, they legally can?

[Boris B]

kimstu wrote,

Though judging from Monster's and Flymaster's exchange just above, it may be difficult to get a clear consensus on this.

Boy oh boy you can say that again! One funny thing about people on both sides of this issue is the inability of so many to admit that there are many shades of opinion on each side. I've discussed the issue of "rights to own which weapons are protected by the Second Amendment?" with a lot of pro-gun people and I get nearly as many answers as people.

I summarize these, as follows (adding my own comments):

1. Of course artillery and missiles aren't protected by the Second Amendment. Nobody thinks they are. (That's right, these folks don't just disagree with proponents of view number 2, they deny their very existence.) "Arms" clearly refers only to man-portable firearms using unguided projectiles. (Which would include 40mm grenade launchers unless you had a very detailed definition of firearm, which would open another can of worms.)

2. Of course artillery and missiles are protected by the Second Amendment. This is a good provision and should be left in place.

3. It doesn't matter, because the Federal Government regulates artillery and the like as Destructive Devices, which require registration and a tax. (This argument is completely off the subject; the topic is what pro-gun people feel the Feds have the right to regulate, not what the Fed actually do regulate.)

4. (I was just introduced to this one by anthracite.) Artillery, missiles, and nuclear warheads are protected by the Second Amendment. This is a bad provision and should be amended away. (What to do about the Stinger missiles that old guy keeps on his farm near the airport while the amendment wends its way through the legislatures is a question left unanswered. Where the pro-gun groups are lining up to support this amendment is also left unanswered.)

[The Ryan]

Kimstu

Um, no, actually. Whatever it takes to conform to what the ACLU has concluded that the Supreme Court says that our constitution says. The ACLU is an advocacy group, not for instituting freedoms that some people think Americans ought to possess, but for the defense of the freedoms that it has been widely accepted, especially by the courts, that Americans do currently possess.

Not only would this be a ridiculous position for the ACLU to take (we only defend rights that are in abolutely no danger of being threatened), but it is not true. From their website:

In 1920, when the ACLU was founded... civil liberties were in a sorry state... the Supreme Court had yet to uphold a sinlgle free speach claim under the First Amendment

In other words, public attitude towards the 1st amendment was almost exactly the same as towards the 2nd amendment.

Originally posted by Boris B
I think the ACLU is aware of Article I, Section 8, Clause 16, and is taking this into account in their intepretation of the Second Amendment.

Fist of all, what part of "amendment" do you not understand? Secondly, how does I 8 16 contradict the 2nd amendment?

[SPOOFE]

Jshore...

"Cop-killer" bullets (i.e., ones that go through bullet-proof vests) good

Any bullet that comes out of your average rifle will go through "bullet-proof vests". BP vests aren't some sort of magic armor that will protect a cop from all sorts of damage. As such, your contention that the NRA supports "Cop-killer" bullets has no grounds in reality, as "Cop-killer" bullets as you describe them are simply standard bullets that are being misused.

guns that can pass through metal detectors good.

These do not exist, except in movies. Perhaps Wesley Snipes isn't the best source for your anti-gun rhetoric?

Is this the same NRA you're talking about?

You mean, the NRA with a touch of sense? That's exactly what I'm talking about.

[The Ryan]

In other words, public attitude towards the 1st amendment was almost exactly the same as towards the 2nd amendment.

Sorry, that should be "In other words, public attitude towards the 1st amendment then was almost exactly the same as towards the 2nd amendment is now.

[Gadarene]

Opus1:

The death penalty has been legal in this country since its inception.

If by "this country" you mean the United States, then this statement is patently untrue. The Supreme Court placed a moratorium on capital punishment for several years in the 1970s.

[elucidator]

American Civil Liberties Union. Concerned with civil liberties. Has done the vast majority of its stuff in First Amendment, which is what civil liberties is all about. I myself am a free speech absolutist. You can't do anything you want, but you can say anything you want.

Popular beliefs do not need protection. It is the unpopular point of view that needs protection. Your right to speak out in favor of apple pie, nice firm fannies, and Our Boys in Whereverthehell is not likely to be seriously abridged.

ACLU defends the rights of Nazi's to spew toxic rot. The right of the Man/Boy Love group to put forth a repugnant sexual viewpoint. TO many it seems as though they only spring to defend ideas that are repugnant. They don't. They defend the right to express ideas that are repugnant.

And I say God bless 'em!

[Boris B]

The Ryan wrote,

Fist of all, what part of "amendment" do you not understand?

The part you're referring to by innuendo, apparently.

Secondly, how does I 8 16 contradict the 2nd amendment?

Did anyone say Article I Section 8 Clause 16 contradicts the Second Amendment? I didn't. They are both active sections of the Constitution. The Second Amendment prohibits categorically banning individual citizens (the militia) from owning guns; Article I Section 8 Clause 16 allows the Congress to organize, discipline, and have a role in the training of individual gun-owners. I also believe that the ACLU is aware of the latter section of the Constitution as well as the former.

[Danimal]

I'm just a newbie here, so I don't want it to be felt that I'm ordering anyone around.

I would like to suggest that we make the "Gun Control Revisited thread" the "NRA thread," while making this thread the "ACLU thread." I think if we did that we could reduce the overlap of the threads. This is only a suggestion.

[Kimstu]

Anthracite: Let me ask you a question - is any bullet that can penetrate a police tactical vest a "cop-killer bullet"? Better ban all hunting rifles then - because almost all hunting rifles over .223 (and I think .223 as well) can penetrate a police tactical vest. Yes, the NRA is opposed to blanket bans of all hunting rifles.

What I think the story is is that hard-cored coated bullets (originally developed for police use), such as KTW ammunition, were initially (in the early 80's) going to be banned from private ownership by a law based on penetration power that was sweeping enough to make most conventional rifle ammunition illegal too. The NRA opposed this, and this led to claims that "the NRA favors cop killer bullets." To be fair, the NRA did support, or now says it supported, the 1986 law (I think the bill was 99th Congress, HR 4) that outlawed manufacturing and importing specifically defined "armor piercing ammunition"; although to be fair on the other side too, I doubt that they would have gotten so squarely behind the new legislation if it hadn't been for all the negative publicity about "NRA favors cop killer bullets."

But the story doesn't end there. There have been other legislative efforts to restrict specifically defined "armor piercing ammunition." For example, the 106th Congress last year introduced a bill (S 158) to "regulate the manufacture, importation, and sale of ammunition capable of piercing police body armor". Now this bill is listed on the NRA Legislative Action site as part of what they designate current "anti-gun" legislation, which they seem to be against. If, as the site I linked to above claims, the NRA is in favor of banning "armor piercing ammunition", then why would they oppose S 158? If it's because they have solid reason to believe that the legislation is unnecessary, I think they should say so explicitly and avoid a lot of misunderstanding and confusion. If it's just out of general antiregulatory fervor, I don't think it's out of line to respond that that means that the NRA supports (or at least won't oppose) "cop killer" bullets.

As to your "guns that can pass through metal detectors" statement - another non sequiter. No such gun has been produced for mass sale, and there was never any attempt to legalize such a gun. And the NRA never backed any proposal to allow guns that would escape detection by metal detectors.

Again, there seem to be some facts on both sides. The original "plastic gun" scare seems to have occurred over another early-80's weapon, the Glock 17, which in fact had enough metal to be detected by airport scanners. So why does the NRA's "fact sheet" announce that "the plastic gun is a myth" and at the same time argue that "More effective efforts include better training and screening of airport personnel and having state-of-the-art detection equipment in our nation's airports. With well-trained people to complement existing and new technologies, will go a long way toward beating terrorism. Banning any firearm is not the answer. The fact is, it's a media-made myth that dangerously ignores the real problem." This seems to be saying that "there are no plastic guns and we should put our efforts into improving detection of them rather than banning them." Huh? Does the NRA think that scanner-cheating polymer guns exist, or not? If so, why would they argue against banning them?

As for my query on what arms might be considered eligible for regulation according to pro-gun views---holy cow, Anthracite!

The Second Amendment was indeed written to protect all arms, and thus nuclear weapons are included. If multibillionaires (or wealthy state militias!) funding their own private bomb development efforts seem to be a problem worthy of serious consideration, what's the solution? Follow the procedure that the authors of the Constitution provided for modifying the Constitution to adapt to changing times --amend it by following the procedures in Article V.

Great day in the morning. So our choice lies between accepting private ownership of everything up to and including state-of-the-art weapons of mass destruction, and amending the Constitution? Man, does that ever incline me to a weak interpretation of the Second Amendment. Y'know, this is the sort of thing that gets the pro-gun faction written off as a bunch of lunatics even among many people who seriously respect the sincerity and responsibility of most gun owners. I can kind of see why the ACLU doesn't want to get involved with this.

And on that note, sorry 'bout the hijack Danimal. (scurrying back to original topic)

The Ryan: Not only would this be a ridiculous position for the ACLU to take (we only defend rights that are in abolutely no danger of being threatened), but it is not true.

Opus and Danimal already pointed out to me that the ACLU doesn't in fact always restrict its support to positions that have a strong judicial consensus behind them; but actually, even rights that do have such a consensus are often threatened---not by the courts, but by patently unconstitutional legislation and policies that get enacted in defiance of the body of judicial opinion. There is plenty of unconstitutional stuff to fight against on the legislative level, even in areas where the judiciary is clear about its unconstitutionality. Yup, it's stupid to pass laws or adopt policies that any fool could see a court would knock down right away, but legislatures and schools and employers are constantly doing it, and it generally doesn't get fixed till an ACLU-supported plaintiff takes it to court.

[Danimal]

It's late and my brain is stripping gears at the moment, but . . .

Would not a reasonable interpretation of "keep and bear arms" be limited to arms that you actually can "bear?" As in carry around? I would like to see somebody try and bear an M1 Abrams or a 5-megaton strategic H-bomb.

[SPOOFE]

This seems to be saying that "there are no plastic guns and we should put our efforts into improving detection of them rather than banning them."

No, no... they're saying "There's no plastic gun capable of getting past metal detectors. If there is one developed in the future, then most likely detection will have advanced to the point of stopping that, as well."

So our choice lies between accepting private ownership of everything up to and including state-of-the-art weapons of mass destruction, and amending the Constitution?

Not at all. I think Anthracite's point is that "gun fanatics" such as the NRA are NOT opposed to reasonable restrictions on arms (restricting nuclear weapons being a reasonabl restriction).

Would not a reasonable interpretation of "keep and bear arms" be limited to arms that you actually can "bear?" As in carry around? I would like to see somebody try and bear an M1 Abrams or a 5-megaton strategic H-bomb.

While one certainly can't carry around a tank, one can easily carry a 5-megaton hydrogen bomb. One can fit into a suitcase, no problem.

A reasonable interpretation of "arms" would be "weapons that are sufficient in providing defense for you and your family". Meaning that an AK-47 isn't necessary towards defense, nor is a sawed-off shotgun... however, requiring trigger locks DETRACTs from defensive purposes, hence it's an unreasonable restriction.

[Joe_Cool]

Originally posted by Ptahlis
...While I am not a gun-control fanatic, and I do believe that individuals have the right to bear arms, I still cannot figure how certain gun nuts seem to believe that no possible regulation of firearms is permitted by the Constitution.

The amendment in question in your post reads:

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.

It says, clearly, that the right of the people to keep and bear arms shall not be infringed. It does not say the right shall be well-regulated. The subordinate clause (A well regulated militia being necessary...) gives the justification for the important part, not a qualification or limitation.

It could just as easily say "Froot Loops, being an important part of this nutritious breakfast, The right of the people to keep and bear arms, Shall not be infringed." without significantly changing its meaning.

[Joe_Cool]

Originally posted by Ptahlis
...While I am not a gun-control fanatic, and I do believe that individuals have the right to bear arms, I still cannot figure how certain gun nuts seem to believe that no possible regulation of firearms is permitted by the Constitution.

Why do you get called a nut if you think something so clearly written means what it says?

[Revtim]

Originally posted by Wildest Bill
How come the ACLU if they really care about peoples rights, get involved in Second Amendment cases?

Getting back to the OP:

Why can't the ACLU (or any other org) pick and choose what rights they want to defend? What obligation do they have to try and defend every Constitutional right?

You can't defend one right without defending them all? That's ludicrous. They can fight for whatever cause they want, and ignore any other causes they want to ignore.

[ElvisL1ves]

Originally posted by Joe_Cool
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.

It says, clearly, that the right of the people to keep and bear arms shall not be infringed. It does not say the right shall be well-regulated. The subordinate clause (A well regulated militia being necessary...) gives the justification for the important part, not a qualification or limitation.

It could just as easily say "Froot Loops, being an important part of this nutritious breakfast, The right of the people to keep and bear arms, Shall not be infringed." without significantly changing its meaning. [/quote]

Please. Why would the Founding Fathers have put that clause in if they didn't intend it to mean what it says? Note that no other amendment has its own purpose stated.

Next: How can a militia, or anything else, be well-regulated if Congress does not have the power to regulate it?

I really enjoy hearing a hard-core gun rights supporter try to explain why only half of the single sentence that makes up the Second Amendment is sacred, while the other half can be ignored.