I was an NRA member from 1986 to 1991, after which I quit the NRA because it supports the Drug War and the death penalty. By then, however, my support for the ACLU's positions had been strengthened considerably by what I found when I checked the NRA's assertions about guns and crime. After all, what would you conclude if you learned that misuse of firearms is almost unheard of among the common citizens who legally carry concealed handguns in states with liberal gun laws? I concluded that the overwhelming majority of my fellow citizens can be trusted even with instruments of death at their fingertips, and can therefore decide whether to use marijuana (for example) without government intrusion.
I was told that the opposing piece will say that the ACLU should not support an individual right to keep and bear arms because (a) the Second Amendment protects this right only collectively, for members of a militia; (b) even if the Second Amendment did guarantee an individual right, the ACLU should not support it because the Founding Fathers did not foresee a situation like modern America's; and (c) the social costs of firearms ownership would outweigh this right. I also expect that the opposing piece will cite Supreme Court cases as ruling against an individual right.
I will argue that even were these assertions correct, the ACLU should nevertheless support an individual right to keep and bear arms. Making this argument would seem a formidable task, for if the Constitution, the Bill of Rights, the Founding Fathers, and the Supreme Court were all to deny this right, then I would seem to be out of luck. But anti-slavery activists had to argue from the same position.
Both the Constitution and the Founding Fathers supported slavery. The Supreme Court, too, weighted in against the slaves: its Dred Scott decision held that prohibiting slavery was a violation of the slaveholder’s property rights! And even social costs were thought to favor preserving slavery, as freeing the slaves within a conscionably short time undoubtedly would have disrupted White society, which was of course the only society that mattered to most citizens of the time.
I doubt that those reasons would have persuaded the ACLU, had it then existed, to not support abolition. Therefore, I believe all of us would concede that the ACLU could support an individual right to keep and bear arms even were all of the opposition’s assertions granted. I believe the case for doing so is as follows.
America has always experienced substantial oppression that went largely unnoticed because its various governments (Federal, state and local) are smarter than in most other countries. Instead of employing overt force to destroy social-justice movements, our governments suppress them by withdrawing police support and giving groups like the KKK a free hand. By such means, and aided by gun-control laws that selectively disarmed newly freed Blacks, the South suppressed civil-rights efforts after the Union Army left in the late 1860s. This tactic did not succeed in the 1960s in part because Blacks have enough firearms to keep the KKK (and its members in local law enforcement) from terrorizing them into submission before the Federal government stopped wringing its hands and intervened.
I wish that the ACLU could always prevent such situations through legal and legislative action, but it manifestly cannot. When your home is being torched by KKK members who wait outside for you with guns supplied by corrupt local police, the ACLU and the Federal courts are far away. If the police do not come to your aid, and you somehow survive the attack anyway, you will not even have the satisfaction of suing the police for negligence because courts have repeatedly ruled that the police cannot be held liable for failing to protect you.
In view of this situation, can we morally deny people the means to protect themselves? Even if it were true that a gun is usually more a danger than a protection to its owner, shouldn't we, as civil libertarians, support an individual's right to decide whether to own one for that purpose?
There is good reason to believe that the need to protect oneself against armed government proxies could spread. For example, even as you read this, energy and timber companies are despoiling Indian reservations and robbing them of resources. When traditional Indians have tried to keep their land, the government has given a free hand to thugs who were hired or manipulated into terrorizing them. As a result, many Indians on the Pine Ridge reservation in North Dakota were glad to own semiautomatic rifles for defense against the thugs, some of whom were said to be armed by the FBI. Knowing that such practices may even now be occurring, do we really want only the government to have guns?
Other ACLU efforts will not necessarily provide adequate protection in such cases. Freedom of the press will not protect the Indians when our media are increasingly owned by the very corporations that gain by making it easier to steal the Indians' resources. Unfortunately, people sometimes need the right to keep and bear arms in order to live long enough for the ACLU to help them. Such benefits of firearms are often overlooked when their social costs are considered.
In choosing not to argue extensively against the opposing piece's assertions, I did not concede that they are correct. Halbrook's That Every Man be Armed: The Evolution of a Constitutional Right shows that the Second Amendment does indeed guarantee an individual right. Similarly, there are reasons to doubt that net social costs of firearms outweigh an individual right to keep and bear arms. More to the point, assertions about social costs should make ACLU members uneasy. We support the rest of the Bill of Rights even though we know that violent criminals sometimes go green as a result; why, then, do we apply a cost-benefit standard to the Second Amendment? And should we really blame the social costs on guns, or are they more correctly attributable to violence stemming from social injustice and the Drug War?
I end by quoting a gun magazine's argument in favor of ending the Drug War: "The final victor in the timeless struggle between freedom and prohibition will likely be the contender whose overall program, right or wrong, is the most philosophically consistent. But as long as we support a prohibition on drugs while arguing against a prohibition on guns, the victor won't be us, and the Bill of Rights won't even be mentioned in our children's history books." I hope my fellow members will see our common ground with such authors, and will support an individual right to keep and bear arms.
- Jim Smith lives in Idaho Falls
Point: This is Not a Well-Regulated Militia
| Here are the two photos that were included as part
of this "unbiased" debate page. Sorry for the poor quality of the copies that I received from a state ACLU chapter. ACLU members are the only ones who can change the organization from within.  |
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