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.

View comments (128)
Read the Terms of Use

Dr. Zee

"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.' ”

Agreed. But does this mean that the ACLU ALSO (finally) recognizes that the Second Amendment endorses the "natural right" of the INDIVIDUAL to possess firearms in common use at the time for personal defense, as the REST of the Heller and McDonald opinions found?

Or will the ACLU--at the first opportune moment--revert to its tired old opinion that the Second Amendment is only a "collective right" that guarantees that the respective states have the right to form and arm their own militias?

This "carefully crafted" "opinion" seems to be designed to try to keep everyone happy, implying--but not really meaning--that ACLU has suddenly decided that the Second Amendment is among "our most cherished civil liberties and constitutional rights."

The ACLU has NEVER recognized the Second Amendment as being among "our most cherished civil liberties and constitutional rights," the foregoing soothing, lawyerly gobbledygook notwithstanding.

I'll rejoin the ACLU when it can stand up straight and say outright that the Second Amendment endorses a natural right of the individual to own firearms in common use of the day, for his/her personal defense, albeit with some constitutionally-consistent restrictions.

Gun Owner

Would you consider a government issued license before you continue with your free speech? We want to be sure all those using the right to free speech are capable of speaking appropriately. Isn't that exactly what you suggested in this "Stance"? Would it be appropriate for the government to issue a license to those that would like to practice a religion? We wouldn't want those that are not qualified to be able to practice a religion would we?

Mouth Owner

You're right, the ability to express your opinion using words is exactly the same as the ability to use weapons to easily kill multiple people! There should be absolutely no limitations on the right to bear arms, I should be able to carry a glass bottle full of nerve gas next to my bag full of nitroglycerin and rusty nails wherever I go :D

Anonymous

That is not a relevant comparison. Making a speech does not kill anyone.

Micharl Del Vecchio

For the inevitable naysayers who will say these rights are equivalent, I have news for you...

Every Constitutional Right is equally applied to Americans. There is no opening the door to massive limits on one without doing so for the rest of them. To claim otherwise is ignorant of the reality we currently live in - where Voter ID laws are being pushed to discriminate against Americans as well. And where "Free Speech Zones" and bans on certain acts of protests are being pushed as well.

Each and every one of these becomes subject to extreme scrutiny because of the extreme precedent set upon the 2nd Amendment.

Anonymous

I would argue that most of the world's atrocities were initiated by speech.

Anonymous

Speach can kill!!! What about the wrongly accused people on death row?

Anonymous

Why don't we impose some reasonable restrictions on your free speech rights. After all the founding fathers didn't know about the internet and social media did they? Mabyey stronger laws against slander like dictators do in other countries so you can't critisize your elected officials without imprisonment or worse.

Anonymous

Those who want no restrictions on gun ownership often quote the language of the Second Amendment, "the right of the people to keep and bear arms shall not be infringed," but they never quote the preceding clause, "A well regulated militia being necessary to the security of a free state ..." Independent American citizens are not a "well regulated militia." The National Guard and other branches of our military reserves are "well regulated militia." Why hasn't the ACLU advocated the entire Second Amendment, not just a part of it. I call on the ACLU to bring suit in federal court to restrict gun ownership to our military reserve forces.

Gun Owner

Sorry but the amendments were added to the Constitution to limit the power of the government. Not limit the power of the citizens. They are referring as the populace as the militia as every man was considered to be militia, contrary to your thought of the National Guard as the "Militia"

Pages

Stay Informed