The Hypocrisy of the
by Jeremy D. Blanks, Ph.D.
I consider myself to be a Constitutionalist and
a believer in Jeffersonian principles. Some may ask, what is a Constitutionalist
or Jeffersonian principles? Well, in general terms it means that I
strongly support the Constitution as the law of this land and especially the
Bill of Rights. Specifically, it means that I believe in individual
rights. There are numerous organizations out there that support and fight
every day for these rights. The National Rifle Association (NRA) is such a
group as is the American Civil Liberties Union (ACLU). The ACLU is well
known for its court, political, and media battles in support of 1st, 4th, 5th,
10th, etc. amendment rights. I am drawn to these organizations, due to my
beliefs, and I generally support their positions in defending and preserving our
rights from those that would limit or remove them.. However, I have become
concerned about the ACLU, which has decided that the 2nd Amendment is not worthy
of their support as are the other individual rights specifically listed in the
Bill of Rights.
The ACLU takes this odd position on the 2nd
Amendment for two primary reasons, along with a fall back stance. First,
they have decided that the term "the people" that is contained in the
2nd Amendment does not apply to "the people" as it does in all of the
other rights contained in the Bill of Rights. Instead, they take the
position that this is a collective right and can only be assigned to a militia
group, such as the National Guard, which means that Congress can limit or remove
gun ownership as they see fit. Secondly, they cite the 1939 Supreme Court
case of US. vs. Miller, as proof that the Supreme Court agrees with their
beliefs. And finally, they take the fall back position that even if their
first two reasons do not hold water, the 2nd is now outdated because the
founding fathers could not have envisioned the type of arms that are currently
available and the dangers of a few using firearms in criminal activity outweigh
the value of this right to society..
Let's first address the position of the ACLU
that the 2nd Amendment is a collective right rather than an individual one.
Their entire position rests on the assumption that the term "the
people" in the 2nd Amendment is different from the term "the
people" that is used everywhere else in the Constitution and throughout the
Bill of Rights. In further support of their position, the ACLU argues that
the term militia is made in reference to something like the National Guard.
Many people buy into these arguments without taking a close look at the 2nd
Amendment and other supporting documentation. However, if one takes the
time to only mildly explore the actual meanings here, they come to a very
For example, the only way to assume that
"the people" is a collective right in the 2nd Amendment is to apply
that very same definition to much if not all of the Constitution and Bill of
Rights. Of course, that would mean that rights such as freedom of speech,
press, etc. could be interpreted as collective rights rather than individual
ones and therefore subject to limitations and removal of such rights listed for
"the people" by Congress and other legislative bodies. Of
course, that’s exactly what the ACLU’s position is on the 2nd Amendment, but
in all other cases the ACLU does not support such a stance and has made it their
only goal to oppose such things.
How could the ACLU take such an odd position?
Well, maybe it’s that term “militia.” When it comes to the term
"militia" and this assumption by the ACLU, there is a significant body
of information, which clearly indicates that the term "militia" means
every able-bodied and law-abiding person. In addition, there are no quotes
or written documents from the founders that would even lead one to suspect
anything other than the definition commonly accepted by most constitutional
scholars, i.e. the militia is the people. If anything, there is a wide
collection of quotes that say just the opposite as compared to the ACLU's
assumption. A few of the major ones are as follows:
"I ask, who are the militia? They
consist now of the whole people, except a few public officers."
George Mason, Virginia's U.S. Constitution Ratification Convention, 1788.
"That the people have a right to keep
and bear arms; that a well regulated militia, composed of the body of the
people, trained to arms, is the proper, natural, and safe defense of a free
state." George Mason, Virginia ratification convention, 1788.
"What plan for the regulation of the
militia may be pursued by the national government is impossible to be
foreseen...Little more can reasonably be aimed at with the respect to the
people at large than to have them properly armed and equipped." James
Madison, Federalist No. 29.
"The said Constitution [shall] be never
construed to authorize Congress to infringe the just liberty of the press, or
the rights of conscience, or to prevent the people of the United States, who
are peaceable citizens, from keeping their own arms." Samuel Adams,
Massachusetts' U.S. Constitution ratification convention, 1788.
"Militias, when properly formed, are in
fact the people themselves and include all men capable of bearing arms."
Richard Henry Lee, Letters from The Federal Farmer, 1788.
"Who are the militia? Are they not
ourselves? Congress have no power to disarm the militia. Their
swords and every other terrible implement of the soldier, are the birthright
of an American...The unlimited power of the sword is not in the hands of
either the federal or state governments, but, where I trust in God it will
ever remain, in the hands of the people." Federal Gazette, June 18, 1789.
Clearly, the ACLU's position here is not
supported by any of the words of the founders nor is it supported when viewed
against the rest of the Constitution and Bill of Rights. Without a doubt,
one must conclude on this point that the 2nd Amendment is an individual right
and the ACLU is absolutely wrong.
The second stance by the ACLU--which involves
the 1939 Supreme Court case of U.S. vs. Miller--is equally flawed as their first
belief. This case is the only time the Supreme Court has had the
opportunity to directly rule on the constitutionality of federal firearm statues
during the 20th century. In this case, the court ruled that "in the
absence of any evidence that that the use or possession of a shotgun with a
barrel of less than eighteen inches has a reasonable relationship or use in a
militia, we cannot say that the 2nd Amendment guarantees the right of one to
keep such an instrument." In addition, the Court ruled that the
weapon in question was not any part of the ordinary military equipment or that
its use could contribute to the common defense. Clearly, for the keeping
and bearing of a firearm to be constitutionally protected, the firearm should be
a militia or military type weapon. Also, the Court noted that the militia
consisted of "all males physically capable of acting in concert for the
common defense. When called for service these men were expected to appear
bearing arms supplied by themselves and of the kind in common use at the
time." The court implicitly rejected the belief that only those
members of a specific militia are covered under the 2nd Amendment when it did
not discuss whether there should be evidence that the defendants met the
qualifications for inclusion in the militia. Clearly, they understood that
the militia was all of the people. The rulings from this case are
not supportive of the ACLU's position whatsoever, and in fact one could easily
make an argument that if challenged, the bans on certain types of semiautomatic
rifles, such as that included in the Brady Crime Bill and found in states such
as New Jersey and California, are unconstitutional and would be struck down if
challenged. As with the first position of the ACLU, one must conclude that
there is little or no evidence to support their position. In fact, one
would have to argue that the evidence supporting the opposite view presented by
2nd Amendment advocates is overwhelming.
The fallback position taken by the ACLU on the
2nd Amendment is possibly the most damaging to their overall position on
individual rights. The ACLU argues that even if their first two stances
are incorrect, as has been abundantly shown here and in other articles, the 2nd
Amendment is still subject to any restrictions set forth by Congress, because
the founders could not have foreseen the development of modern small arms and
the potential danger from the few that would cause harm with firearms outweigh
their overall value. Besides the fact that millions of crimes are
prevented each year because law-abiding citizens possess firearms, the problem
with this position is that the same argument applies to any of the individual
rights listed in the Bill of Rights. In fact, such an argument has been
used against the ACLU during court battles over the 1st Amendment. For
example, surely the founders could not have expected the development of hate
groups and their use of the 1st Amendment to further their divisive message.
The vast majority of Americans, myself included, find such positions to be
reprehensible and offensive, yet the ACLU has fought many battles to insure that
these people have the right to spread their message of hate. One could
easily argue that the damage caused by racism and hate in this country are
significant and in reality far more damaging on a much larger scale than
anything a shotgun in one's closet could ever cause.
Another example of where the ACLU has strongly
opposed any regulation on the 1st Amendment rights is the Internet.
Unquestionably, the founders could not have anticipated the development and
explosion of use of the Internet as we have today and will experience in the
coming decades. There are many great advantages to the Internet and we
have only begun to scratch the surface, but there is also a dark side to the
Internet. For example, there are negative Internet sites that range from
groups spreading their messages of hate and lies, to descriptions of bomb making
devices and how-to manuals, and finally to pornography. Does the existence
of a few negative sites out of the millions of good sites mean that the entire
Internet should be regulated and the 1st Amendment restricted? The ACLU
says no. As with their first two positions on the 2nd Amendment, the
ACLU’s fallback position again does not hold water. With any freedom,
there will always be those that abuse it and take advantage of the situation to
further their positions. There will always be new challenges to any right
and new ways to use it. Some good and some of a questionable nature.
This is true of the 2nd Amendment as well as the 1st and other amendments.
This is simply the price of freedom.
Having gone through this process of dissecting
the position of the ACLU on the 2nd Amendment, the question now becomes why do
they take such an odd stance that is counter to their supposed beliefs in
individual rights? Why do they not join the NRA and other 2nd Amendment
advocates in supporting all individual rights? I believe the answer comes
down to a couple of issues. First, the vast majority of the members and
leadership of the ACLU have never fired or maybe even held a firearm.
Their knowledge base around firearms has been developed through movies,
television, and the media. Therefore, many view firearms and firearm owners as a
threat. Furthering their perceived fear of firearms is a belief that
various firearm related activities, such as hunting, are unacceptable in a
civilized society. And lastly, their lack of contact with firearms and
knowledge around the subject makes it easy for them to believe that the rights
listed under the 2nd Amendment are, in the arena of individual rights,
unnecessary and even expendable.
Until the members and leadership of the ACLU
overcome their hypocritical desire to lessen the individual rights of those that
they don’t understand or agree with, they will never truly be viewed as an
organization interested in supporting individual rights. Rather, they will
be considered just another special interest group with a “holier than thou”
belief system when it comes to the 2nd Amendment.
Let’s all hope that the ACLU quickly realizes
the error of their ways on this topic and in turn joins the NRA in the fight for