The American Civil Liberties Union has always had a blind spot in defense of Americans’ individual rights; our right to keep and bear arms. The group has defended the First Amendment rights of even the most controversial of groups and individuals, including neo-Nazis and the Ku Kluk Klan, but they won’t support the right of the average citizen to bear arms in self-defense. The organization has long viewed the Second Amendment as a collective right instead of an individual right, and I don’t know why the ACLU website states that they are reviewing their position in light of the Supreme Court’s decision in the Heller case, given the fact that they’ve had 13 years to change their mind and have yet to do so.
It would be one thing if the ACLU simply remained neutral and silent on the issue, but instead the groups is actively pushing to keep New York’s restrictive carry permitting laws in place. In a brief filed with the Supreme Court on Tuesday, the group argues that the laws preventing the average citizen from lawfully bearing arms in defense of themselves and others “reasonably furthers the peace and safety conducive to robust civic engagement, and therefore does not contravene the Second Amendment.” In other words, restricting the Second Amendment rights of New Yorkers somehow protects their First Amendment rights to speak their mind and to publicly assemble.
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. 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.
Considering that a number of conservative justices like Clarence Thomas have griped about lower courts treating the Second Amendment as a second-class right, it doesn’t make much sense for the ACLU to argue that SCOTUS should codify that treatment by upholding one of the most restrictive permitting processes in the country in order to supposedly protect free speech.
Yet that is precisely the ACLU’s argument. In its brief, the group emphasizes that “states have every reason to believe that the open or concealed carrying of guns will chill the exercise of First Amendment rights by threatening the eruption of violence.” I disagree with that, obviously, but let’s assume that it’s a true statement for a moment. Why does the ACLU believe that a ban on carrying firearms would result in an absence of carrying? In New York today there are thousands of residents who are carrying without a license, even though they run the risk of a felony conviction and a mandatory prison stay if caught.
The ACLU is trying to turn Robert Heinlein’s oft-quoted “an armed society is a polite society” on its head. In their view an armed society is an inherently impolite society, where disagreements can turn deadly because of all those folks lawfully carrying guns.
The problem for the ACLU is that there’s simply no evidence that’s the case. We heard similar arguments when Texas was debating campus carry a few years ago. I lost track of how many gun control activists claimed that allowing students and professors to lawfully carry on campus would result in classroom discussions erupting into gunfire, which obviously hasn’t happened at all. In truth, concealed carry holders are more law-abiding than the general population, but the ACLU treats legal gun owners as if they’re all potential killers just waiting for the most opportune moment to take a shot at someone over a difference of opinion.
Here’s the reality. In 2019, Virginia had more than 644,000 concealed carry licensees. That year the Virginia State Police revoked a grand total of 464 licenses, and not every revocation may have involved a criminal offense. 2019 was also the same year that Democrats took control of the state government and immediately started pushing to ban AR-15s and other modern sporting rifles, which led to the Second Amendment Sanctuary movement spreading like a wildfire across the commonwealth. I attended plenty of meetings where supporters and opponents of 2A Sanctuary resolutions squared off in public debate, and I never once saw an act of physical violence between the two sides. It simply didn’t happen.
The First and Second Amendments peacefully co-exist as equal rights in the vast majority of states, which is as it should be. The ACLU’s insistence that the Second Amendment take a back seat to our freedom of speech and our right to peaceably assemble flies in the face of the Constitution, and it’s truly shameful than an organization ostensibly created to protect our civil rights would argue for the demise of one of them, to the point of giving the thumbs up to mandatory prison sentences and felony convictions for those New Yorkers caught carrying a gun without a state-issued permission slip.