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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Gus

I'm again disapointed in the ACLU for shying away from defending a fundamental constitutional right. The position expressed above justifies the infringing of the second amendment on the basis of how the different proposed gun control measures violate other constitutional rights like due-process or ilegal searches. This is absurd. ACLU should protect all constitutional rights on their own merits and seek to preserve as many of them as posible.

Wilson Huhn

This is a very balanced and well-reasoned analysis of the constitutionality of various proposed regulations of firearms. The Supreme Court's decisions in Heller and McDonald are actually quite narrow, referring only to the people's right to have a handgun in their homes for purposes of self-defense. The ACLU should acknowledge that there is an inherent right to self-defense; and gun advocates should acknowledge that there are many common sense regulations we could adopt that are consistent with the right of self-defense. Our first priority should be to outlaw assault weapons like the AR-15. Such weapons are unnecessary to self-defense and they make mass murders possible.
It is not part of the mission of the ACLU to promote the adoption of gun control legislation, but it is incumbent upon the ACLU to advise the public about the constitutionality of such measures. This statement does that admirably.

Anonymous

The motivation for the 2nd Amendment has little to do with personal defense. Its motivation was to make sure the American people could always do what they had just done - resist and defeat a standing professional army that was being used by a tyrannical government to oppress them. In fact in US vs Miller SCOTUS rejected Miller's assertion that a short barreled shotgun was protected under the 2nd Amendment because such a gun was not a military weapon that would be used in Militia service or in common use at the time.

Anonymous

The AR-15 is not an "assault weapon".

Eris Caffee

I have long admired the ACLU, though I only joined after the last Presidential election. i don't regret joining, but this statement pains me. While I agree with some of what they say above, i absolutely disagree with them when they assert that bans on specific kinds of guns raises no Constitutional questions. Banning so called "assault weapons", for instance, would directly infringe on the right of people to effective defense, both self defense and national defense. It would also interfere with the ability of states to muster the militia, since people are expected to bring their own weapons to a muster.

Furthermore, the ACLU's position directly defies the Supreme Court's Heller decision which states that weapons in common use are specifically protected, and so called "assault weapons" are definitely in common use.

I will do what I can to change the ACLU's position from within, but in the meantime I'll also keep up my membership in the Second Amendment Foundation. I only wish there were a civil rights group dedicated to protecting *all* of my rights, and not just some of them.

Anonymous

"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."

Okay, so you take one line completely out of context from Heller to make your claim about your 'first category' of gun law. But that's idiotic. You do realize that the entire point of the Heller case, and the main point of the decision, was specifically that restricting a particular type of firearm, in this case handguns, is UNCONSTITUTIONAL. How can anyone who even remotely claims to have the slightest grasp of constitutional law read Heller and conclude that laws that restrict firearms by type "generally raise few, if any, civil liberties issues," when the whole point of the decision was to state, unequivocally, that they are the category of gun law *most* likely to raise the most serious form of civil liberty issue - a total violation of an enumerated constitutional right.

You might want to put your quote in its proper context, where SCOTUS also set a standard for which weapons people do have a right to keep and bear: specifically, any firearm that is "in common use for lawful purposes," a definition which every type of firearm that is being called for to be banned right now meets. The decision went on to say that all firearms are "dangerous" by design, and so this alone cannot be used as a criterion for restricting any given type. Instead, the state must show that the type they wish to regulate or restrict is *both* dangerous *and* unusual, as in not "in common usage for lawful purposes."

Given those quite clear standards explicitly stated in Heller, any law restricting citizens from keeping to bearing so-called 'assault weapons', for example, which are currently some of the most commonly owned firearms used for lawful purposes, would not only raise some civil liberties issues, it would be a direct violation of the 2nd Amendment as interpreted in the very decision you so dishonestly try to turn on its head to mean the very opposite of what it established.

Bill Hicks

"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."

Do you even know what the Heller and McDonald cases were about? In both, the government (DC and Illinois) was being sued for passing exactly the kind of law you claim "generally raise few, if any, civil liberties issues." In case you haven't read either decision, spoiler alert: the governments involved lost both cases - such laws were ruled unconstitutional, without even a level of scrutiny being invoked, because, as stated in Heller, they so blatantly violate the rights protected in the Constitution that they could never pass any level of scrutiny. I suggest you go back to law school. Better yet, maybe hush school English class, since you clearly can't read well enough to even notice that the very decision you claim as your authority says exactly the opposite of what you seem to think it does.

Anonymous

"...as research on brain development shows that young people’s impulse control differs from that of adults." Couldn't this point be used to restrict abortion access for teens or change age for driver's license or prevent enlistment in the military or voting?

Anonymous

"Raising the minimum age for all gun ownership to 21, currently the legal age for purchasing a handgun, also raises no civil liberties issues".

Does the ACLU also believe that raising the minimum age for an abortion to 21 would raise "no civil liberties issues"?

fred yenke

I tried to trade my firearm for another model and,my trade-in was confiscated by the gun store UNTIL the background check was completed. Afte5 five weeks, I cancelled the sale so now I have a Florida permit to carry a concealed weapon but, I am prohibited from buying one until the background check, (the same one I went through to get the concealed permit) is completed. I went through three background checks in the past six years and, still can't purchase a firearm in the State of Florida. I have never been charged with a felony or, spent any time incarcerated.
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