The ACLU and the 2nd Amendment II
There are some great comments to my original post on the ACLU and the 2nd Amendment, but I think the conversation got a bit off track and I want to clarify what the post was really supposed to be about.
I'm not trying to advocate a particular position on the 2nd Amendment, as my own is still pretty murky. Instead, what I'm trying to do is criticize (constructively, as it is an organization I love) the ACLU for not giving a sufficient explanation for their abandonment of the 2nd Amendment as a constitutional protection worth fighting for.
One of the most common responses in the comments was that the text of the 2nd Amendment is different from the others in the Bill of Rights because of its explanatory clause ("being necessary to the security of a free State").
But my argument is that the ACLU (and other liberal/libertarians) take that textual point (despite not being textualists), read it narrowly (despite not being strict constructionists), and thus justify a restrictive interpretation of the 2nd Amendment, in a way that would never be done with the other amendments.
If the issue were not gun rights, but speech or due process, that same text would be read broadly, e.g. couldn't the "security of a free State" include the need for self-defense against neighbors and/or invading armies, or the guarantee of an ability to hunt food?
I'm not suggesting that this is either the correct or most natural interpretation of that text, but what I wonder is why the same groups that read everything else broadly (e.g. a broad unenumerated right to privacy, a broad right to free speech, broad rights against self-incrimination and unreasonable search and seizure, and even required funding of the right to counsel, all of which I agree with by the way) not only refuse to do so for the 2nd Amendment but read it in such a way as to nullify it as a constitutional protection.


