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ACLU on Heller & McDonald
Never mind the inconsistency with all its other positions, and despite two Supreme Court rulings to the contrary, ACLU still refuses to read the Second Amendment as reflecting an individual right.
It's drawn over 1,300 comments, mostly in opposition, and some amusing. ("How does an ACLU lawyer count to ten? 1, 3, 4, 5...")
Years back, Glenn Reynolds and Don Kates published a "thought experiment" on the Second Amendment. What if we assume the "collective right" approach is true, that the amendment was meant only to ensure that States could have militias to resist the Federal government? OK, so any State can create an organized militia free of Federal control. And arm it sufficiently to where it could resist the national military. Any person who joined such a militia has an unfettered right to full autos, artillery, military aircraft. Perhaps even nukes -- the Feds have them. I wonder how ACLU would regard the logical outcome of its position?
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I have heard in recent years, that the ACLU has well been forced to recognize the second amendment as an actual cival liberty. Reluctently although.
So far the Nevada, Arizona and South Carolina state ACLU chapters (that I know of) have come out for a personal civil right in line with Heller, in rebellion against the national org.
For all of 2012 I sat on the board of the Southern Arizona ACLU chapter.
I wonder if this view has anything to do with the fact that the story that the 1792 militia Act was never enforced was invented by a founding member of the ACLU (Walter Nellis). When their own approved historical data is in fact the creation of one of their founding father's, they will always be living in fantasyland.
If Hitler 2.0 planned to do all the bad things that Hitler 1.0 did, but promised unrestricted access to taxpayer funded abortions, the ACLU would be waving flags with swastikas.
"I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty."
- Nadine Strossen
(then) president of the ACLU
quoted in "Life, Libety, and the ACLU"
Reason. October 1994
No "thought experiment" re the collective model is needed. State militia laws can unquestionably can be pre-empted by federal militia law. The leading case is Houston v. Moore, which not incidentally precedes the "landmark" commerce-law preemption case Gibbons v. Ogden.
Ask any ACLU or other attorney what happens when a state law conflicts with a federal law. A lawyer's training is to immediately flag the case for federal preemption, and check the lawbooks.
The caselaw shows unambiguously that the 2nd Amendment has never protected the states from federal preemption of militia law. No court in a *militia* case has even seriously considered the 2nd Am as a protection of state law. Since at least 1820, the courts have consistently held that Congress can preempt state militia laws.
A state cannot enroll/arm citizens in the militia, if federal law excludes them from the militia. Ask an ACLU attorney what happens if federal law limits militia age to 18+, and the state wants to arm 17 year olds. Does the 2nd Amendment protect the power of the state to designate that person as militia?
Liberal and conservative lawyers will both say the state cannot do that in defiance of federal law, and that the 2nd Amendment is no protection of the state law. I.e. the 2nd Am does not preserve the power of the state to arm citizens as militia, nor limit the power of Congress to interfere with the state militia.
The Individual Right model is a colorable argument. Not iron-clad, but supportable.
The Collective Model is specious; it has no existence in militia caselaw. Its adherents insist that the 2nd Am is a feature of "militia" law, but they never even begin to describe militia law.
Worse, 2A advocates never even challenge the ACLU on militia law. 2A advocates are 100% invested in being on the defensive. 2A advocates always *defend* the Individual Model; they never force the ACLU et al. to the defensive by beating them over the head with militia caselaw.
I scrolled through to see the answer. It started back in 2008 and continued to pick up steam. Folks were continuing to add critical comments in 2009 and 2010.
February 11, 2010: "I was going to join until I learned of your misguided stance on the 2nd amendment."
July 17, 2010: "ACLU to merge with Flat Earth Society. Film at 11."
Then 2011 had only one comment. In the middle of 2012, the rants picked up again (who doesn't love a good pile-on?). And more in 2013.
And then on February 17, 2014: "So, you're saying that the ACLU is both completely nuts, and also completely historically ignorant?"
Shortly after the Boston marathon bombing, I received the following e-mail from the ACLU:
From: Anthony D. Romero, ACLU Action
Date: Thu, Apr 25, 2013
Subject: 95% of Americans AgreeWe are all greatly saddened by the tragedy of the Boston bombings, from the loss of life and physical injuries to the emotional toll it has taken on the nation.
That's why it's so troubling that some people are trying to draw a link between the tragedy in Boston and the issue of immigration reform. As members of Congress on both sides of the aisle have said, that is false and counterproductive.
I checked both my in-box and spam folder, and could not find the e-mail from the ACLU saying
it's so troubling that some people are trying to draw a link between the tragedy in Boston and the issue of tax protestors, the Tea Party, gun control, and other conservative and libertarian groups.
As regular readers of this blog are aware, before the immigrant Muslim brothers Tsarnaev were identified as suspects, the usual gang of suspects were on the airwaves blaming tax protestors, the Tea Party, gun owners, etc. They were Partying like it was 1995.
Nor could I find the e-mail they must have sent back in December 2012 saying that
We are all greatly saddened by the tragedy of the Sandy Hook school shooting, from the loss of life and physical injuries to the emotional toll it has taken on the nation.
That's why it's so troubling that some people are trying to draw a link between the tragedy in Newton and the issue of private firearms ownership.
If anybody knows Mr. Romero, please ask him what happened to those e-mails.
I see that ACLU posting is from July 1, 2008. Have they done something recently to re-emphasize their collectivist hearts?