The Second Amendment has remained the cornerstone of the argument favoring gun rights — any attempts by the government to reform gun legislation that hinders the ability or ease of citizens to purchase weapons has sparked concern among this group of advocates. Now, Second Amendment activists have the American Civil Liberties Union (ACLU) on their side — sort of.
While the gun control legislation sponsored by Nevada Democrat Sen. Harry Reid doesn’t explicitly claim the intent of creating a national gun owner registry or nationwide criminal history database, the ACLU is warning that it comes dangerously close to compiling the information to do just that.
“As we’ve seen with many large government databases, if you build it, they will come,” Chris Calabrese of the ACLU told conservative news site, The Daily Caller.
Despite ACLU criticism, polls show Americans do overwhelmingly support broader background checks. A poll released by McClatchy-Marist indicates 84 percent of Americans favor background checks for private gun sales, which apply to gun shows.
Yet that’s not the concern of the ACLU, which is more focused on how the government keeps records of those background checks.
The odd couple: ACLU’s rationale
The ACLU is not thought to be an ally of the conservative movement, as its mission of protecting civil rights generally lands on the side of the left. It advocates on the behalf of victim of racial discrimination and promotes the overturn of the Defense of Marriage Act (DOMA). Its list of causes also includes protection of abortion insurance coverage, a blatant contradiction to the Republican party platform.
Yet Second Amendment advocates are now highlighting the ACLU’s recent statements, which stem from concerns regarding the gun bill’s violations of the Fourth Amendment’s protection against unreasonable search and seizure and the Fifth Amendment’s due process clause.
A story published by the The Daily Caller included an interview with Calabrese, a lobbyist for the ACLU, who expressed his organization’s opposition to provisions in Sen. Harry Reid’s gun control bill, claiming it could potentially lead to the creation of a national database of citizens’ criminal history.
“Unfortunately, we have seen in the past that the creation of these types of records leads sometimes to the creation of government databases and collections of personal information on all of us,” Calabrese told the news organization. “That’s not an inevitable result, but we have seen that happen in the past, certainly.”
Calabrese and the ACLU aren’t exactly taking issue with provisions in the bill that call for universal background checks, but they are warning that, if mishandled, it could lead to problems down the road.
“We [also] believe those checks have to be conducted in a way that protects privacy and civil liberties. So, in that regard, we think the current legislation, the current proposal on universal background checks raises two significant concerns,” Calabrese told the The Daily Caller.
Those concerns relate to the treatment of records for private and public purchases. As it stands, gun purchases made through a licensed seller requires a background check, which is destroyed within 24 hours. The new law calls for the collection of background check information obtained through private gun sales, including those made at gun shows.
That information, the ACLU warns, could be used against citizens.
“For example,” Calabrese said, “the National Counterterrorism Center recently gave itself the authority to collect all kinds of existing federal databases and performed terrorism-related searches regarding those databases. They essentially exempted themselves from a lot of existing Privacy Act Protections.”
Under the Privacy Act, this becomes illegal, as government entities are not entitled to share private information without citizen consent.
“Contrast this with what the existing legislation says, which is simply that a record has to be kept of a private transfer and it doesn’t have any of the protections that we have in current law for existing licensees,” he said.
Reid’s bill includes background checks that appeared in similar legislation put forth by New York Democrat U.S. Sen. Chuck Schumer, which also included records to be kept of all gun sales in the country.
Despite criticism from the ACLU, Reid’s bill is receiving widespread support among Democrats, including Vice President Joe Biden, who urged all lawmakers to consider passing the new gun control reform.
“For all those who said we shouldn’t or couldn’t ban high-capacity magazines, I just ask them one question: Think about Newtown,” he said.
The ACLU is far from opposing all elements of the new gun control bill, as it does support background checks, in general.
ACLU and the Second Amendment
While the ACLU is a constitutional defending organization, its interpretation of the Second Amendment is much different than those of organizations dedicated to gun right laws.
In a statement released Jan. 17, just weeks after the Newtown, Conn. school shooting that left 27 dead, the ACLU explains its interpretation of the Second Amendment.
“Given the reference to ‘a well regulated Militia’ and ‘the security of a free State,’ the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right,” the statement reads.
It highlights, however, a 1939 court decision, United States v. Miller, which echoed the ACLU’s interpretation. A 2008 decision in D.C. v. Heller, however, led to a 5-4 vote with the Supreme Court ruling that the Second Amendment favors individual’s rights to keep and bear arms. While the ACLU does not agree, the ACLU states its National Board is “currently under review.”