Oral arguments in the U.S. Supreme Court case New York State Rifle & Pistol Association v. Bruen are scheduled for November 3. The case challenges New York’s carry licensing regime, which grants unfettered discretion to government officials to determine whether a law-abiding citizen is allowed to carry outside the home for self-defense. In District of Columbia v. Heller (2008), the Court found that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.” The present case offers the Court the opportunity to affirm this right by ensuring that all law-abiding New Yorkers may carry outside the home.
The case has garnered significant attention, and with it a host of amicus briefs from a wide variety of interest groups. This includes a bizarre brief from the American Civil Liberties Union. In it, the purported critics of government power defend New York’s law, arguing that the government should be empowered to extinguish a central component of a law-abiding citizen’s Constitutional right to bear arms.
To justify their involvement in the case, the ACLU concocted a tortured theory that posits severe restrictions on the Second Amendment right are necessary for full enjoyment of First Amendment rights. According to the group,
This is a case about the Second Amendment, but its resolution also implicates fundamental First Amendment values—the freedoms of assembly, association, and speech. States have many justifications for regulating the public carrying of weapons, concealed or otherwise. But one especially important justification is that such restrictions facilitate civic engagement, by promoting safety and reducing the chances that the disagreements inevitable in a robust democracy do not lead to lethal violence.
Note that the NYSRPA case does not concern a government’s ability to restrict the carrying of firearms in certain sensitive places. The Heller decision noted that nothing in that opinion “should be taken to cast doubt on… laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” where the type of civic engagement the ACLU is supposedly concerned about might take place. Rather, the present case concerns New York’s ability to eliminate a law-abiding person’s ability to carry outside the home entirely.
Aside from the Second Amendment issues, the ACLU’s position runs counter to much of the group’s work. The notion of law enforcement officials doling out benefits to preferred individuals in an entirely discretionary manner should raise objections from civil liberties supporters. A coalition of defense attorney groups, including the Black Attorneys of Legal Aid, the Bronx Defenders, Brooklyn Defender Services, submitted a brief in support of NYSRPA which explained, “New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today.”
ACLU’s brief is disappointing for an organization that has come to the defense of gun owners when the Second Amendment right intersects with other important civil liberties. The brief is also concerning, as it is symptomatic of a recent shift at ACLU to put politics over principle.
Pulitzer Prize-winning journalist and stalwart civil libertarian Glenn Greenwald summarized ACLU’s recent abandonment of principle in a September 28 tweet, noting,
The real problem with ACLU is the same plaguing so many other institutions in media and politics. When Trump became the center of the universe for liberals, ACLU drowned in money by converting from a civil liberties org to a DNC #Resistance arm and is still addicted to that cash.
This view is backed up by ACLU’s own admissions. A 2018 New Yorker item explained how the group was “reinventing itself for the Trump era.” This included an increased emphasis on electoral politics.
Therefore, it’s understandable that some might get the impression that because the national Democratic machine is opposed to Second Amendment rights, the ACLU felt compelled to come up with some convoluted way to do its bidding.
The ACLU’s strained insistence that the Second Amendment must be ignored in order to preserve First Amendment rights is even more puzzling given the organization’s softening stance on free speech.
A June 6 New York Times article, titled “Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis,” reported on divisions in the organization over its role as an advocate for First Amendment rights. According to the item,
Its national and state staff members debate, often hotly, whether defense of speech conflicts with advocacy for a growing number of progressive causes, including voting rights, reparations, transgender rights and defunding the police.
The piece quoted First Amendment litigator and former Ohio ACLU board member David Goldberger as stating, “I got the sense it was more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle… Liberals are leaving the First Amendment behind.” Former ACLU Director Ira Glasser told the paper, “there’s only one A.C.L.U. that is a content-neutral defender of free speech. I fear we’re in danger of losing that.”
The paper also pointed out, “One hears markedly less from the A.C.L.U. about free speech nowadays. Its annual reports from 2017 to 2019 highlight its role as a leader in the resistance against President Donald J. Trump. But the words ‘First Amendment’ or ‘free speech’ cannot be found.”
So much of what should be the ACLU’s core mission dovetails with a robust exercise of Second Amendment rights. For instance, so-called “red flag” gun confiscation order schemes and attempts to deny gun purchases based on secret government watchlists denigrate the Fifth and Fourteenth Amendments’ right to due process under the law. Warrantless government spying and mass surveillance programs infringe on the Fourth Amendment right and impede the ability to exercise the Second Amendment right with adequate privacy. A legitimate understanding of First Amendment rights is necessary for gun owners to communicate and politically organize to redress government in the face of increasing institutional opposition.
It is NRA-ILA’s sincere hope that the ACLU will rediscover its commitment to Constitutional rights.