The ACLU has decided to once again intervene in a Supreme Court case. This time, though, it sided with the government in opposition to one of the enumerated rights enshrined in the Constitution.
The civil rights group filed a brief in the Court’s upcoming concealed-carry case. The crux of its argument is carrying guns in public is not only unprotected by the Second Amendment; it actually infringes on the First Amendment.
“This is a case about the Second Amendment, but its resolution also implicates fundamental First Amendment values—the freedoms of assembly, association, and speech,” the group said in its filing. “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. Accordingly, in assessing the validity of New York’s regulation of the carrying of concealed weapons in public, the Court should give due regard to the state’s important interest in facilitating a wideopen public debate.”
The ACLU is arguing that allowing New York officials complete discretion over who does and does not get to exercise their Second Amendment right is the proper course of action. It is saying the public bearing arms is inherently a threat to the public’s ability to speak freely.
The group goes so far as to argue there should be absolutely no limit to the government’s power to restrict gun carry.
“Because any constitutional rule prohibiting states from restricting the carriage of guns in public would pose substantial risks to the fulsome exercise of rights and liberties essential to self-government,” the ACLU said, “and in particular to freedoms of assembly, association, and speech, the proper resolution of this case is a matter of substantial interest to the ACLU, the NYCLU, and their members.”
Currently, 42 states plus the District of Columbia have gun-carry laws that do not give government officials discretion in who can obtain permits. The ACLU does not say whether it believes the First Amendment is threatened in those states. Instead, it retreats to safer ground by focusing on historical restrictions on concealed carry.
Although, as even they admit, historical restrictions on guns aren’t terribly safe ground given the racist motivations and outcomes of many of them. That includes the “may-issue” concept the New York law is based on. Not that those concerns move the ACLU much in the brief.
“Some gun restrictions were motivated by racial animus and targeted Black people, which would violate the Equal Protection Clause today,” it said. “But even states with regulations animated by invidious discrimination regulated public carry of guns more generally.”
But the brief itself represents the culmination of the ACLU’s transformation on guns. The group was never much of an advocate for the Second Amendment. It started by openly saying the Second Amendment was the responsibility of the NRA.
In recent years, it has started to go further. Some of its top officials have said the landmark Heller decision was wrongly decided, and the Second Amendment does not protect an individual right. Now, they’re actively campaigning against the Court extending any protections to gun-carry whatsoever.
That’s the result of the ACLU’s slide from a single-issue advocacy group into a liberal identity group.
As our politics become more polarized and people have retreated more into their chosen tribes, a number of the biggest political advocacy groups have transformed themselves into identity groups. The calculation seems to be that these groups can raise more by doubling down on appealing to their core demographic than trying to broaden their appeal to those on the fence.
Liberals tend to like the ACLU, but they don’t like guns. So, the ACLU is now going out of its way to attack them. And in a fairly embarrassing way too.
The idea that gun carry presents such a threat to the First Amendment that government officials should be able to completely restrict it if they wish is undoubtedly not going to make it into the majority opinion in this case. Frankly, I’d be surprised if it makes it into any of the dissents either. With government officials in the vast majority of the country, and even the nation’s capital, stripped of the power to deny permits based purely on their personal judgment, it’s difficult to understand how anyone at the ACLU thought it should make the final draft.
It is transparently just an attempt to draw the thinnest of lines between the core question of the case and the ACLU’s top issue. That way, they can tell donors they are fighting against the other side. And maybe that will squeeze a few more dollars out of them.
