For decades, the American Civil Liberties Union has defended the exercise of those enumerated liberties found in the Bill of Rights. Well, most of them, anyway. The organization has long treated the Second Amendment as the bastard stepchild of the U,S. Constitution; a dead letter that protected individual service in a militia, perhaps, but not individual gun ownership itself.
As Jacob Sullum writes at Reason, in a lengthy column that’s worth reading in its entirety, the ACLU appears to have evolved over the past decade, though I’d argue it still has a long way to go before it’s as supportive of the right to keep and bear arms as a true civil liberties organization should be.
Still, the days when the ACLU actually (and openly) advocated for a ban on handguns appears to be over. In U.S. v. Hemani, the ACLU took the position that Section 922(g)(3) and its prohibition on gun ownership for “unlawful” users of drugs violates the Second Amendment rights of Ali Danial Hemani, who was charged with possessing a handgun as a regular user of marijuana.
Attorney Wendy Kaminer, who served on the ACLU of Massachusetts board for nearly twenty years and did a seven-year stint on the national board that ended in 2006, told Sullum that while the organization has selectively embraced a 2A position in some cases, it has yet to adopt a consistent stance on the right to keep and bear arms.
That explicit defense of gun rights [in Hemani] suggests “the ACLU doesn’t have a coherent position on the Second Amendment,” Kaminer says. “They’re sort of trying not to have a position on the Second Amendment, but to have enough leeway so that they can step into cases where they’re sympathetic to the parties or unsympathetic to the government. They want to defend the rights of marijuana users. They want to defend the rights of people with nonviolent criminal records. Having this really fuzzy, elastic, not entirely coherent approach to the Second Amendment allows them to do that.”
Kaminer suggests another factor that may have played a role in the ACLU’s evolving stance. “Given where we are politically,” she says, “there’s some significant number of liberals or progressives who are becoming more sympathetic to individual gun ownership rights because they’re feeling a lot more threatened by the government.”
I suspect that Kaminer is right, at least about the organization getting involved in cases where its already sympathetic to defendants or in opposition to other government policies like the criminalization of marijuana. And even then, I have my doubts about how far the organization is willing to go. Would the ACLU have gotten involved in the Hemani case, for instance, if Ali Danial Hemani had been charged with possessing an AR-15 while regularly consuming cannabis?
I have my doubts. As recently as four years ago, the ACLU submitted an amicus brief in Bruen that sided with the state of New York, not individual gun owners trying to exercise their right to carry. The ACLU maintained that states “may reasonably conclude that the proliferation of guns in public chills First Amendment activity,” so a “may issue” licensing regime that allows governments to deny permits to those who can’t produce a “justifiable need” to carry a gun in self-defense is/was okay by the ACLU.
Sullum contends that Hemani “vividly illustrates the potential for transpartisan alliances at the intersection of gun control and the war on drugs.” The ACLU, along with Second Amendment groups and organizations like NORML, the National Association of Criminal Defense Lawyers, and libertarian groups like Cato Institute and Reason Foundation all found common ground in opposing Section 922(g)(3) and its prohibition on gun ownership for “unlawful” drug users. That is a good thing, and it’s a sign of progress on the part of the ACLU. Still, there’s much more evolution to be done before I’d consider the ACLU to be a true defender of the right to keep and bear arms and not just a group that’s willing to invoke the Second Amendment only when it suits their position on issues outside the realm of gun control
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