Newsgroups: soc.culture.usa,alt.politics.usa.constitution Subject: Re: Endless ACLU Arguments... (Was: Re: Church an Message-ID: <1993Aug16.184525.27307@husc14.harvard.edu> From: silvers3@husc8.harvard.edu (Jolyon Silversmith) Date: 16 Aug 93 18:45:24 EDT In article <1993Aug13.171609.27168@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU ( Frank Crary) writes: >The "free exercise" clause of the First Amendment. The ACLU has defended >this in some cases, but they apply don't adopt the same, as-broad-as-possible >construction they apply to interpreting, say, the freedom of speech. Nor >do they (as far as I know) pursue the matter with the same vigor they >do other provisions. I'm confused as to how you derive this conclusion. As I and other people have repetitively indicated, the ACLU has defended drug use and animal sacrifice as examples of free exercise, which by most people's standards I would think is a broad interpretation of freedom of religion. The reason the ACLU may pursue (or appear to pursue) the matter with less vigor than free speech is that aren't that many free exercise cases to pursue - laws repressing religion are not exactly common in this country, as opposed to laws that may interfere with free speech. And the ACLU has been vigorous in pursuing establishment of religion cases. >The "just compensation" clause of the Fifth Amendment is similarly >minimized, as is the Article One, Section Nine prohibition on laws >"impairing the obligation of contracts" (to the pre-1937 interpretation >this would prohibit most government economic regulation.) Again, I'm confused. Are you arguing that the government fails to provide "just compensation" to such a degree that there is an active civil liberties concern involved as opposed to occasional disputes over what a property is actually worth? And I'm completely baffled as to your concern about I.9. It does not address individual civil liberties in its modern interpretation, and the Lochner-derived notion of substantive due process has been dead for decades. Some jurists have speculated as to how and why the court shifted its emphasis to individual rights from limits on the government's economic powers, but I don't think there's a single jurist alive who even advocates a return to that interpretation of the Constitution. And the ACLU clearly advocates the individual rights approach. The ACLU generally focuses its efforts on casework and legislation. As far as I'm aware, the ACLU has not been approached or turned down cases such as you describe, and there has been no legislation pending (or needed) addressing such concerns (although the ACLU has been active in fighting RICO and civil forfeiture, which are slightly different matters). Due process, incorporating the concept of "just compensation," should be the essential concern. And the ACLU does advocate due process in eminent domain actions to assure a "just" outcome. Here are excerpts from one of the policy statements that might apply: ACLU Policy #251: Notice of Private Property Seizure Principles of due process require that adequate notice be given property owners whose land or other property will be involved in government action. By adequate notice is meant notification by the most direct means available to the government... Although the means of notification may vary with the circumstances, it is the responsibility of the government, as a matter of due process, to do all in its power to make its intentions known directly and personally to all interested parties in such manner as is most likely to result in actual notice. >>Unfortunately, I don't have the ACLU policy handbook any more, so I can't >>quote the position exactly - but anyone who's read the Constitution can see >>that its the only amendment in the Bill of Rights with a qualifier that doesn't >>explain under what circumstances the right applies. >That's neither my interpretation, nor (based on the debates surrounding >the Amendment's proposal and adoption) the intent. The initial clause >is a mandate for the government to make sure the militia is "well regulated" >and (arguably) an explanation of why the "right of the people to keep >and bear arms" may not be infringed. The debates in Congress show, it >was not intended to qualify or limit the second clause's protections. I should have been more clear. What I meant was that the Second Amendment is unique because the qualifier ISN'T in the text to explicitly narrow the scope of the right - as you in fact indicate. >>...Whatever you interpret the >>phrase "A well regulated Militia, being necessary to the security of a free >>state" to mean, the Second Amendment is therefore unique. >The meaning of the phrase, however, is critical to its interpretation. >The ACLU has adopted the view that it means the National Guard, and >not private citizens. This is demonstrably false, since the >Supreme Court has ruled that the National Guard is not the "militia" >refered to in the Constitution (Perpitch v. Department of Defense) >and that the "militia" of the Second Amendment includes "all males >physically capable of acting in concert for the common defense" >(US v. Miller.) This broad construction is supported by the both >federal laws (which define the "militia" as all males between 17 and 45 >years of age, and all females with military expereince) and by the >debates and writings of the framers. [Additional Discussion Deleted] I don't particularly want to argue this point since I'm not familiar with the case law (and other internet groups regularly rehash this issue). But I did go to the law library and look up the ACLU policy. This edition dates to 1986, but I don't think there have been any changes (although perhaps there has been debate) since then. ---------------- ACLU Policy #47: Gun Control The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one, existing only in the collective population of each state for the purpose of maintaining an effective state militia. The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment 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. Nor does the ACLU believe that there is a significant civil liberties value apart from the Second Amendment in an individual right to own or use firearms. Interests of privacy and self-expression may be involved in any individual's choice of activities or possessions, but these interests are attenuated where the activity, or the object sought to be possessed, is inherently dangerous to others. With respect to firearms, the ACLU believes that this quality of dangerousness justifies legal regulation which substantially restricts the individual's interest in freedom of choice (but see footnote 1) However, particular federal or state laws on licensing, registration, prohibition or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions. For example, the enforcement process of systems of licensing, registration, or prohibition may threaten extensive invasions of privacy as owners are required to disclose details of ownership and information about their personal history, views, and associations. Furthermore, police enforcement of such schemes may encourage entrapment, illegal searches and other means which violate civil liberties. The ACLU takes the position that any such legislation must be drafted bearing these problems in mind and seeking to minimize them. (footnote 1 begins here) When the Board adopted the June 1979 policy, it was suggested that it was unclear as to whether or not the ACLU supported gun control as a civil liberties matter, or simply did not oppose government regulation on this issue. In order to clarify this question, the following sentence was added to paragraph three of the policy as a footnote. "It is the sense of this body, that the word 'justifies' in this policy means we will affirmatively support gun control legislation." At the April 12-13, 1980 Board meeting, the policy's footnote was reconsidered. Several Board members believed that the statement was inconsistent with the rest of the policy because there was no civil liberties rationale within the policy for affirmative ACLU support of gun control legislation. The Board then moved to refer the policy to the Due Process Committee to refine and discuss further the rationale for affirmative ACLU support of gun control legislation. At the June 23-24, 1982 Board meeting, the Due Process Committee recommended deletion of the footnote from the gun control policy. The Committee's recommendation was based on the fact that no acceptable civil liberties rationale could be developed for affirmative support of gun control legislation. The link between guns and the breakdown of civil liberties, the Committee suggested, contains too much of the approach to crime control. And crime control, the Committee said, includes measures violative of civil liberties. The possibility that a person who might be defending his or her self at home might be arrested for the use of a handgun is troubling. If we support gun control legislation, we are encouraging the police to search homes, cars, and persons. The Due Process Committee suggested that the problem with the footnote was that it was indefensible on civil liberties grounds, and that it is not the ACLU's role to commit the ACLU to involve ourselves in social issues by finding a constitutional basis where there is none. Even though gun control is a desirable social objective, and it would be nice to find a civil liberties rationale for affirmative ACLU support of gun control legislation, the Committee noted that the ACLU has never supported particular remedies for particular crimes, and as such, we cannot support gun control legislation. The Board approved the Committee's recommendation, and deleted the footnote from the existing policy, but left intact the basic policy which expressed the ACLU's views. ---------------- What I find most impressive about this policy statement is that it has something to please and offend everyone. On the one hand, it doesn't find gun ownership to be a civil liberty. On the other, it finds gun control to also be unjustifiable on civil liberties grounds. It indicates that the ACLU does not find constitutional justifications when there are none. On the other hand, it expresses sympathy with the objectives of gun control. This policy statement certainly seems to have been put together by committee. :-) I think I agree with it in general, but it does trouble me that the ACLU's final policy position involved such convoluted logic. It also defines militia differently than you indicate the courts have, and I'm therefore not sure from where its definition is derived. Some sections also seem a bit unclear - I think that in one paragraph the policy refers to the ACLU position paper on crime control, which I didn't happen to make a copy of. I also am unsure whether the ACLU's concerns about the anti-civil liberty character of gun control laws would apply to across the board waiting periods or a police database check. >>...But I would also add >>that it is unlike any of the other rights the ACLU defends - free speech, free >>assembly, and so forth revolve around actions and behavior, around individual >>autonomy. The Second Amendment is different, and regardless of the politics >>surrounding gun ownership, support or denial of it involves principles that >>don't carry over well to other areas of civil liberties. >I'm afraid I don't see any difference at all. The Second Amendment >revolves around the ability of people to defend themselves and their >communities from violent threats. That's certainly about "actions >and behavior" and "individual autonomy." (If you insist on emphasizing >the collective aspect of people defending their communities, remember >that similar collective action is inherent to the freedom of assembly.) But that's an interpretation of the amendment, not the surface text (although that doesn't mean it's invalid, I'll admit). The text of the first amendment explicitly addresses assembly, speech, the exercise of religion, etc; The text of the second amendment addresses the ownership of firearms for a purpose - it doesn't guarantee ownership per se, nor security per se. I don't want to second guess the ACLU's logic (or lack thereof, you might choose to argue) but it still looks to me that the second amendment requires an additional level of analysis, and is as such not so clearly definable as a civil liberty. It is also not the same as freedom of assembly, I would add, because assembly is guaranteed unconditionally and firearm ownership is not - individual ownership does not necessarily produce a safer, or even an as-safe community. >But my objections to ACLU policy go beyond the details of interpreting >the Second Amendment to the basic philosophy behind the interpretation. >In the case of some rights, the ACLU (apparently) trys to extend >the constitutional protections as fas as possible, to include any >rights that might, possibly be covered. and argue for the broadist >possible construction of the Constitution. As a erring-on-the-side-of- >caution/liberty attitude, I agree with this completely. But as >soon as they look at a right their members (seem to) disapprove of, >this broad, open-minded attitude vanishes, and the ACLU applies >the narrowest possible interpretation thereby minimizing the >Constitutional protection as much as possible. I'll admit that this has sometimes occurred (ie, the ACLU suspending its policy defining the retrial of a state case by the federal courts as double jeopardy during the trial of the police officers accused/convicted of beating Rodney King). But I'm don't think its as pervasive as you assert, or at least to point where it's hurt the organization (yet...). Although the ACLU has debated hate speech and other contemporary issues that pit the cause of "civil rights" against that of "civil liberties," the ACLU has not yet reversed a policy for that reason. The ACLU, as I've noted before, has been willing to risk losing membership in order to support a principle (the most notable example being the Nazis in Skokie again). And now that I've read the ACLU position on gun control, I wouldn't say that the ACLU has minimized the protection "as much as possible." You may be familiar with a local or national example that I'm not, but other than the example of the second amendment (which, as you can see, I don't find to be an overpowering argument), I'm hard pressed to think of a good example to support your assertion. -- Jolyon ("Jol") Silversmith______________________________________________________ Lowell House R-34 Proctor: Harvard Summer School Secondary Program Cambridge, MA 02138 Former Director: Civil Liberties Union of Harvard silvers3@husc.harvard.edu Circulation/Publicity Manager: Lighthouse Magazine