So, what the Heller our friends at the ACLU going to do now?
One interesting question is what the ACLU is going to do with Heller.
Initial indications aren’t particularly promising for the second amendment crowd. The ACLU’s recent press release about developments this term clearly indicates where organizational priorities lie. The release describes Boumediene in glowing terms, along with background like
Habeas corpus has been regarded as a cornerstone of liberty and a check against the abuse of executive power since the Magna Carta in 1215. Even before the Bill of Rights, the framers regarded habeas corpus as so essential to the system of checks and balances that they included a provision in the Constitution prohibiting the “suspension” of habeas corpus except in rare and limited circumstances.
What about Heller? “By concluding that D.C.’s gun control law was unreasonable and thus invalid, the Court placed a constitutional limit on gun control legislation that had not existed prior to its decision in Heller. It is too early to know how much of a constitutional straitjacket the new rule will create.” Yeah, it’s pretty clear who the red-headed stepchild is in this household.
And this ambivalence is consistent with ACLU history — the ACLU has not been a second-amendment rights organization, historically. Instead, it’s taken a distinctly agnostic view. Interestingly, though, the ACLU has explicitly linked that agnostic approach to Miller. Thus, the stated grounds for the ACLU’s prior agnosticism no longer exist.
Really! Let’s take a look.
The ACLU’s existing explanation for second amendment neutrality is:
“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.” (ACLU Policy #47)
The website elaborates:
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. . . .
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.
Yep. One doesn’t have to be Mike O’Shea to notice that about the entire stated legal underpinning for ACLU neutrality has now been, um, blown to smithereens. Heller definitely protects something individual. (How that balances against government interest remains very fuzzy in a lot of places, as Mike notes, but there’s definitely an underlying, individual something.)
So, what happens next? Well, I’m not an ACLU officer, and I obviously can’t say what the organization will do one way or the other, going forward — but here are a few thoughts on it.
It seems theoretically plausible to suggest that, now that an individual right of some sort (subject to all sorts of further clarification, as Mike notes) has been recognized by the Court, that this right is now one which the ACLU should actively defend under its general mission of defending the Bill of Rights. This reasoning may become more compelling in the future, too, as future cases elaborate on the now-murky incorporation questions that Heller didn’t really answer.
On the other hand, the culture-wars aspect of the debate might suggest otherwise. And I wonder whether those pragmatic considerations will win out — whether the organization will take a different tack and hold, essentially, that Heller is wrong. That would be a nightmare of an argument to try to make, conceptually. But do ACLU volunteers really want to take up second amendment cases? Perhaps we’ll see.
Either way, I don’t think that relying on Miller is an option anymore. On the second amendment, the ACLU is going to have to either fish or cut bait.