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Gun News Daily Why the ACLU is Wrong about the Second Amendment By William Lolli CalNRA Contributing Editor Recently, a friend introduced me to the American Civil Liberties Union web page for the southern region of California, at http://www.aclu-sc.org. My friend who is ambivalent towards guns and gun ownership sited all of the logic presented by the web site in the Bill of Rights section. He particularly pointed out the ACLU's stand on the 2nd Amendment and how it was "clearly" not an individual right.I read through the 2nd Amendment section of the page and was struck by the liberal sophistry of the ACLU's stand regarding the right to bear arms. "Clearly" the ACLU's distortions of history and the 2nd Amendment were obvious to me. I began to point out the flaws to my friend: On an introductory note, I found it most interesting that the ACLU, in it's web page, warns the reader to not parse an Amendment when reading it to derive legal and philosophical meaning. This is a valid warning, since the interpretation of any writing naturally begins with a contextual understanding originating from the intent of the author(s). Yet this is the first principle of interpretation that they violate themselves. For example, in their support of separating church and state, the ACLU parses the 1st Amendment with consistent exactitude, ignoring the intent of the Founders. In the 1st Amendment's first sentence: "Congress shall make no law respecting an establishment of religion," they conveniently forget to allow for the existence of the second phrase: "or prohibiting the free exercise thereof". Upon this platform interpretation they have successfully pursued a course of systematic logic in the courts, strategically and masterfully using liberal judges to adjudicate the removal of any practice of religion in the public purview. Because of this, the free exercise of religion has been in practice prohibited; and thusly a basic human right has been denied us all. In the same manner, the ACLU parses the 2nd Amendment, making the first two conditional phrases superior: "A well-regulated militia, being necessary to the security of a free state," while ignoring or down-playing the remaining: "the right of the people to keep and bear arms shall not be infringed." In their arguments against the positions of the NRA, they accuse the NRA of overemphasizing the "right of the people" part. This is ironically interesting since, in most cases, the ACLU is the defacto champion of radical individual rights. Continuing through their web page on the 2nd Amendment, they continually try to establish that there is a mountain of "Constitutional Scholars and experts" that hold that the RKBA is a state power. However, these Constitutional Scholars (of which they name none) are missing in action. They also claim that case law is on their side. Yet, the fact is that there have been extremely few 2nd Amendment Supreme Court decisions at all, in this century. All of the Supreme Court decisions of the 19th century, as well as the 18th century, sided with the NRA- and common-law interpretations of the RKBA. The interpretation of the Right also sided with most of the original 13 colonies' individual state constitutions, which codified and restated the individual right to bear arms. The most blatant distortion of facts is their use of the 20th century's United States vs. Miller case, where they misrepresent the Supreme Court judges' majority decision. Regarding Miller, they state: "The most important Supreme Court Second Amendment case, U.S. v. Miller, was decided in 1939. It involved two men who illegally shipped a sawed-off shotgun from Oklahoma to Arkansas, then claimed the Second Amendment prohibited the federal government from prosecuting them. "The court emphatically disagreed, ruling that the Second Amendment had the "obvious purpose" of creating state militias, not of authorizing individual gun ownership." NOT TRUE. The court held that the sawed-off shotgun was not a viable weapon for use in a militia, which is necessary for the security of a free state. The court said nothing of any judgement not authorizing-- nor making any kind of blanket statement denying-- individual gun ownership. The ruling was specific to the military use of a sawed-off shotgun. [For more information on United States vs. Miller: See United States v. Miller, 26 F. Supp. 1002 (W.D.Arkansas1939). Judge Ragon's published ruling covers about one half-page. That ruling was appealed by government prosecutors. Those prosecutors then "had their way" because neither Miller or Layton, who both had disappeared, presented their side of the issue to the Supreme Court. The Supreme Court ruled as follows: "in the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v State of Tennessee 2 Humph., Tenn., 154, 158] What the ACLU fails to point out is what the court does assert: that there is a Second Amendment guarantee to allow individuals the right to keep and bear arms other than this particular instrument. And why? For what purpose is there a right to keep and bear arms? The court said, "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense"; the implication being that if the instrument was part of military equipment or could contribute to the common defense, then the firearm would fall within the bounds of an instrument that the 2nd Amendment would protect as being "necessary for the security of a free state". The ACLU web site argues further that military styled "assault" weapons are clearly not covered by the Amendment. Any reasonable reading of the Amendment and the Miller case would conclude that military-styled weapons are the best candidates for 2nd Amendment protections. The ACLU asserts that military-styled assault weapons, and indeed all firearms, are for militias-defined as police and military only, and not for the average citizen. To justify this position the ACLU web page describes the historical and legal de-evolving of the Colonial / State militias, originally existing as a force by which the States could protect themselves from an oppressive Federalist Power; into what they have now become: the National Guard, which can respond to the command of both the state or of the federal authority. If this logical progression of militia-to-National-Guard as the ACLU asserts is true-- then where did the "right" to resist tyranny go? Did not the Founders in the Bill of Rights desire to preserve this specific, natural-right to resist tyranny? Most scholars and the ordinary American would think so. If the "right to resist" was preserved without the "means to resist", then of what value is the right? Similarly, if the right of free speech is preserved, yet the printing presses, Internet, and all media are all controlled; of what value is free speech? No. The Founders knew that both rights, and the means to preserve them, must be preserved. Notice that in the explanation for the existence of the National Guard, the ACLU does not say that the 2nd Amendment as an individual liberty never existed; just that it has "changed" into non-existence, and therefore no one has the right to keep or bear arms any longer. And yet--- that is exactly what the 2nd Amendment says-- that we do have the right to keep and bear arms. Liberty cannot be preserved with words. The ACLU obviously missed the lessons of the Revolution, the Civil War, World War 1, World War 2, and must be continually blind to the pages of the daily newspaper. My friend is still thinking about his position regarding guns. But one thing is certain: he now understands that the Bill of Rights was written by the Founders intentionally, so that individual freedoms and the means to preserve them, may never be taken away by an oppressive governmental power.
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