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ACLU of Texas and Gun Rights:

I think it's too bad that the ACLU takes a collective rights view of the Second Amendment, and generally doesn't do much to defend state constitutional rights to bear arms. (As readers of this blog might realize, I don't think they're evil or even hypocritical for disagreeing with my interpretation of the Second Amendment, or even for declining to defend the clearly individual state constitutional rights. They're entitled to pick and choose what rights they think are most important to defend, just as the NRA and my two favorite conservative/libertarian public interest law firms, the Institute for Justice and the Center for Individual Rights, are entitled to do the same. I just think the ACLU is mistaken in its views.)

In any case, though, I'm pleased that the ACLU of Texas is taking a pro-right-to-self-defense view; Scott Henson, director of the police accountability project for the ACLU of Texas, testified this Spring -- on the ACLU of Texas's behalf -- in favor of a proposal to let law-abiding citizens carry guns in their cars. The law ultimately passed, and Mr. Henson is now trying to check how well it's being implemented, by filing state open records act requests for any instructions that government agencies are giving police officers about the new law. Sounds like good work to me.

Thales (mail) (www):
It was my understanding that the national ACLU never reached a consensus view of how to interpret the 2nd Amendment. When I interned at the Indiana ACLU I was told it had represented a gun owner under the Indiana constitution, which unambiguously confers an individual right to bear firearms. I think the individual chapters have discretion on litigation in this area.
1.17.2006 4:56pm
Jerry Mimsy (www):
What Eugene wrote was that the ACLU takes a collective rights view. According to the ACLU web site, this is true:

http://www.aclu.org//police/gen/14523res20020304.html

"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."
1.17.2006 5:01pm
Thales (mail) (www):
Yes, but scrolling down, the same link says this:

"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.

IN BRIEF
The national ACLU is neutral on the issue of gun control. We believe that the Constitution contains no barriers to reasonable regulations of gun ownership. If we can license and register cars, we can license and register guns.

Most opponents of gun control concede that the Second Amendment certainly does not guarantee an individual's right to own bazookas, missiles or nuclear warheads. Yet these, like rifles, pistols and even submachine guns, are arms.

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.

ACLU POLICY
"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." --Policy #47"

To me, all this says the ACLU's position on, say, an outright ban (as opposed to reasonable regulation) of nonmilitary personal firearms, is open. They might take an opposing position based on the 2nd Amendment. I don't think the position statement is a model of clarity.
1.17.2006 5:07pm
Starlight (mail):
Wrong. The ACLU does have a Second Amendment position. It believes that the amendment merely preserves a right of the <b>state</b> to organize "police and military" forces. Unlike every other "right of the people" in the BOR, this one belongs only to government.

"ACLU POLICY
"The ACLU agrees with ... 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." --Policy #47"
http://www.aclu.org/police/gen/14523res20020304.html
1.17.2006 5:22pm
Joshua (mail):
Prof. Volokh wrote:
In any case, though, I'm pleased that the ACLU of Texas is taking a pro-right-to-self-defense view...
What, the ACLU of Texas is actually coming down in favor of would-be criminals being effectively deprived of their lives without due process, not to mention receiving cruel and unusual punishment? I concur that they're entitled to pick and choose what rights to prioritize above others, but this seems way out of character for the ACLU.

(Before anyone flames me for valuing criminals' rights over the right to self-defense, I'm being semi-facetious here. My point here is that the ACLU has historically emphasized the rights of criminal defendants, and that their Texas chapter's stance on self-defense seems to fly in the face of that. Granted, a criminal killed in self-defense is not a defendant, as he is already dead, but killing him before trial or even arrest clearly obviates the purpose of granting him those rights. As far as I know, the idea of self-defense killing violating the dead person's due-process rights has never been tested in a U.S. court. If I'm wrong, OK, now go ahead and flame me.)
1.17.2006 5:30pm
Houston Lawyer:
The law in question only creates a presumption that a person is "travelling" and is therefore entitled to carry a concealed weapon. The Harris County DA has apparently taken the position that since the presumption is rebuttable the emphasis should be on rebutting the presumption. In other words, he doesn't like the law and will do everything in his power to eviserate it. Glad to see the ACLU on top of this one, creating a paper trail for the next legislative session where the issue can be re-addressed. Now we need to get a new DA.
1.17.2006 5:35pm
Sha_kri:
"I don't think they're evil or even hypocritical for disagreeing with my interpretation of the Second Amendment"

I do. Their actions means they are bias, which is a form of corruption. In addition, the ACLU is lying by not defending a clearly specified right (both at state and federal level) when they claim that they are defending the Bill of Rights. It is safe to say that these are all a form of evil, not to mention blatantly hypocritical.

And this applied regardless of your view of what the 2nd Amendment means. The ACLU interprets all amendments broadly and it just so happens to interpret the 2nd as narrowly as it can? Open your eyes.
1.17.2006 5:37pm
billb:
Eugene:

Any thoughts on where a Texan might find himself legally if he takes his now legally concealed weapon from inside his vehicle and uses it utside of said vehicle to defend himself or another? I.e., seeing a carjacking in progress two cars in front of him, our hypothetical Texan exists his vehicle, gun in hand, and shoots the assailant dead.

I know you're not an expert on Texas law, but I thought I'd throw it out there. I suppose the answer is the same as when a CHL holder brandishes or uses a weapon that is legally concealed.
1.17.2006 5:37pm
Steve P. (mail):

I do. Their actions means they are bias [sic], which is a form of corruption. In addition, the ACLU is lying by not defending a clearly specified right...

Woah! Bias is a form of corruption? Name an organization or individual that isn't biased, yourself included. We live in a very corrupt world.

The second argument here is the most popular one among conservatives -- the ACLU is lying through omission. Basically, they are an evil group because they are not proactive in a certain area. I'm not sure why this upsets people so much. I'd rather leave the 1st and 4th amendments to the ACLU and let the NRA pick up the 2nd. Additionally, the ACLU is well-known for putting forth effort in cases that are hard to find backing for. Any guns-rights case gets a lot of attention from both sides of the aisle, and there's no doubt the NRA will jump in. Why, then, should the ACLU spend its limited resources on such a case?

That's the nice argument. The reality (from what I see) is that the ACLU is comprised of a lot of lefties, and they're split on the 2nd amendment, so they want to punt it off to other groups. At least, that's the impression I've received, but I could be mistaken. I'm not sure that a non-profit handing off a political hot potato is necessarily a bad thing, and I'm guessing that it makes financial sense for them not to annoy the liberals, since a change in focus will likely not garner a significant amount of conservative support.
1.17.2006 6:25pm
Master Shake:

"I don't think they're evil or even hypocritical for disagreeing with my interpretation of the Second Amendment"

I do. Their actions means they are bias, which is a form of corruption.
I think we have a winner in the ACLU Derangement Syndrome contest.
1.17.2006 6:25pm
Steve P. (mail):
Oh my. Many thanks to Prof. Volokh for his 'Mr. Ed' post, which is much clearer on what I was trying to say that I was. I especially like the analogy.
1.17.2006 6:33pm
Houston Lawyer:
BillB

Most Texans aren't too concerned about criminal liability for using deadly force to protect themselves. As the saying goes, "better to be judged by 12 than carried by 6". They are more concerned about being prosecuted for the unlicensed possession of a concealed weapon. In the latter case, the costs far outweigh the immediate benefits.

I'm not aware of any cases in Texas where someone justifiably used a firearm to kill someone in self defense but was prosecuted for illegally carrying a concealed weapon. Wasn't that the effect of the Bernie Goetz case in NY?
1.17.2006 6:39pm
Fishbane (mail):
I do. Their actions means they are bias, which is a form of corruption.

I would comment on this, but I would be violating the Mr. Ed rule by not having anything unique to say.
1.17.2006 6:40pm
billb:
HouLaw: Thanks. That's more or less what I figured from my nearly 30 years of living in the Lone Star State. I suppose my question really should have been: "Any thoughts on what these DAs and CAs who are opposed to this new law might try to prosecute given their obvious disdain for it?"

Clearly jury nullification on this issue is likely here (or perceived to be), so conviction seems unlikely. I just wonder if we might see a rise in prosecutions.
1.17.2006 7:02pm
Sha_kri:
Steve: Ok...I should of said significant, self-aware bias is a form of corruption. Regardless, my statement still stands.
They are not lying through omission. Let me repost that link for you that Jerry posted.
http://www.aclu.org//police/gen/14523res20020304.html
And here is a quote from that link: "We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states..." The rest of your 2nd paragraph is a spin.
And you are playing spin doctor again in the third paragraph also. If they do not want to get involved in 2nd amendment issues and put it off on other groups, then they should own up to it. Of course, in case you missed the quote cited, they are taking the narrowest view they can possibly get away with on the 2nd amend.

"I think we have a winner in the ACLU Derangement Syndrome contest."
This issue needs to be addressed and it is not being done. If the ACLU wants to only defend selected rights established in the Bill of Rights, then it should own up to it.
1.17.2006 7:30pm
Neal Lang (mail):
Woah! Bias is a form of corruption?

bias, n.
1. A preference or an inclination, especially one that inhibits impartial judgment.
2. An unfair act or policy stemming from prejudice.
A statistical sampling or testing error caused by systematically favoring some outcomes over others.

Hmmm! I suppose only extent that you might consider that "prejudice" is corruption.
1.17.2006 8:25pm
Geoff (mail):
In addition, the ACLU is lying by not defending a clearly specified right (both at state and federal level) when they claim that they are defending the Bill of Rights.

The ACLU doesn't claim to defend the entire bill of rights.

From the ACLU website:

"The mission of the ACLU is to preserve all of these protections and guarantees:

* Your First Amendment rights-freedom of speech, association and assembly. Freedom of the press, and freedom of religion supported by the strict separation of church and state.
* Your right to equal protection under the law - equal treatment regardless of race, sex, religion or national origin.
* Your right to due process - fair treatment by the government whenever the loss of your liberty or property is at stake.
* Your right to privacy - freedom from unwarranted government intrusion into your personal and private affairs.

We work also to extend rights to segments of our population that have traditionally been denied their rights, including Native Americans and other people of color; lesbians, gay men, bisexuals and transgendered people; women; mental-health patients; prisoners; people with disabilities; and the poor."

From that, I take it that the ACLU is primarily concerned with the 1st, 4th, 5th, 14th, and 15th amendments. If they don't claim to try to defend all civil liberites, why fault them for not working on 2nd amendment cases?
1.17.2006 8:26pm
Neal Lang (mail):
Most opponents of gun control concede that the Second Amendment certainly does not guarantee an individual's right to own bazookas, missiles or nuclear warheads. Yet these, like rifles, pistols and even submachine guns, are arms.

ACLU POLICY
"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.

Query: Considering the current militia requirement that individual troops need to be able to defeat armored vehicles or fortified enemies, wouldn't bazookas, and handheld anti-tank missiles constitute the type of arms necessary "to the preservation or efficiency of a well-regulated militia"?
1.17.2006 8:45pm
therut (mail):
I fault them bacause since they pick and choose the outcome is one of distortion of the Constitution. Something they are well aware of. That is what some do not see or want to admit publically. The picking and choosing makes the entire outcome of their activist stance definately politically left. Same way people pick and choose out of the Bible to distort the meaning. Put that with the idea of a living Constitution and Lawyers and Judges who see the world through that view and you have a left leaning agenda. This has been their goal from day one of their Founding. I really am not surpised that Lawyers have a hard time seeing this as most are taught with the same bias. Once you have been properly indoctrinated it is very hard to see your own bias. Even if you do recognize it you start to feel your way is correct. Which eventually makes you a ideologue. Get it. AS I see it (which is my bias) the Constitution has been stepped on enough and is beyond repair by an echo chamber of activist lawyers to the point that the people it was written for have no say in what it means anymore. It has become a constitution for and by lawyers not the people. The only problem I see is alot of people are angry.
1.17.2006 8:52pm
Sha_kri:
"The ACLU doesn't claim to defend the entire bill of rights."

heh. Ok, my apologies...did not see that part as clearly as I should of. However, some state ACLU websites do claim to do so. And I can list many links where it is claimed that the ACLU defends the all of the Bill of Rights by many different people, including the ACLU itself. But those links do not carry as much weight as the formal ACLU home page.

So for now on, it should be stated that the ACLU's purpose is to protect selected rights.
1.17.2006 9:38pm
Sha_kri:
"We are nonprofit and nonpartisan"

Wouldn't only protecting selected rights make the ACLU a defacto partisan organization?
1.17.2006 10:05pm
Brian G (mail) (www):
You said:


I think it's too bad that the ACLU takes a collective rights view of the Second Amendment


Funny, although not your fault, considering in every other matter the ACLU stresses how independent each office is when one of them files yet another of their disgraceful lawsuits.
1.17.2006 10:24pm
Brutus:
Considering the current militia requirement that individual troops need to be able to defeat armored vehicles or fortified enemies, wouldn't bazookas, and handheld anti-tank missiles constitute the type of arms necessary "to the preservation or efficiency of a well-regulated militia"?

The whole line of thinking that you'd need something "more powerful" than small arms to resist the central government doesn't hold up. Plenty of insurgencies and resistance movements have done quite well with small arms alone. The Iraqis right now are causing us a world of aggravation with small arms plus some explosives and mortars, despite all our armored vehicles and aircraft.
1.18.2006 12:37am
Beerslurpy (mail) (www):
Miller didnt create the "relation to a well regulated militia" test. That was a misinterpretation created during subsequent lower court applications of miller. US v Rambo, US v Hale etc where the lower courts basically decided that the act of possession had to have a locus to the maintenance of a state military apparatus.

Miller ACTUALLY says that the test is one of whether the weapon itself may be used for a military purpose. After spelling out that the militia is "the whole people" traditionally armed "with weapons supplied by themselves" they state:


In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less that eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.


The right to possess a particular implement hinges upon whether that implement is useful in a military sense. This is essentially a straight copy of the reasoning from Aymette, in which the banning of concealed bowied knives was deemed to not infringe upon the right to keep and bear arms.

Note that the first inferior court to apply Miller explictly rejects this test as meaningless in light of evidence that nearly any weapon can be put to some military use. 1942, US V Cases 1st circuit


At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon.


And there goes the 2nd amendment.
1.18.2006 1:41am
Bruce Hayden (mail) (www):
Note the following:
We work also to extend rights to segments of our population that have traditionally been denied their rights, including Native Americans and other people of color; lesbians, gay men, bisexuals and transgendered people; women; mental-health patients; prisoners; people with disabilities; and the poor.
This clearly not part of the Bill or Rights, or, indeed, based on any other of the Amendments (arguably, the Due Process rights being protected are primarily 14th Amdt., and not 5th Amdt. DP rights).

One big complaint I have with the ACLU is that they put these supposed rights above the Bill of Rights on occasion. For more information, read Conspirator Bernstein's book.
1.18.2006 2:00am
Beerslurpy (mail) (www):
Well, many have argued that the ACLU has an agenda that isnt formulated along strictly legal lines. I beleive the adjective used was "fabian."
1.18.2006 8:12am
Geoff (mail):
Note the following:

We work also to extend rights to segments of our population that have traditionally been denied their rights, including Native Americans and other people of color; lesbians, gay men, bisexuals and transgendered people; women; mental-health patients; prisoners; people with disabilities; and the poor.

This clearly not part of the Bill or Rights, or, indeed, based on any other of the Amendments (arguably, the Due Process rights being protected are primarily 14th Amdt., and not 5th Amdt. DP rights).


It seems pretty obvious to me that this goal is based on the 14th (ensuring all citizens have the equal protection of the laws) and 15th (for racial groups)amendments. Then again, IANAL.
1.18.2006 9:16am
Joshua (mail):
Geoff wrote (and I added emphasis):
From the ACLU website:

"The mission of the ACLU is to preserve all of these protections and guarantees:

* Your First Amendment rights-freedom of speech, association and assembly. Freedom of the press, and freedom of religion supported by the strict separation of church and state.
* Your right to equal protection under the law - equal treatment regardless of race, sex, religion or national origin.
* Your right to due process - fair treatment by the government whenever the loss of your liberty or property is at stake.
* Your right to privacy - freedom from unwarranted government intrusion into your personal and private affairs.

So the ACLU purports to safeguard your right to due process when there's a risk to your liberty or property, but not to your life? OK, at least this would explain why the Texas ACLU is apparently unconcerned about criminals being denied their right to due process by being killed in self-defense with the blessing of the state (see my previous comment). But last time I checked the Fifth Amendment, all three of these things (life, liberty and property) are covered by the due process clause - and in any event, shouldn't safeguarding one's life have just a tad higher priority than safeguarding one's liberty or property?

The ACLU's priorities seem to get curiouser and curiouser the more they are examined.
1.18.2006 9:44am
Frank J. (mail) (www):
I'm just never going to understand how anyone serious can take a collective rights view of the 2nd Admendment. To the majority of Americans, they have no idea there is a debate about whether their is an individual right to bear arms since the statement "the right to bear arms shall not be infringed" is a pretty clear statement.

Maybe the ACLU stance (or non-stance) on the 2nd Admendment just reflects that they have other priorites, but it certainly makes it easier to dismiss them as a silly liberal interest group.
1.18.2006 11:08am
Monkberrymoon (mail):
The interesting thing about the Texas law is that it has caused a nice debate about the meaning of a legal "presumption" for an officer in the field. The clear intent of the statute (at least as stated by the author) was to prevent an officer arresting a non-CHL holder who has a gun in his car. But, as stated previously, DAs are telling officers to keep on enforcing the law as before (i.e., arresting non-CHL holders in possession) and let the courts sort out whether the defendant should be acquitted because he meets the presumptions.

Eugene has blogged before about this issue WRT arrests of someone who clearly acted in self-defense (and reached the conclusion that it would be an arrest without probable cause). This new statute appears to be similar - an officer shouldn't arrest someone if he appears to be not guilty of the offense (unlawful carrying of a weapon) based on the laundry list of presumptions (of innocence) noted in the statute. At any rate, it seems an arrest under this statute might open up an officer to a civil rights lawsuit (wrongful arrest).
1.18.2006 11:09am
Scott Henson (www):
First, thanks Eugene for the links and the kind words. As to the commenters' debate: The very first commenter was correct -- in practice ACLU's various affiliates take differing 2nd amendment stances, and several state affiliates have differed from the policy on the national website. In Texas for the last several years ACLU has supported the rights of legal gun owners more, perhaps, than some other affiliates.

That said, it'd be easy for an ACLUer to support the Texas law no matter what your view of the Second Amendment as a collective or individual right. Guns are legal property. Lots of people own guns in Texas, including me. To say your gun is legal in your home and legal at the gun range but not legal in your car between your home and the gun range defies common sense and criminalizes average behavior by law abiding people more than it restricts criminals. That's what the bill was designed to address.

This actually wasn't the only legislation last year in Texas where ACLU worked with the gun folks. They also helped us pass a bill (that was vetoed, sadly) that would have required police to obtain written or recorded consent to search private vehicles at traffic stops. That's because basically the only things police are searching for are drugs and guns.

It seems kind of silly to think of ACLU in black and white terms as good or evil, etc. -- it's a sprawling, vast organization that nearly everyone of any political stripe agrees with on some things and disagrees on others. I'm glad the NRA is there, too. There's room enough in this big ol' world for both of them.
1.18.2006 2:35pm
Sha_kri:
If the ACLU only defends rights which they have selected, then their interpretation of the 2nd amendment is irrelevant. With the aforementioned and with the ACLU picking up specialty issues such as the anti-death penalty stance (there is no right any where I know of that protects people from death for committing heinous crimes), what makes them a nonpartisan organization?
1.18.2006 5:49pm
S Crockett:
As a non-lawyer, I've always been curious how anyone or any body could infer a "right" to a "state". Is this not particularly obvious when one considers that the amendment in question is part of the Bill fo Rights, which as far as this non-legal eagle is concerned, were adopted to impress certain individual rights that the people were notedly unwilling to authorize or provide power to the state to severly regulate.

All or our rights are restricted to one degree or another and so should the peoples right to keep and bear arms (i.e., the Miller Test - machine guns, sawed-off shotguns, and their ilk whose prime purpose is meyhem.)

The arguement that "we the people don't need that 2nd amendment right anymore" because the state has taken care of that matter for us by taxing us and maintaining police forces and a Nat'l Guard seems narrow-minded in that could the state also take care of our right to a free press by publishing a newspaper. "You folks don't need that old, worn-out relic of a right to a free press - don't you worry about a thing, we, the state, have taken care of that for you."
1.18.2006 10:53pm
Geoff (mail):
If the ACLU only defends rights which they have selected, then their interpretation of the 2nd amendment is irrelevant. With the aforementioned and with the ACLU picking up specialty issues such as the anti-death penalty stance (there is no right any where I know of that protects people from death for committing heinous crimes), what makes them a nonpartisan organization?

Selecting only certain rights to defend doesn't make them partisan, it makes them selective.

Actually, taking a broad view of the definition of the word partisan, then yes, they are becasue they show fervent support for defending civil rights. But given this defination, there is no such thing as a nonpartisan political group, since the members of such groups are fervent supporters of some political interpretation or issue. Heck, why limit it to political groups? Any group is formed to support some entity, idea, or casue, so that means that every group, from the American Kennel Club on through the Friends of the Library to the ACLU and the John Birch Society, is partisan.

However, partisan, in today's climate, usually means that a group is unabasedly aligned with the Republicans or Democrats. The ACLU probably finds itself aligned with the Democrats more than the Republicans (not counting the Libertarina wing) on social issues, but as has repeatedly been pointed out the ACLU is happy to represent Republicans, Democrats, Christians, and Atheists if their constitutionally-protected rights of free speech, assembly, press, or due process are being infringed.

And, in the interests of full disclosure, I am not currently an ACLU member, but as soon as that first paycheck comes in I'm joining both them and the NRA. I will not be joining the American Kennel Club.
1.19.2006 11:37am