The ACLU's Position on Gun Control

This past weekend, hundreds of thousands of protestors from around the country took to the streets to demand action against gun violence. The movement has been energized by young people who turned out en masse in response to the horrific shooting in Parkland, Florida, in which 17 people — most of them teenagers — lost their lives. We applaud the many students who have exercised their speech rights to seek change. This moment calls on us to act not only to ensure that massacres like Parkland do not recur but to end the everyday gun violence that takes exponentially more lives from our communities. It also demands that we do so in a manner consistent with our most cherished civil liberties and constitutional rights.

Lawmakers across the country are currently considering a range of gun control measures. The American Civil Liberties Union firmly believes that legislatures can, consistent with the Constitution, impose reasonable limits on firearms sale, ownership, and use, without raising civil liberties concerns. We recognize, as the Supreme Court has stated, that the Constitution does not confer a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” But some proposed reforms encroach unnecessarily on civil liberties.

When analyzing gun control measures from a civil liberties perspective, we place them into one of three categories. First are laws that regulate or restrict particular types of guns or ammunition, regardless of the purchaser. These sorts of regulations generally raise few, if any, civil liberties issues. Second are proposals that regulate how people acquire guns, again regardless of the identity of the purchaser. These sorts of regulations may raise due process and privacy concerns, but can, if carefully crafted, respect civil liberties. Third are measures that restrict categories of purchasers — such as immigrants or people with mental disabilities — from owning or buying a gun. These sorts of provisions too often are not evidence-based, reinforce negative stereotypes, and raise significant equal protection, due process, and privacy issues.

Many of the options now being considered raise no civil liberties concerns. That includes bans on assault weapons, high-capacity magazines, and bump stocks. Raising the minimum age for all gun ownership to 21, currently the legal age for purchasing a handgun, also raises no civil liberties issues, as research on brain development shows that young people’s impulse control differs from that of adults.

So-called “red flag laws,” which provide for protective orders to remove guns from people who pose a significant risk to themselves or others, can also be a reasonable way to further public safety. To be constitutional, however, they must at a minimum have clear, nondiscriminatory criteria for defining persons as dangerous and a fair process for those affected to object and be heard by a court.

Other gun control measures may also be justified, such as laws that keep guns out of sensitive places like schools and government buildings; requirements that guns include smart technologies (like password protection) that ensure that only the lawful owner of the gun may use it; and requirements that gun owners first obtain a permit, much like a driver’s license, establishing that they know how to use guns safely and responsibly. There would also be no constitutional bar to lifting the existing limits on Center for Disease Control-funded research into guns and gun violence.

Extending background checks, which cover federally licensed gun stores, to gun shows and other unlicensed transactions, is also a reasonable reform. There is no civil liberties justification for the “gun show loophole.” We do not object to universal background checks if the databases on which they rely are accurate, secure, and respect privacy.

But the categories of people that federal law currently prohibits from possessing or purchasing a gun are overbroad, not reasonably related to the state’s interest in public safety, and raise significant equal protection and due process concerns. Any number of the categories, for example, require no proof of dangerousness, and they often serve to further bias. For example, the list of those barred includes: anyone convicted of a crime punishable by imprisonment for more than a year, whether or not the crime has any connection to violence; people with mental disabilities and many noncitizens who have not been shown to be dangerous in any way; and those who have used substances on the federal controlled substance list, including marijuana in states in which it is legal.

Other proposed gun regulations also raise civil liberties concerns. The proposal to ban individuals listed on the No-Fly List from purchasing weapons, for example, is constitutionally problematic, because that list lacks basic due process protections and its standards are unconstitutionally vague.

Proposals to arm teachers and install metal detectors in schools also raise significant civil liberties implications. Introducing more guns to schools will not make them safer and may especially endanger children of color, who already bear the brunt of teachers and administrators’ racial biases. The solution to gun violence is not more guns, but less.

The Supreme Court has said that the Constitution permits reasonable regulations of firearms in the interest of public safety. We agree. But those regulations can and should be crafted to respect fundamental rights to equal protection, due process, privacy, and freedom from unlawful searches. Lawmakers should have the moral courage to act and to do so consistent with our most cherished liberties.

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Kris

I was wondering if there is any in-depth research to back up the statement: “...Introducing more guns to schools will not make them safer and may especially endanger children of color, who already bear the brunt of teachers and administrators’ racial biases...”
This statement sounds like an opinion held by people who are biased in favor of gun control. Which court cases have established that all teachers and school administrators are racially biased?

Richard Lutz

"Many of the options now being considered raise no civil liberties concerns. That includes bans on assault weapons, high-capacity magazines". Seems the ACLU thinks only agents of the State should possess the practical means of defense against the.. um... err... State?

Anonymous

These new laws amount to the criminalization of mental illness and make a mockery of due process. This is not going to end well for those who are "accused" of being mentally ill. We are heading toward some very dark times.

Beck

This position statement is a page right out of the anti-gun handbook. There is nothing new here. Just the same worn and tired ant-gun propaganda that's been around for decades. The ACLU is part of the cult of the left... as deluded and dangerous as any dogmatic religious based cult could be.

Terms like "assault weapons" and "high-capacity magazines" is all I needed to see to know the author knows nothing about firearms. These are buzz terms that anti-gun groups mindlessly invoke without really knowing what they mean. What makes a firearm an assault weapon? What is high capacity? How many rounds exactly. Some state laws limited magazines to 15 rounds before later limiting them to 10 rounds. When will 5 rounds be two many?

Anonymous

This is difficult issue to address because of the fact that it is embroiled in controversy with opposing sides that are not too eager to listen to each other. Louise Melling, you do good job of outlining this while trying to give both sides a voice (of course not it's not going to please everyone, political dialog rarely does). It's really important that we as a country keep on talking about gun control, civil liberties guaranteed by the second amendment, mass shootings, and the right of the people to self defense. I do think there is common ground to be found; no one (sane) person wants kids to be shot in school, I as a college student don't want to die before I can give this world everything I know I am capable of. The controversy comes in when we talk about how to achieve this. Any way you look at this issue, vilifying the opposing side is simply not productive. People are still dying every day because of gun violence whether or not you have denounced the radical right or the radical left: doing so actually accomplishes very little. We owe it to our kids to be the change we want to see in our country, and be a real change rather than a divided mess of squabbling and polarized voices.
We owe it to our kids to make sure they can go to school without being afraid they will be the next victims of a shooting.
You owe it to me.

Johnnysize

Old enough to go to war is old enough to buy a gun.

Bob

"The solution to gun violence is not more guns, but less" seems to be a pretty bold statement to not be backed up by any science that I am aware of. I did not realize that we had proved a causation between the relative volume of firearms available and the prevalence of gun violence. That being said, the NRA and gun lobby has done an exceptional job at obfuscating and preventing any federal research funding into gun violence, and we should never run away from gaining knowledge on the subject.

Anonymous

"First are laws that regulate or restrict particular types of guns or ammunition, regardless of the purchaser. These sorts of regulations generally raise few, if any, civil liberties issues. "

This statement is problematic and demonstrates a lack of knowledge about the intent of the writers of the Second Amendment. How can one ensure the security of a free state with a single-shot, rimfire handgun? You can't. Further, how can someone preserve their own natural right to self-defence with a single-shot or manual-action firearm? I presume the ACLU's position is that nothing this restrictive has been proposed yet in the US, so my arguments are moot. Fair enough. But, nowhere in the above statement is an acknowledgement of the natural right to defend oneself and one's family with (trigger warning) deadly force if it is reasonable under the circumstances. There is no acknowledgement of the tradition of firearms ownership in furtherance of this purpose and there is no acknowledgement that people do actually defend their lives by presenting firearms, or, less often, discharging them. The ACLU seems eager to comport with Democratic Party talking points on gun control and out of touch with the reality of natural rights on this issue. That said, I do give some credit for at least mentioning that a no-fly list gun ban would be very problematic.

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