The ACLU has often been criticized for "ignoring the Second
Amendment" and refusing to fight for the individual's right
to own a gun or other weapons. This issue, however, has not been
ignored by the ACLU. The national board has in fact debated and
discussed the civil liberties aspects of the Second Amendment
We believe that the
constitutional right to bear arms is primarily a collective one,
intended mainly to protect the right of the states to maintain
militias to assure their own freedom and security against the
central government. In today's world, that idea is somewhat
anachronistic and in any case would require weapons much more
powerful than handguns or hunting rifles. The ACLU therefore
believes that the Second Amendment does not confer an unlimited
right upon individuals to own guns or other weapons nor does it
prohibit reasonable regulation of gun ownership, such as
licensing and registration.
The national ACLU is neutral on the issue of gun control. We
believe that the Constitution contains no barriers to reasonable
regulations of gun ownership. If we can license and register
cars, we can license and register guns.
Most opponents of
gun control concede that the Second Amendment certainly does not
guarantee an individual's right to own bazookas, missiles or
nuclear warheads. Yet these, like rifles, pistols and even
submachine guns, are arms.
therefore is not whether to restrict arms ownership, but how
much to restrict it. If that is a question left open by the
Constitution, then it is a question for Congress to decide.
"The ACLU agrees with the Supreme Court's long-standing
interpretation of the Second Amendment [as set forth in the 1939
case, U.S. v. Miller] that the individual's right to bear arms
applies only to the preservation or efficiency of a
well-regulated militia. Except for lawful police and military
purposes, the possession of weapons by individuals is not
constitutionally protected. Therefore, there is no
constitutional impediment to the regulation of firearms."
well regulated militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed."
The Second Amendment to the Constitution
Second Amendment. . . applies only to the right of the State to maintain
a militia and not to the individual's right to bear arms, there
can be no serious claim to any express constitutional right to
possess a firearm."
Warin (6th Circuit, 1976)
Constitution protects the individual's right to own all kinds of
arms, there is no principled way to oppose reasonable
restrictions on handguns, Uzis or semi-automatic rifles.
If indeed the Second
Amendment provides an absolute, constitutional protection for
the right to bear arms in order to preserve the power of the
people to resist government tyranny, then it must allow
individuals to possess bazookas, torpedoes, SCUD missiles and
even nuclear warheads, for they, like handguns, rifles and
M-16s, are arms. Moreover, it is hard to imagine any serious
resistance to the military without such arms. Yet few, if any,
would argue that the Second Amendment gives individuals the
unlimited right to own any weapons they please. But as soon as
we allow governmental regulation of any weapons, we have broken
the dam of Constitutional protection. Once that dam is broken,
we are not talking about whether the government can
constitutionally restrict arms, but rather what constitutes a
The 1939 case U.S.
v. Miller is the only modern case in which the Supreme Court has
addressed this issue. A unanimous Court ruled that the Second
Amendment must be interpreted as intending to guarantee the
states' rights to maintain and train a militia. "In the
absence of any evidence tending to show that possession or use
of a shotgun having a barrel of less than 18 inches in length at
this time has some reasonable relationship to the preservation
or efficiency of a well-regulated militia, we cannot say that
the Second Amendment guarantees the right to keep and bear such
an instrument," the Court said.
In subsequent years,
the Court has refused to address the issue. It routinely denies
cert. to almost all Second Amendment cases. In 1983, for
example, it let stand a 7th Circuit decision upholding an
ordinance in Morton Grove, Illinois, which banned possession of
handguns within its borders. The case, Quilici v. Morton Grove
695 F.2d 261 (7th Cir. 1982), cert. denied 464 U.S. 863 (1983),
is considered by many to be the most important modern gun
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