ACLU v. US Constitution
Despite DC v. Heller and a strong belief that all the other items in the Bill of Rights refer to individual rights, the ACLU's official stance is a failed exercise in reading comprehension:
The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.
There are many things wrong with this position. First, the collective rights premise has never had support from very many legal historians or scholars. The Heller decision is hardly a reinterpretation as there is plainly little if any stare decisis (previous court decisions) to refer to and there is disagreement amongst the circuits (specifically, the most reversed circuit in the world, the 9th Circuit, held the collective rights theory). Finally, it is clear that certain classes of weapons cannot be banned, specifically handguns, because we have a right to own them.
A reminder, from the court's decision:
The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.
I suspect the next real tests will be an incorporation and “assault weapons.” The ACLU seems to be putting itself on the wrong side of these issues as well.
Josh Poulson
Posted Thursday, Jul 3 2008 11:44 AM
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