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July 11, 2008

Might the ACLU be a strong supporter of all persons' gun rights?

I am intrigued and encouraged to see this story from the Las Vegas Sun about a local chapter of the ACLU seeing the light on Second Amendment rights.  Here are excerpts from the story

Everyone loves guns in Nevada.  Ducks Unlimited, the National Rifle Association, Republicans, the American Civil Liberties Union, the ... Wait. The ACLU?  The Nevada ACLU has declared its support for an individual’s right to bear arms, apparently making it the first state affiliate in the nation to buck the national organization’s position on the Second Amendment.

The state board of directors reached the decision this month after the U.S. Supreme Court ruled that the Second Amendment protects the rights of individuals to own handguns. “The Nevada ACLU respects the individual’s right to bear arms subject to constitutionally permissible regulations,” a statement on the organization’s Web site said.

“The ACLU of Nevada will defend this right as it defends other constitutional rights.” “This was the consensus,” said Allen Lichtenstein, general counsel for ACLU of Nevada. “There really wasn’t a lot of dissent.” ...

Gary Peck, executive director of the ACLU of Nevada, said the decision was not political, nor a slap at the national organization. He said the ACLU of Nevada often defends both conservative and liberal groups when, in its view, a constitutional right is being violated.  “This was a legal, constitutional decision for us,” he said.  “Right now, it’s an issue percolating in the ACLU universe. It should be no surprise that an issue that has sparked a lot of issues and debate outside the ACLU has sparked debate inside the ACLU.”...

Peck said he anticipates Nevadans will come to his group to protect their gun rights. “I have no doubt people will be making inquiries on their rights,” he said.  “I have no doubt we’ll be stepping to the plate on Second Amendment rights, if they come under assault by governments. In this state, of course, I don’t see any big rush by lawmakers.”

I sincerely hope that the ACLU will be actively "stepping to the plate" on behalf of felons looking to have Second Amendment rights restored long after they have paid their debt to society and on behalf of other less politically privileged individuals who often see their rights watered down for political expediency. 

As I have noted in many prior posts, in the Second Amendment arena, even vocal pro-gun advocates often seek motivated only to protect rights for people they like, not for those they don't.  The ACLU has a long and distinguished history of taking principled (and unpopular) positions in support of constitutional rights for everyone, and I hope that the ACLU of Nevada continues this in the context of the Second Amendment.  If they do, perhaps candidate of all political parties might again claim with pride that they are card-carrying members of the ACLU.

Some related posts (written both pre- and post-Heller):

July 11, 2008 at 12:48 PM | Permalink


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The ACLU’s position in the past has generally been not to take a position on this issue. Indeed, the ACLU rarely takes positions on the existence of fundamental rights without at least some authority that says that they *are* a fundamental right. Contrary to rhetoric aimed at the little people, until recently, there has been almost no authority explaining whether the 2d is an individual right or not. Now there is. So, it follows that the ACLU would consider it to be as robust as possible.

But, the ACLU has always steadfastly supported by gun-related issue that wasn’t based on the 2d (such as search and seizure issues relating to guns and First Amendment rights of gun nuts).

Anyway, with this in mind, I look forward to knee-jerk reactions from people who like to repeat soundbites from the ACLU, without actually knowing the ACLU’s positions (as stated in their briefs they post on the web). While these people are not real Americans (as a real American would never do such a thing) they are people, too.S

Posted by: S.crotus | Jul 11, 2008 1:24:07 PM

"apparently making it the first state affiliate in the nation to buck the national organization’s position on the Second Amendment."

What S.crotus said. The ACLU isn't bucking a previous position.

Posted by: George | Jul 11, 2008 3:00:49 PM

This is an incredibly surprising decision from the ACLU, however justice should exist for all citizens. There needs to be a curbing of violence in inner cities without throwing tons of people in jail, and trying to have the same gun control laws for rural and urban areas makes little sense.

Posted by: JT | Jul 11, 2008 5:19:24 PM

ACLU national's position (pre-Heller) was that gun ownership rights were a function of militia membership. However it was a topic of internal contention, and state affiliates were always allowed to chart their own course on the topic. The result largely depends on which individual people work there at the time. When I was Texas ACLU's Police Accountability Project Director, e.g., the group took up gun rights largely because a gun rights supporter held that job. After I left, except for publishing a report (pdf) I'd authored while I worked there, the issue fell off the state group's radar screen.

State by state, ACLU's past stances on gun rights are either nonexistent or all over the ideological map. I have no inside knowledge but would expect, as the first commenter predicted, that with Heller ascribing the status of "individual right" to gun ownership, the group will now (slowly, lurchingly) shift gears to embrace the notion, probably led by affiliates from the southern and western states.

Posted by: Gritsforbreakfast | Jul 12, 2008 8:59:44 AM

In Michigan, convicted felons can never get the right to possess a handgun restored. Under the present scheme, that seems to doom Heller arguments involving handguns, if the Heller "felon" exception holds up to further scrutiny. Ex-felons can get the right to possess rifles and shotguns restored. They have to wait until at least 5 years after they have served their maximum sentence, or been released from parole or probation. Then the applicant has to be approved for long-gun restoration by a board that consists of the prosecuting attorney, the county sheriff, and the state police, or their representatives. In 1975, the Michigan Supreme Court held a similar board, consisting of representatives of the Secretary of State, the Attorney General, and the sheriff or police chief of the county or city where the applicant resided, was not an impartial body to consider restoring a driver's license to a suspended driver. Crampton v. Secretary of State, 395 Mich. 347, 235 N.W.2d 352 (1975). I'm a defense attorney who's waiting for someone who's been rejected in his or her application to restore long-gun rights, to hire me to appeal that denial, to challenge the composition of the present board, and to make the arguments Heller implies.

Posted by: Greg Jones | Jul 12, 2008 3:44:47 PM

It strikes this prosecutor that the best argument post-Heller for continuing prohibitions on felon possession is that the restriction is based upon the same legal tradition which supports the loss of the right to vote and hold public office for felons. When a person is convicted of a felony he is in a legal sense partially cast out of society. In this case he is cast out of the very group from which the militia is formed.

Posted by: Alan O | Jul 12, 2008 9:30:46 PM

In this case he is cast out of the very group from which the militia is formed.

If this is true how do you explain the many felons currently serving in the armed services?

Posted by: BS | Jul 13, 2008 3:58:14 PM


Good point. Felons are of course not literally cast out, but they certainly marked, stigmatized, what have you by the conviction (legally and practically). In my view the militia is not the same as the national armed forces (look at Art. I, Section 8 and Art. II, Section 2). It isn't clear to me if post-Heller litigation will meaningfully explore the rationale behind loss of firearm rights for felons or will simply take Justice Scalia's statement of no effect on those laws at face value. Felon disenfranchisement existed in broad form when the second amendment was ratified - it surely was a part of the right to keep and bear arms that was not to be infringed under the amendment.

Interestingly, 18 USC sec. 925 says that the chapter "shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof." Regular army felon/soldiers appear to be in the clear with their duty weapons.

State laws may be inconsistent on having a carve out for armed forces (my state of Iowa has some ambiguities, for example) but felon/soldiers need not worry. 28 USC sec. 1442a allows removal to federal court of a prosecution of a member of the armed forces charged with "an act done under color of his office or status, or in respect to which he claims any right, title, or authority under a law of the United States respecting the armed forces thereof..." It would appear that the felon/soldier gets the benefit of the federal exception because the case, "shall proceed as if the cause had been originally commenced therein...

One this is for sure, Heller ended litigation on gun rights the way that Roe ended it on abortion.

Posted by: Alan O | Jul 13, 2008 9:43:12 PM

Good post Alan. When a felon is honorably discharged from the armed services does he/she automatically lose their second amendment rights?
Do we say to them thanks for putting your life on the line defending our country but now you won't be able to protect your own family with a firearm?

Posted by: BS | Jul 14, 2008 10:31:21 AM

Well, there are lots of bad people in the military, and I don't think that we as a society should be have to deal with them unless they are strictly supervised by a chain of command. Therefore, I see no problem with disarming these dangerous people when they are discharged.

Posted by: S.cotus | Jul 14, 2008 12:34:41 PM

The military has a process of weeding out the so-called bad people in the military it is called a dishonorable discharge. Believe it or not S.cotus you don't have to be a felon to get one of these. I have served with a few people who have been in trouble with the law (some felons). I have had nothing but positive experiences with them, maybe the military did them so good but none the less they should not have people like you calling them dangerous people after serving their country with honor. I would say without a doubt I would trust my life with the military felon that I served with before I would you.

Posted by: Colonel | Jul 14, 2008 1:44:43 PM

Colonel, I will continue to call these people dangerous. These people committed terrible crimes against the country and no amount of participation in the military will ever cure the harm they have done the country.

Peraps you might convince me if you are correct if you could lay down some bright line rules by which all felons can redeem themselves. For example, what would a serial rapist need to do to earn your respect?

Posted by: S.cotus | Jul 15, 2008 4:02:46 PM

S.cotus as usual you over exaggerate. The military does a back ground check looking for these violent crimes and excludes them from joining. Your shock value comments are getting old.

Posted by: BS | Jul 15, 2008 6:14:51 PM

BS, That isn’t quite true. Felons are not absolutely prohibited from joining. It is possible for felons to get a waiver to join. Recently more waivers are being granted, because, well, we need the soldiers.

Seeing that not only was I correct, but there seems to be agreement as to the underlying facts (though disagreement as to what to do about them), your assertion that I am trying to “shock” makes little sense.

Posted by: Scotus | Jul 17, 2008 7:25:57 PM

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