The American Civil Liberties Union claims to be the nation’s “premier defender of the rights enshrined in the U.S. Constitution,” but the organization has historically had a blind spot when it comes to the right to keep and bear arms. In fact, the ACLU maintains that “bans on assault weapons, high-capacity magazines, and bump stocks” raise no civil liberties concerns. Neither do laws prohibiting adults under the age of 21 from purchasing or possessing a firearm. “Red flag” laws get the green light from the ACLU, as do “requirements that guns include smart technologies (like password protection) that ensure that only the lawful owner of the gun may use it; and requirements that gun owners first obtain a permit, much like a driver’s license, establishing that they know how to use guns safely and responsibly.”
But the ACLU has apparently found a gun law it opposes: the federal prohibition on gun ownership for “unlawful” drug users. Law.com reports that the American Civil Liberties Union is helping Ali Danial Hemani with his legal briefs ahead of the Supreme Court’s oral arguments next year in his challenge to Section 922(g)(3).
ACLU National Legal Director Cecillia Wang said in a statement to the National Law Journal Monday that the government “should not be able to subject millions of Americans to felony prosecution based on the false presumption that marijuana use makes people so dangerous that they cannot possess a firearm.”
“The Fifth Circuit reached the right conclusion in holding that this law cannot constitutionally apply to a recreational marijuana user,” Wang added.
That’s not actually what the Fifth Circuit concluded. The appellate court decided that the national tradition of gun ownership doesn’t support a ban on gun possession by users of intoxicating substances, though laws that bar people from possessing firearms while they’re intoxicated likely do fit within that national tradition.
In other words, if Ali Danial Hemani had been caught with a gun while he was high as a kite, then the Fifth Circuit would almost have certainly upheld his conviction.
I can certainly understand why the ACLU is taking an interest in this case, but I hope this is just the beginning of the organization’s respect for the people’s right to keep and bear arms, which has been awfully selective to date. Even if the organization still clings to the belief that commonly-owned arms can be banned without violating our right to keep and bear arms (indeed, all arms that aren’t equipped with “smart” features), the ACLU may soften its stance on the constitutionality of other prohibited persons statutes.
If the ACLU believes marijuana users can own guns in compliance with the Second Amendment, for instance, what about individuals convicted of non-violent offenses punishable by more than a year in prison? Should a conviction for a bad check that resulted in a probationary sentence automatically result in the revocation of the right to keep and bear arms?
I’m glad to see the ACLU is lending a hand to Hemani, just as I was pleased when the ACLU helped defend the National Rifle Association from attacks on its First Amendment rights by New York’s then-director of the New York State Department of Financial Services. The NRA case was a First Amendment action, though. This is, to the best of my knowledge, the first time the ACLU has taken a pro-Second Amendment stance in a Supreme Court case. If the organization is ready to start treating the right to keep and bear arms as a real civil right, it won’t be the last.
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