You all look like happy campers to me. Happy campers you are, happy campers you have been, and, as far as I am concerned, happy campers you will always be. -- Vice President Dan Quayle, to the American Samoans,
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The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one, existing only in the collective population of each state for the purpose of maintaining an effective state militia.
The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment 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.
Nor does the ACLU believe that there is a significant civil liberties value apart from the Second Amendment in an individual right to own or use firearms. Interests of privacy and self-expression may be involved in any individual's choice of activities or possessions, but these interests are attenuated where the activity, or the object sought to be possessed, is inherently dangerous to others. With respect to firearms, the ACLU believes that this quality of dangerousness justifies legal regulation which substantially restricts the individual's interest in freedom of choice (but see footnote 1)
However, particular federal or state laws on licensing, registration, prohibition or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions. For example, the enforcement process of systems of licensing, registration, or prohibition may threaten extensive invasions of privacy as owners are required to disclose details of ownership and information about their personal history, views, and associations. Furthermore, police enforcement of such schemes may encourage entrapment, illegal searches and other means which violate civil liberties.
The ACLU takes the position that any such legislation must be drafted bearing these problems in mind and seeking to minimize them.
(footnote 1 begins here) When the Board adopted the June 1979 policy, it was suggested that it was unclear as to whether or not the ACLU supported gun control as a civil liberties matter, or simply did not oppose government regulation on this issue. In order to clarify this question, the following sentence was added to paragraph three of the policy as a footnote. "It is the sense of this body, that the word 'justifies' in this policy means we will affirmatively support gun control legislation."
At the April 12-13, 1980 Board meeting, the policy's footnote was reconsidered. Several Board members believed that the statement was inconsistent with the rest of the policy because there was no civil liberties rationale within the policy for affirmative ACLU support of gun control legislation. The Board then moved to refer the policy to the Due Process Committee to refine and discuss further the rationale for affirmative ACLU support of gun control legislation.
At the June 23-24, 1982 Board meeting, the Due Process Committee recommended deletion of the footnote from the gun control policy. The Committee's recommendation was based on the fact that no acceptable civil liberties rationale could be developed for affirmative support of gun control legislation. The link between guns and the breakdown of civil liberties, the Committee suggested, contains too much of the approach to crime control. And crime control, the Committee said, includes measures violative of civil liberties. The possibility that a person who might be defending his or her self at home might be arrested for the use of a handgun is troubling. If we support gun control legislation, we are encouraging the police to search homes, cars, and persons.
The Due Process Committee suggested that the problem with the footnote was that it was indefensible on civil liberties grounds, and that it is not the ACLU's role to commit the ACLU to involve ourselves in social issues by finding a constitutional basis where there is none. Even though gun control is a desirable social objective, and it would be nice to find a civil liberties rationale for affirmative ACLU support of gun control legislation, the Committee noted that the ACLU has never supported particular remedies for particular crimes, and as such, we cannot support gun control legislation.
The Board approved the Committee's recommendation, and deleted the footnote from the existing policy, but left intact the basic policy which expressed the ACLU's views.
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