[481] in libertarians
Re: ACLU
daemon@ATHENA.MIT.EDU (sethf@MIT.EDU)
Thu Dec 8 17:24:34 1994
From: sethf@MIT.EDU
Date: Thu, 8 Dec 1994 17:17:41 -0500
To: libertarians@MIT.EDU
One more round of the canonical ACLU flame war ... The
ACLU-bashers are usually peddling one part utter fabrication, one part
partisan criticism, and one part real controversy. The ACLU is on-line, at
URL gopher://gopher.aclu.org:6601, so accurate statements can be obtained
from that site.
> I remembered someone's comment on the tpg newsgroup about the ACLU having
> changed its policy after having defending the Nazis marching on Skokie years
> ago. I believe they no longer take such cases, and stick to "liberal" agenda
> type cases nowdays. However, I couldn't very well just state this without
> proof, so I did a little digging in the RKBA archive site and found the
> following article. It starts out with a criticism of the ACLU's position
> on the Second Amendment, and then moves on to a discussion of their
> policy change in recent years.
Exactly the formula stated above - a combination of fabrication,
partisianship and some reality to support it. The ACLU still does take
such cases. They recently defended the Klan. They won a significant
First-Amendment victory over sexual harassment policies (!) in CA just a
few months ago. They've issued statements against speech codes, Waco,
HUD. I append some PRIMARY SOURCES below.
The Second Amendment point is the only one where the *long-term*
policy of the ACLU isn't consistent with a civil-liberties view. I think
the critics have a point here, I append also the ACLU specific statement
regarding that. But it's nothing new, it doesn't support the criticism
that the ACLU has moved left from an earlier (assumed-better) non-left stance.
Now, the way the partisianship works is to hold the current
behavior up to an absolute standard, or a rose-glasses view of the past.
Since they can't match this, the writer then goes on to denounce them.
Skokie was not unanimous by any means, there was great dispute and mass
resignation. The ACLU also is made up of a national and many state
affiliates. If ONE of them does anything wrong, that's used to smear
EVERYTHING. And the Southern California affiliate seems to provide a lot
of this material. But no organization is perfect. That why I say, when
looking to the IRF, don't tell me about how the ACLU is imperfect, tell
me about how you have a better record of principle over politics. They
can't do it, which is why they try to have the ACLU judged on an
absolute standard when they themselves have no record of principle at all.
================
Seth Finkelstein
sethf@mit.edu
American Civil Liberties Union Briefing Paper Number 16
+---------------------+
HATE SPEECH ON CAMPUS
+---------------------+
In recent years, a rise in verbal abuse and violence directed at people of
color, lesbians and gay men, and other historically persecuted groups has
plagued the United States. Among the settings of these expressions of
intolerance are college and university campuses, where bias incidents have
occurred sporadically since the mid-1980s. Outrage, indignation and
demands for change have greeted such incidents -- understandably, given the
lack of racial and social diversity among students, faculty and
administrators on most campuses.
Many universities, under pressure to respond to the concerns of those who
are the objects of hate, have adopted codes or policies prohibiting speech
that offends any group based on race, gender, ethnicity, religion or sexual
orientation.
That's the wrong response, well-meaning or not. The First Amendment to the
United States Constitution protects speech no matter how offensive its
content. Speech codes adopted by government-financed state colleges and
universities amount to government censorship, in violation of the
Constitution. And the ACLU believes that all campuses should adhere to
First Amendment principles because academic freedom is a bedrock of
education in a free society.
How much we value the right of free speech is put to its severest test when
the speaker is someone we disagree with most. Speech that deeply offends
our morality or is hostile to our way of life warrants the same
constitutional protection as other speech because the right of free speech
is indivisible: When one of us is denied this right, all of us are denied.
Since its founding in 1920, the ACLU has fought for the free expression of
all ideas, popular or unpopular. That's the constitutional mandate.
Where racist, sexist and homophobic speech is concerned, the ACLU believes
that more speech -- not less -- is the best revenge. This is particularly
true at universities, whose mission is to facilitate learning through open
debate and study, and to enlighten. Speech codes are not the way to go on
campuses, where all views are entitled to be heard, explored, supported or
refuted. Besides, when hate is out in the open, people can see the
problem. Then they can organize effectively to counter bad attitudes,
possibly change them, and forge solidarity against the forces of
intolerance.
College administrators may find speech codes attractive as a quick fix, but
as one critic put it: "Verbal purity is not social change." Codes that
punish bigoted speech treat only the symptom: The problem itself is
bigotry. The ACLU believes that instead of opting for gestures that only
appear to cure the disease, universities have to do the hard work of
recruitment to increase faculty and student diversity; counseling to raise
awareness about bigotry and its history, and changing curricula to
institutionalize more inclusive approaches to all subject matter.
Questions?
=====================================================================
I just can't understand why the ACLU defends free speech for racists,
sexists, homophobes and other bigots. Why tolerate the promotion of
intolerance?
=====================================================================
Free speech rights are indivisible. Restricting the speech of one group or
individual jeopardizes everyone's rights because the same laws or
regulations used to silence bigots can be used to silence you. Conversely,
laws that defend free speech for bigots can be used to defend the rights of
civil rights workers, anti-war protesters, lesbian and gay activists and
others fighting for justice. For example, in the 1949 case of Terminiello
v. Chicago, the ACLU successfully defended an ex-Catholic priest who had
delivered a racist and anti-semitic speech. The precedent set in that case
became the basis for the ACLU's successful defense of civil rights
demonstrators in the 1960s and '70s.
The indivisibility principle was also illustrated in the case of Neo-Nazis
whose right to march in Skokie, Illinois in 1979 was successfully defended
by the ACLU. At the time, then ACLU Executive Director Aryeh Neier, whose
relatives died in Hitler's concentration camps during World War II,
commented: "Keeping a few Nazis off the streets of Skokie will serve Jews
poorly if it means that the freedoms to speak, publish or assemble any
place in the United States are thereby weakened."
========================================================================
I have the impression that the ACLU spends more time and money defending
the rights of bigots than supporting the victims of bigotry!!??
========================================================================
Not so. Only a handful of the several thousand cases litigated by the
national ACLU and its affiliates every year involves offensive speech.
Most of the litigation, advocacy and public education work we do preserves
or advances the constitutional rights of ordinary people. But it's
important to understand that the fraction of our work that does involve
people who've engaged in bigoted and hurtful speech is very important:
Defending First Amendment rights for the enemies of civil liberties and
civil rights means defending it for you and me.
===========================================================================
Aren't some kinds of communication not protected under the First Amendment,
like "fighting words?"
===========================================================================
The U.S. Supreme Court did rule in 1942, in a case called Chaplinsky v. New
Hampshire, that intimidating speech directed at a specific individual in a
face-to-face confrontation amounts to "fighting words," and that the person
engaging in such speech can be punished if "by their very utterance [the
words] inflict injury or tend to incite an immediate breach of the peace."
Say, a white student stops a black student on campus and utters a racial
slur. In that one-on-one confrontation, which could easily come to blows,
the offending student could be disciplined under the "fighting words"
doctrine for racial harassment.
Over the past 50 years, however, the Court hasn't found the "fighting
words" doctrine applicable in any of the hate speech cases that have come
before it, since the incidents involved didn't meet the narrow criteria
stated above. Ignoring that history, the folks who advocate campus speech
codes try to stretch the doctrine's application to fit words or symbols
that cause discomfort, offense or emotional pain.
=======================================================================
What about nonverbal symbols, like swastikas and burning crosses -- are
they constitutionally protected?
=======================================================================
Symbols of hate are constitutionally protected if they're worn or displayed
before a general audience in a public place -- say, in a march or at a
rally in a public park. But the First Amendment doesn't protect the use of
nonverbal symbols to encroach upon, or desecrate, private property, such as
burning a cross on someone's lawn or spray-painting a swastika on the wall
of a synagogue or dorm.
In its 1992 decision in R.A.V. v. St. Paul, the Supreme Court struck down
as unconstitutional a city ordinance that prohibited cross-burnings based
on their symbolism, which the ordinance said makes many people feel "anger,
alarm or resentment." Instead of prosecuting the cross-burner for the
content of his act, the city government could have rightfully tried him
under criminal trespass and/or harassment laws.
The Supreme Court has ruled that symbolic expression, whether swastikas,
burning crosses or, for that matter, peace signs, is protected by the First
Amendment because it's "closely akin to 'pure speech.'" That phrase comes
from a landmark 1969 decision in which the Court held that public school
students could wear black armbands in school to protest the Vietnam War.
And in another landmark ruling, in 1989, the Court upheld the right of an
individual to burn the American flag in public as a symbolic expression of
disagreement with government policies.
=======================================================================
Aren't speech codes on college campuses an effective way to combat bias
against people of color, women and gays?
=======================================================================
Historically, defamation laws or codes have proven ineffective at best and
counter-productive at worst. For one thing, depending on how they're
interpreted and enforced, they can actually work against the interests of
the people they were ostensibly created to protect. Why? Because the
ultimate power to decide what speech is offensive and to whom rests with
the authorities -- the government or a college administration -- not with
those who are the alleged victims of hate speech.
In Great Britain, for example, a Racial Relations Act was adopted in 1965
to outlaw racist defamation. But throughout its existence, the Act has
largely been used to persecute activists of color, trade unionists and
anti-nuclear protesters, while the racists -- often white members of
Parliament -- have gone unpunished.
Similarly, under a speech code in effect at the University of Michigan for
18 months, white students in 20 cases charged black students with offensive
speech. One of the cases resulted in the punishment of a black student for
using the term "white trash" in conversation with a white student. The
code was struck down as unconstitutional in 1989 and, to date, the ACLU has
brought successful legal challenges against speech codes at the
Universities of Connecticut, Michigan and Wisconsin.
These examples demonstrate that speech codes don't really serve the
interests of persecuted groups. The First Amendment does. As one African
American educator observed: "I have always felt as a minority person that
we have to protect the rights of all because if we infringe on the rights
of any persons, we'll be next."
===========================================================================
But don't speech codes send a strong message to campus bigots, telling them
their views are unacceptable?
===========================================================================
Bigoted speech is symptomatic of a huge problem in our country; it is not
the problem itself. Everybody, when they come to college, brings with them
the values, biases and assumptions they learned while growing up in
society, so it's unrealistic to think that punishing speech is going to rid
campuses of the attitudes that gave rise to the speech in the first place.
Banning bigoted speech won't end bigotry, even if it might chill some of
the crudest expressions. The mindset that produced the speech lives on and
may even reassert itself in more virulent forms.
Speech codes, by simply deterring students from saying out loud what they
will continue to think in private, merely drive biases underground where
they can't be addressed. In 1990, when Brown University expelled a student
for shouting racist epithets one night on the campus, the institution
accomplished nothing in the way of exposing the bankruptcy of racist ideas.
============================================================
Does the ACLU make a distinction between speech and conduct?
============================================================
Yes. The ACLU believes that hate speech stops being just speech and
becomes conduct when it targets a particular individual, and when it forms
a pattern of behavior that interferes with a student's ability to exercise
his or her right to participate fully in the life of the university.
The ACLU isn't opposed to regulations that penalize acts of violence,
harassment or intimidation, and invasions of privacy. On the contrary, we
believe that kind of conduct should be punished. Furthermore, the ACLU
recognizes that the mere presence of speech as one element in an act of
violence, harassment, intimidation or privacy invasion doesn't immunize
that act from punishment. For example, threatening, bias-inspired phone
calls to a student's dorm room, or white students shouting racist epithets
at a woman of color as they follow her across campus -- these are clearly
punishable acts.
Several universities have initiated policies that both support free speech
and counter discriminatory conduct. Arizona State, for example, formed a
"Campus Environment Team" that acts as an education, information and
referral service. The team of specially trained faculty, students and
administrators works to foster an environment in which discriminatory
harassment is less likely to occur, while also safeguarding academic
freedom and freedom of speech.
===========================================================================
Well, given that speech codes are a threat to the First Amendment, and
given the importance of equal opportunity in education, what type of campus
policy on hate speech would the ACLU support?
===========================================================================
The ACLU believes that the best way to combat hate speech on campus is
through an educational approach that includes counter-speech, workshops on
bigotry and its role in American and world history, and real -- not
superficial -- institutional change.
Universities are obligated to create an environment that fosters tolerance
and mutual respect among members of the campus community, an environment in
which all students can exercise their right to participate fully in campus
life without being discriminated against. Campus administrators on the
highest level should, therefore,
- speak out loudly and clearly against expressions of racist, sexist,
homophobic and other bias, and react promptly and firmly to acts of
discriminatory harassment;
- create forums and workshops to raise awareness and promote dialogue on
issues of race, sex and sexual orientation;
- intensify their efforts to recruit members of racial minorities on
student, faculty and administrative levels;
- and reform their institutions' curricula to reflect the diversity of
peoples and cultures that have contributed to human knowledge and society,
in the United States and throughout the world.
ACLU Executive Director Ira Glasser stated, in a speech at the City College
of New York: "There is no clash between the constitutional right of free
speech and equality. Both are crucial to society. Universities ought to
stop restricting speech and start teaching."
A C L U
American Civil Liberties Union, 132 West 43rd Street, New York, N.Y. 10036
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ACLU answers Issue: Racist Speech on College Campuses
"Why doesn't the ACLU support
hate speech codes
on college campuses?"
INTRO
Racism, sexism and homophobia is growing on college campuses around the
country. In response, many universities have adopted policies that address
bigotry by placing restrictions on speech. The alternative to such
restrictions, many administrators argue, is to allow bigots to run rampant
and to subject their targets to a loss of equal educational opportunity.
To date, the ACLU and its affiliates have challenged overly broad speech
codes enacted by the University of Connecticut, the University of
Michigan, the University of Wisconsin and the University of California.
SOUND BITES
The power of a university to eliminate bias on campus ultimately
depends not on its ability to punish a racist speaker, but instead on the
depth of its commitment to the principles of equality and education.
No social institution is better suited to fight bigotry than the
university. It can do so in its courses and perhaps most importantly
through the way it conducts itself as a community.
We're not talking about choosing between the First Amendment and the
Fourteenth Amendment. We're talking about choosing between regulating
speech and regulating action. Murder is illegal. Talking about it isn't.
ACLU POLICY
At its October 1990 meeting, the ACLU Board of Directors unanimously
adopted a policy on Free Speech and Bias on College Campuses. The policy
stresses our longstanding belief that "all members of the academic
community have the right to hold and to express views that others may find
repugnant, offensive or emotionally distressing." The policy does not
prohibit colleges from enacting disciplinary codes aimed at restricting
acts of harassment, intimidation and invasion of privacy. The ACLU
believes the proper response to bigotry is education and speech. "Colleges
and universities," the policy says, "have an affirmative obligation to
combat racism, sexism, homophobia and other forms of bias."
ARGUMENTS, FACTS, QUOTES
Freedom of thought and expression is particularly important on the college
campuses. The educational forum is where individuals come together to
participate in a process of shared inquiry and where the success of that
endeavor depends on an atmosphere of openness, intellectual honesty and
tolerance for the ideas and opinions of others, even when hateful or
offensive.
Compromising free speech ultimately threatens the rights of minorities.
All too often, regulations on speech are used to silence the very people
they were designed to protect in the first place. As Eleanor Holmes Norton
has said: "It is technically impossible to write an anti-speech code that
cannot be twisted against speech nobody means to bar. It has been tried
and tried and tried."
"At the 1985 Biennial, we rejected Catherine MacKinnon's impassioned
plea to censor pornography reflecting sexist attitudes. Instead, we
renewed our efforts to combat sexist actions. And a decade ago, we
rejected the urgent plea of Holocaust survivors in Skokie, that we should
not defend Nazi's anti-Semitic speech. Instead, we supported more vigorous
investigation and prosecution of anti-Semitic vandalism and other hate
crimes."
-- Nadine Strossen, ACLU President
The line between protected expression and unprotected behavior is
sometimes quite thin. In determining where that line is drawn, the ACLU
has always closely scrutinized the specific language of a regulation and
its application on a case-by-case basis. For racist speech codes, the line
will be determined by considering the time and site of the incident or
incidents, the nature of the relationship between the speak and his or her
target and whether the conduct is part of a pattern of behavior.
"The social climate is suddenly less tolerant to free expression
across a wide range of issues. One theme in all of these cases is that we
can adjust our concept of free speech, slice off a few tiny corners and
leave the core intact. But that's the argument that's always been used to
justify restricting speech.
-- Geoffrey Stone, dean
University of Chicago Law School
RECOMMENDED ACTIVITIES
The new policy emphasizes that all students have the right to participate
fully in the educational process without fear of discrimination. To make
that a reality, the ACLU urged that colleges and universities take a
variety of actions, including the following:
1. To develop comprehensive plans aimed at reducing prejudice,
responding promptly to incidents of bigotry and discriminatory harassment.
2. To vigorously attract minorities, women nd members of other
historically disadvantaged groups as students, faculty members and
administrators to help stop feelings of isolation and to insure real
integration and diversity in student life.
3. To offer and consider whether to require all students to enroll in
courses in the history and meaning of prejudice, including racism, sexism
and other forms of invidious discrimination.
4. To establish new-student orientation programs and continuing
counseling programs that enable students of different races, sexes,
religions and sexual orientations to learn to live with each other.
5. To review and, where appropriate, revise course offerings as well
as extracurricular programs to recognize the contributions of those whose
art, music, literature and learning have been insufficiently reflected in
the curriculum of many American colleges and universities.
ACLU/Department of Public Education/February 6, 1991
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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU
NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE
As Trials of Waco Survivors Open in Texas, ACLU, NRA, Others Ask Clinton to
Address Federal Police Abuses
For IMMEDIATE RELEASE
January 10, 1994
WASHINGTON -- The American Civil Liberties Union, the National Rifle
Association and other organizations from across the political spectrum
today called on President Clinton to appoint a national commission to
investigate serious allegations of abuse by federal law enforcement
agencies and to recommend steps that must be taken to reduce
constitutional and human rights violations by federal law enforcement
personnel.
Led by the ACLU, the organizations delivered a letter to the
President in which they pointed out that federal law enforcement
authorities now comprise close to 10 percent of the nation's total police
forces. Some 53 separate federal agencies -- from the Bureau of Alcohol,
Tobacco and Firearms to the Immigration and Naturalization Service and
from the U.S. Mint Police Force to the Bureau of Indian Affairs Police --
have the authority to carry fire arms and make arrests, the organizations
said, a figure that represents an "enormous expansion in recent years in
terms of both personnel and jurisdiction."
"What is lacking," the ACLU and the other organizations said in
their letter, "is systematic oversight and review of federal police
practices." Such lapses, the organizations said, have led to serious
allegations of abuse, including the improper use of deadly force, use of
unreliable informants without sufficient verification of their
allegations and physical abuse.
The call for a national commission came as the survivors of the
confrontation between the Branch Davidians and the FBI and the federal
Bureau of Alcohol, Tobacco and Firearms, went on trial in San Antonio,
Texas.
"Independent experts have already questioned the federal law
enforcement practices that led to the tragic deaths of so many men, women
and innocent children," said Laura Murphy Lee, the Director of the ACLU's
Washington Office.
"We, of course, recognize that the majority of federal officers
strive, often under dangerous and demanding circumstances, to carry out
their duties in a restrained, lawful and professional manner," Murphy
added. "But at the same time, we know that the Waco confrontation was not
an isolated incident."
In addition to the ACLU and the NRA, the other organizations issuing
the call include the Citizens Committee for the Right to Keep and Bear
Arms; the Criminal Justice Policy Foundation; the Drug Policy Foundation;
the Independence Institute; the International Association for Civilian
Oversight of Law Enforcement; National Association of Criminal Defense
Lawyers; the National Legal Aid and Defender Association, and the Second
Amendment Foundation.
--endit--
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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU
NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE
ACLU to HUD: The First Amendment Protects Your Critics;
Let Us Help Safeguard The First Amendment Rights of Protesters
For IMMEDIATE RELEASE
Tuesday, August 16, 1994
The American Civil Liberties Union today called upon Housing
Secretary Henry G. Cisneros to adopt guidelines promptly to ensure that
the Fair Housing Act is not employed in violation of
constitutionally-protected rights. Lawyers for the ACLU offered to meet
with HUD officials to develop guidelines that would safeguard the First
Amendment rights of individuals and community organizations under
investigation by HUD.
In a letter made public today, the ACLU expressed its concern that
in at least two recent instances -- in Berkeley, California and in New
York City -- it appears that, in enforcing Fair Housing law, HUD has
overstepped the constitutional line by investigating community groups
engaging in traditional forms of political protest against HUD practices.
The ACLU pointed out that even the prospect of a Fair Housing Act
investigation can have a "significant chilling effect on political
protest."
"The right of local residents to express publicly their objection
to community-based housing in their neighborhood is clearly protected by
the First Amendment, however much we or others may disagree with their
opinion," the ACLU wrote.
The letter described a statement from Secretary Cisneros on August
10 asserting his sensitivity to the First Amendment issues raised by
recent HUD investigation as "a laudable first step, " but "an insufficient
solution to the problem created by investigations based on First Amendment
activity." The letter further questioned whether all HUD officials share
Secretary Cisneros' concern for violations of the constitutional rights of
HUD's critics.
Published reports in The New York Times, the Wall Street Journal
and the San Francisco Chronicle have described examples of investigations
by HUD of community organizations opposed to the placement of group homes
for the homeless or mentally disabled in their neighborhoods.
In Berkeley, California, community activists opposed to a HUD plan
to convert a local hotel into housing for the homeless first exercised
traditional forms of public protest and then sought an injunction in state
court to block the project. In response to a complaint by a housing rights
group, HUD subsequently initiated an investigation, reportedly demanding
the minutes of any public meetings, correspondence with the city, letters
to the editor and any literature, posters and newsletters produced by the
group about the conversion.
Commenting on these practices in the letter to Cisneros, the ACLU
said: "Nothing in the Fair Housing Act grants HUD such broad censorship
authority, nor does the First Amendment permit it."
In New York City, a community organization opposed to the
placement of a group home for the mentally disabled in the Gramercy Park
area has also been subject to a formal complaint and investigation by HUD.
The ACLU plans to file an amicus curiae brief in support of the First
Amendment rights of the Gramercy Park community organization.
The ACLU has strongly supported the Fair Housing Act and
specifically supports group homes for the homeless, mentally ill and those
suffering from substance abuse, but maintains that Fair Housing Act
enforcement must be consistent with the First Amendment.
"The government can demand compliance with the law; it cannot
demand public support for it," the letter concluded. Signed by the ACLU's
national Legal Director, Steven R. Shapiro, New York Civil Liberties Union
Executive Director Norman Siegel, NYCLU Legal Director Arthur Eisenberg
and Anne Brick, staff attorney with the ACLU of Northern California, the
letter was sent to Secretary Cisneros on Monday evening.
--endit--
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ACLU answers Issue: Gun Control
"Why doesn't the ACLU support an individual's
unlimited right to keep and bear arms?"
BACKGROUND
The ACLU has often been criticized for "ignoring the Second Amendment" and
refusing to fight for the individual's right to own a gun or other
weapons. This issue, however, has not been ignored by the ACLU. The
national board has in fact debated and discussed the civil liberties
aspects of the Second Amendment many times.
We believe that the constitutional right to bear arms is primarily a
collective one, intended mainly to protect the right of the states to
maintain militias to assure their own freedom and security against the
central government. In today's world, that idea is somewhat anachronistic
and in any case would require weapons much more powerful than handguns or
hunting rifles. The ACLU therefore 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.
IN BRIEF
The national ACLU is neutral on the issue of gun control. We believe
that the Constitution contains no barriers to reasonable regulations of
gun ownership. If we can license and register cars, we can license and
register guns.
Most opponents of gun control concede that the Second Amendment
certainly does not guarantee an individual's right to own bazookas,
missiles or nuclear warheads. Yet these, like rifles, pistols and even
submachine guns, are arms.
The question therefore is not whether to restrict arms ownership, but
how much to restrict it. If that is a question left open by the
Constitution, then it is a question for Congress to decide.
ACLU POLICY
"The ACLU agrees with the Supreme Court's long-standing interpretation of
the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that
the individual's right to bear arms applies only to the preservation or
efficiency of a well-regulated militia. Except for lawful police and
military purposes, the possession of weapons by individuals is not
constitutionally protected. Therefore, there is no constitutional
impediment to the regulation of firearms." --Policy #47
ARGUMENTS, FACTS, QUOTES
"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."
--The Second Amendment to the Constitution
"Since the Second Amendment. . . applies only to the right of the State to
maintain a militia and not to the individual's right to bear arms, there
can be no serious claim to any express constitutional right to possess a
firearm."
--U.S. v. Warin (6th Circuit, 1976)
Unless the Constitution protects the individual's right to own all kinds
of arms, there is no principled way to oppose reasonable restrictions on
handguns, Uzis or semi-automatic rifles.
If indeed the Second Amendment provides an absolute, constitutional
protection for the right to bear arms in order to preserve the power of
the people to resist government tyranny, then it must allow individuals to
possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for
they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to
imagine any serious resistance to the military without such arms. Yet
few, if any, would argue that the Second Amendment gives individuals the
unlimited right to own any weapons they please. But as soon as we allow
governmental regulation of any weapons, we have broken the dam of
Constitutional protection. Once that dam is broken, we are not talking
about whether the government can constitutionally restrict arms, but
rather what constitutes a reasonable restriction.
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.
ACLU/Department of Public Education/September 23, 1991
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ftp://aclu.org |
mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"
ACLU answers Issue: Gun Control
"Why doesn't the ACLU support an individual's
unlimited right to keep and bear arms?"
BACKGROUND
The ACLU has often been criticized for "ignoring the Second Amendment" and
refusing to fight for the individual's right to own a gun or other
weapons. This issue, however, has not been ignored by the ACLU. The
national board has in fact debated and discussed the civil liberties
aspects of the Second Amendment many times.
We believe that the constitutional right to bear arms is primarily a
collective one, intended mainly to protect the right of the states to
maintain militias to assure their own freedom and security against the
central government. In today's world, that idea is somewhat anachronistic
and in any case would require weapons much more powerful than handguns or
hunting rifles. The ACLU therefore 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.
IN BRIEF
The national ACLU is neutral on the issue of gun control. We believe
that the Constitution contains no barriers to reasonable regulations of
gun ownership. If we can license and register cars, we can license and
register guns.
Most opponents of gun control concede that the Second Amendment
certainly does not guarantee an individual's right to own bazookas,
missiles or nuclear warheads. Yet these, like rifles, pistols and even
submachine guns, are arms.
The question therefore is not whether to restrict arms ownership, but
how much to restrict it. If that is a question left open by the
Constitution, then it is a question for Congress to decide.
ACLU POLICY
"The ACLU agrees with the Supreme Court's long-standing interpretation of
the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that
the individual's right to bear arms applies only to the preservation or
efficiency of a well-regulated militia. Except for lawful police and
military purposes, the possession of weapons by individuals is not
constitutionally protected. Therefore, there is no constitutional
impediment to the regulation of firearms." --Policy #47
ARGUMENTS, FACTS, QUOTES
"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."
--The Second Amendment to the Constitution
"Since the Second Amendment. . . applies only to the right of the State to
maintain a militia and not to the individual's right to bear arms, there
can be no serious claim to any express constitutional right to possess a
firearm."
--U.S. v. Warin (6th Circuit, 1976)
Unless the Constitution protects the individual's right to own all kinds
of arms, there is no principled way to oppose reasonable restrictions on
handguns, Uzis or semi-automatic rifles.
If indeed the Second Amendment provides an absolute, constitutional
protection for the right to bear arms in order to preserve the power of
the people to resist government tyranny, then it must allow individuals to
possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for
they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to
imagine any serious resistance to the military without such arms. Yet
few, if any, would argue that the Second Amendment gives individuals the
unlimited right to own any weapons they please. But as soon as we allow
governmental regulation of any weapons, we have broken the dam of
Constitutional protection. Once that dam is broken, we are not talking
about whether the government can constitutionally restrict arms, but
rather what constitutes a reasonable restriction.
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.
ACLU/Department of Public Education/September 23, 1991
=============================================================
ACLU Free Reading Room | A publications and information resource of the
gopher://aclu.org:6601 | American Civil Liberties Union National Office
ftp://aclu.org |
mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"
