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
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