How the ACLU Started Defending the Second Amendment

After a counterprotester was killed at the 2017 Unite the Right rally in Charlottesville, many members of the American Civil Liberties Union (ACLU) condemned its Virginia chapter for defending the First Amendment rights of the white supremacists who organized the demonstration. The critics included Waldo Jaquith, who expressed his displeasure by resigning from the ACLU of Virginia’s board of directors.

In an interview with Slate‘s Dahlia Lithwick a few weeks later, Jaquith noted that “the ACLU gets to pick” which cases it takes. For example, he said, “you will not see the ACLU taking on any Second Amendment cases, as that is a part of the Bill of Rights that it prefers not to defend.”

That seemed like a pretty sure bet at the time. The ACLU, after all, had long maintained that the Second Amendment does not guarantee an individual right to arms. Yet less than eight years later, the organization asked the Supreme Court to uphold that right by rejecting the Trump administration’s attempt to prosecute Ali Hemani, a Texas cannabis consumer, for illegal gun possession.

Hemani admitted that he owned a pistol and that he smoked marijuana a few times a week. That would have been enough to convict him of violating 18 USC 922(g)(3), which makes it a felony for an “unlawful user” of “any controlled substance” to receive or possess a firearm. But Hemani’s Supreme Court brief, which the ACLU joined, argues that “the Second Amendment forecloses the government’s attempt” to prosecute him under that law.

“This is the first time that we have entered a case affirmatively on behalf of an individual making a Second Amendment claim,” says Brandon Buskey, director of the ACLU’s Criminal Law Reform Project and one of the attorneys listed in Hemani’s brief. “Now that the Supreme Court has recognized this as a fundamental right, we see this as an important civil liberties issue.”

The ACLU’s position in United States v. Hemani puts it on the same side as the National Rifle Association (NRA). This is not the first time those two groups have teamed up: The ACLU, consistent with its historical agenda, defended the NRA’s First Amendment rights in the 2024 case National Rifle Association v. Vullo. But this is the first time the two groups have united in defense of gun rights at the Supreme Court.

The ACLU’s stance in Hemani is striking in light of what the organization has previously said about gun control and the Second Amendment. Even after District of Columbia v. Heller, the landmark 2008 case in which the Supreme Court recognized that the Second Amendment constrains government regulation of firearms, the ACLU continued to disagree.

“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 organization said in a statement that was still posted on its website as late as December 2023. “The ACLU disagrees with the Supreme Court’s conclusion about the nature of the right protected by the Second Amendment.”

Still, that post-Heller position statement added, some gun control laws “may raise civil liberties questions.” That caveat helps explain the apparent contradiction between rejecting a constitutional right to own guns and defending that right at the Supreme Court.

Hemani raises issues that intersect with several traditional ACLU concerns, including due process, equal protection, and the unjust consequences of the war on drugs. And once the ACLU agreed to help represent Hemani, it was ethically bound to deploy all the available legal weapons on his behalf, including Second Amendment precedents that the organization’s lawyers might otherwise consider dubious. But as Jaquith pointed out, “the ACLU gets to pick” its cases. Depending on your perspective, the fact that it picked this one is either puzzling or hopeful.

‘They Bring a Certain Gravitas’

The case against Hemani began with the FBI’s suspicions that he was involved in providing financial support to Iran’s Islamic Revolutionary Guard Corps, a designated foreign terrorist organization. Although the FBI never found enough evidence to support a terrorism-related charge, its 2022 search of Hemani’s home in Lewiston, Texas, discovered a Glock 19 pistol, about two ounces of marijuana, and less than a gram of cocaine. Hemani acknowledged that the gun and the marijuana were his, resulting in a charge under Section 922(g)(3), which is punishable by up to 15 years in prison.

The gun case never went to trial. A federal judge dismissed the charge in February 2024, and the U.S. Court of Appeals for the 5th Circuit upheld that decision in January 2025. That result, it said, was consistent with its August 2024 ruling in United States v. Connelly, which held that the Second Amendment bars Section 922(g)(3) prosecutions when they are based on nothing more than the elements specified in the statute.

In reaching that conclusion, the 5th Circuit applied the test established by the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which requires the government to demonstrate that gun restrictions are “consistent with this Nation’s historical tradition of firearm regulation.” The Biden administration argued that Section 922(g)(3) was analogous to early laws that prohibited people from publicly carrying or firing guns while intoxicated. The 5th Circuit thought that comparison was inapt because those laws, which applied only in public and only when a gun owner was under the influence of alcohol, were narrowly targeted at the hazard posed by drunken gun handling.

Section 922(g)(3), by contrast, categorically disarms drug users, even in private and even when they are sober. It is analogous to decreeing that anyone who consumes alcohol may not own guns. While “our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon,” the 5th Circuit said in Connelly, “they do not support disarming a sober person based solely on past substance usage.” It applied the same logic in Hemani’s case, noting that “the Government concedes its evidence is deficient under Connelly‘s binding precedent and that this deficiency is dispositive.”

The Trump administration, despite its avowed commitment to “protecting Second Amendment rights,” wants the Supreme Court to reject the 5th Circuit’s reasoning and reinstate the gun charge against Hemani. After the Court agreed to hear the case, Hemani’s lawyers asked the ACLU to get involved.

“They bring a certain gravitas as one of the preeminent civil liberties organizations in the country,” says Zachary Newland, one of Hemani’s attorneys, whose Colorado practice often includes criminal cases that implicate the Second Amendment. Given the ACLU’s history of “standing up to power and standing up for individual rights,” he adds, a case that features “governmental overreach” and “abuse of prosecutorial discretion” seemed like a good fit.

Newland’s law partner, David Boyer, says he was “happily surprised” by the ACLU’s decision. You can see why: For many years, the ACLU insisted that the Second Amendment does not protect an individual right, and even today its position on the question is ambiguous at best. The ACLU has long supported stricter gun control, going so far as to argue that it can be justified on civil libertarian grounds.

‘No Constitutional Impediment’

“The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one, existing only in the collective population of each state for the purpose of maintaining an effective state militia,” the ACLU’s national board said in a June 1979 position statement. “Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms.”

Leaving aside the meaning of the Second Amendment, did the group think there might be other reasons a civil libertarian would want to protect a right to private gun ownership? Nope.

“Nor does the ACLU believe that there is a significant civil liberties value apart from the Second Amendment in an individual right to own or use firearms,” the board said. “Interests of privacy and self-expression may be involved in any individual’s choice of activities or possessions, but these interests are attenuated where the activity, or the object sought to be possessed, is inherently dangerous to others. With respect to firearms, the ACLU believes that this quality of dangerousness justifies legal regulation which substantially restricts the individual’s interest in freedom of choice.”

Did that mean the ACLU actively favored gun control? Yes. “The word ‘justifies’ in this policy means we will affirmatively support gun control legislation,” explained a footnote added in response to that question. Consistent with that position, the ACLU was listed as a member of the National Coalition to Ban Handguns in 1981.

That footnote proved controversial. At an April 1980 meeting, several board members argued that the ACLU should not take a position on the merits of gun control because it was not part of the organization’s mission. After the ACLU’s Due Process Committee considered the issue and agreed with the dissidents, the board voted to remove the footnote in June 1982.

“It was really not the ACLU’s business,” says Ira Glasser, who served as the organization’s executive director from 1978 to 2001. “It was really social policy. The consensus was that it wasn’t a civil liberties issue.”

Given “the dominant political bias of most of the people who were making policy,” the 1979 position statement “was passed almost by reflex and not [with] much thought,” Glasser says. “The policy really was not as complicated as it should have been.” At the Founding, he notes, the militia consisted of people who brought their own guns, so in that sense the Second Amendment protected an individual right, albeit one that Glasser views as obsolete given the transformation of the militia into a National Guard that is subject to federal as well as state control.

The 1979 position statement nevertheless conceded that gun control might implicate ACLU concerns unrelated to the Second Amendment. “Particular federal or state laws…may raise civil liberties questions,” it said. “For example, the enforcement process of systems of licensing, registration, or prohibition may threaten extensive invasions of privacy as owners are required to disclose details of ownership and information about their personal history, views, and associations. Furthermore, police enforcement of such schemes may encourage entrapment, illegal searches and other means which violate civil liberties.”

‘They Just Didn’t Want To Go There’

Wendy Kaminer, a lawyer who served on the ACLU of Massachusetts board from the early 1990s to 2009 and on the national board from 1999 to 2006, can testify to the organization’s leeriness of the Second Amendment. In the 1990s, she says, “I got interested in Second Amendment rights partly out of my contrarian impulses, because liberals were so uniformly opposed to them.” She found that “the ACLU was not willing to touch Second Amendment rights.”

At the ACLU of Massachusetts, “I couldn’t even get them to set up a committee” to study the subject, Kaminer recalls. “They just didn’t want to think about it. We used to set up committees all the time. It’s just a bunch of people sitting around talking about things. But they just didn’t want to go there.”

Scott Henson, a Texas journalist who ran the Police Accountability Project at that state’s ACLU chapter from 2000 to 2006, is not keen on gun rights and was not interested in starting a debate about the Second Amendment. But when he learned that police were arresting Texas motorists for carrying guns without a license simply because they had firearms in their cars, he saw an opportunity to pursue an ACLU cause while building alliances with conservatives on criminal justice issues.

In 2005, Henson testified in favor of legislative reforms aimed at protecting legal gun owners from police harassment. Two years later, he wrote a report noting that cops and district attorneys were defying the new law by continuing to arrest and prosecute drivers for transporting guns. That ACLU project, which the NRA supported, was “internally controversial,” Henson recalls, although “it shouldn’t have been,” since “due process was consistent with the national stance.” The ACLU of Texas got “pushback” from donors and at least one official at the national organization, he says, because “simply being on the same side of a topic with the Second Amendment people made folks uncomfortable.”

In contrast to Henson’s experience, Nadine Strossen, a New York Law School professor who was president of the ACLU from 1991 to 2008, notes that the organization “teamed up with the Second Amendment Foundation and Gun Owners of America in vigorously asserting Fourth Amendment rights of gun owners who were subject to unjustified searches and seizures, including in the Waco and Ruby Ridge situations.” She recalls appearing on Oliver North’s radio show to explain that seemingly strange alliance.

Strossen’s tenure at the ACLU ended the same year that the Supreme Court decided Heller, which recognized a constitutional right to keep handguns “in defense of hearth and home.” But the ACLU’s position on the Second Amendment did not change after Heller, and the national organization’s rejection of that decision provoked some dissent among state chapters.

“The Nevada ACLU respects the individual’s right to bear arms subject to constitutionally permissible regulations,” that chapter said. “The ACLU of Nevada will defend this right as it defends other constitutional rights.” The ACLU of Arizona also explicitly rejected the national organization’s position, saying it “supports the individual right to bear arms,” which it noted was guaranteed by the state constitution as well as the Second Amendment.

Seven years after Heller, the national board approved a revised position on the Second Amendment. Susan Herman, a Brooklyn Law School professor who was the ACLU’s president from 2008 to 2021, recalls that “ACLU members in various affiliates around the country had diverging views on the Second Amendment and wanted to discuss whether, post-Heller, the ACLU’s pre-Heller position should evolve.” The new policy, which the board approved in October 2015, acknowledged the “scholarly and legal debate” about the Second Amendment’s meaning and some of the evidence in favor of the Supreme Court’s interpretation. But the ACLU neither embraced that view nor explicitly rejected it. “It looked to me like something of a compromise,” says Georgetown law professor David Cole, who was the ACLU’s legal director from 2018 to 2024.

That compromise still gives the government a lot of leeway to regulate guns. “The ACLU will not oppose governmental regulation of firearms as long as such regulation is reasonably related to a legitimate governmental interest, such as protection of the public health, safety, or welfare,” the 2015 policy says. It adds that “deference should be given to legislative judgments limiting gun ownership or use so that state and local governments are allowed an opportunity to experiment with solutions to the complex problems involving guns.”

Such deference is quite different from the ACLU’s usual approach to laws that impinge on civil liberties. “They’re saying we don’t recognize a constitutional right to arms,” Kaminer says. “If all the government has to show is a reasonable relationship to public safety, you’re not dealing with a constitutional right. And the ACLU is fully aware of that. So they’re not coming out and saying it, but if you parse their language, it’s implicit.”

Like the ACLU’s 1979 policy and its initial response to Heller, however, its 2015 position allowed for the possibility that a gun law might implicate “civil liberties principles such as privacy, due process, equal protection, and freedom from unlawful searches.” Louise Melling, the ACLU’s deputy legal director, emphasizes that through line: “Our position has consistently been that if regulation of firearms…infringes on civil liberties, we would weigh in.”

‘There Was a Revolt’

The ACLU did weigh in on gun issues after the 2015 revision, but not in a way that gladdened the hearts of Second Amendment advocates.

After the Unite the Right rally in Charlottesville, Kaminer notes, “there was a revolt within the ACLU” because “people were furious” that the Virginia chapter had defended the chief organizer’s right to stage the event at his preferred location: near a statue of Confederate Gen. Robert E. Lee that was slated for removal—the ostensible provocation for the protest. In response to the internal uproar, the national organization adopted new “case selection guidelines” that said “the ACLU generally will not represent protesters who seek to march while armed.”

It is true that many of the Unite the Right demonstrators had openly (and legally) carried guns, as did some of the counterprotesters. But firearms had nothing to do with the death of Heather Heyer, who was killed when a white supremacist drove into a crowd of counterprotesters—an assault that also injured 35 other people. Still, the new guidelines said, “the presence of weapons can be intimidating and inimical to the free exchange of ideas.”

The ACLU elaborated on that theme in Bruen, which involved a New York law requiring residents to show “proper cause” for carrying guns in public. According to the ACLU’s brief, that highly restrictive policy, which gave local licensing authorities broad discretion in deciding who should be allowed to exercise the right to bear arms, promoted “important values reflected in the First Amendment” by furthering “the state’s important interest in facilitating a wide-open public debate.” Discretionary carry permit policies like New York’s, the ACLU argued, “facilitate civic engagement” by “promoting safety” and ensuring that “the disagreements inevitable in a robust democracy do not lead to lethal violence.”

Four decades earlier, the ACLU’s national board had decided the organization should refrain from endorsing gun control because “it wasn’t a civil liberties issue,” as Glasser puts it. But in Bruen, the ACLU devised a civil liberties rationale in favor of gun control by positing a conflict between Second Amendment and First Amendment rights. “We thought [New York's law] was consistent with historical practices,” says Cole, who was the ACLU’s legal director at the time, “and that it served an important purpose of both public safety and ensuring people are free to engage in protest without being concerned about getting shot.”

The ACLU defended gun control again in United States v. Rahimi, a 2024 Supreme Court case involving the federal ban on gun possession by people subject to domestic violence restraining orders. But the ACLU’s brief in that case included some intriguing qualifications and caveats.

The ACLU urged the Court to reject the Biden administration’s preferred rationale for upholding the law at issue in Rahimi, warning that the government’s position amounted to a “sweeping assertion of power to deny Second Amendment rights to anyone not deemed a ‘law-abiding, responsible citizen.’” The Court took the ACLU’s advice, rejecting the government’s argument in favor of a narrower justification tied to evidence of dangerousness.

The ACLU also emphasized that its approval of this particular law should not be taken to mean that it was fine with all forms of gun control. The ACLU is “by no means a reflexive supporter of firearms restrictions,” the brief said. “Even putting aside the Second Amendment, such laws raise multiple concerns. Laws that impose severe penalties on individuals for merely possessing a gun contribute to unjust and unnecessary punishment, and help fuel mass incarceration. Criminal enforcement of gun laws has contributed to the racially disproportionate character of the incarcerated population, undermining [the] promise of equal justice under law. Where such laws are enforced selectively on the basis of race, their application violates the constitutional guarantee of equal protection.”

The brief mentioned additional concerns: “Because they limit a constitutional liberty, individualized gun deprivations must be predicated on procedures that satisfy due process. The Eighth Amendment, meanwhile, prohibits cruel and unusual sentencing for gun law violations. Moreover, while civil licensing regimes that prohibit selling guns to persons found to pose a threat of domestic violence and subject to restraining orders are a sensible tool to prevent further violence, sweeping after-the-fact criminal sanctions imposed categorically on wide swaths of persons are another matter.”

‘A Constitutional Liberty’

That last concern helps explain the position that the ACLU took in United States v. Duarte, a 9th Circuit case involving 18 USC 922(g)(1), which prohibits gun possession by anyone who has been convicted of a crime punishable by more than a year of incarceration. Presaging their Hemani alliance, the NRA and the ACLU both sided with Steven Duarte, a California man who had been sentenced to more than four years in prison under that law even though his criminal record was limited to nonviolent offenses.

In a brief supporting Duarte that it filed three months after the Supreme Court’s decision in Rahimi, the ACLU noted that Section 922(g)(1) is “an extraordinarily broad statute that does not target dangerousness or propensity to commit violence.” It said the government had failed to show that the provision’s “categorical application to people convicted of nonviolent offenses” is “consistent with our history and tradition,” as required by Bruen. It added that the law is “a major contributor to mass incarceration and disproportionately impacts people of color.”

In addition to those traditional ACLU concerns, the brief referred to “Second Amendment rights,” which in this context could only mean the individual right to possess firearms. And even in Rahimi, where the ACLU was defending a firearm regulation, it noted that restrictions on gun ownership “limit a constitutional liberty”—i.e., the right to arms. On its face, such language does not seem consistent with the ACLU’s official position on the Second Amendment, which is agnostic, at most, on the question of whether it protects any individual rights at all.

Within the “big tent” of the ACLU, Cole says, some people “believe there is a right” and others don’t. Some “believe that the criminalization of gun possession and use has contributed to injustice in the criminal justice system.” Some “believe that overbroad restrictions on guns are problematic because they’re not reasonably related to public safety.”

What do these various concerns mean in practice? Many gun restrictions, including bans on “assault weapons” and “high-capacity” magazines, “raise no civil liberties concerns,” Melling writes. Others, such as licensing of gun owners, “universal” background checks, “red flag” laws, and mandates requiring that guns incorporate “smart technologies (like password protection)” aimed at preventing unauthorized use, “may also be justified,” she says. But the ACLU rightly takes a dim view of laws that disarm broad categories of people—such as noncitizens, individuals with nonviolent criminal or psychiatric records, and “unlawful” drug users—based on criteria that have little or nothing to do with public safety.

That brings us to Hemani, which involves some of the same issues as Duarte did, plus a drug war angle that is clearly up the ACLU’s alley, given its opposition to marijuana prohibition. In Hemani, unlike in Bruen, Rahimi, and Duarte, the ACLU did not just file a brief; it agreed to represent a client—a role that comes with a special obligation to make the strongest possible argument on his behalf based on the existing case law.

The ACLU is “just acknowledging the legal reality and playing the game on the board that’s in front of them,” Henson suggests. “We are representing the client in this case,” Strossen notes, “and that may well result in raising different arguments than we would have if we were just filing a friend-of-the-court brief.”

The brief that the ACLU joined in Hemani argues that Section 922(g)(3) is unconstitutionally vague because it does not define “unlawful user,” a term that federal courts have long struggled to understand: How recent or frequent must a defendant’s drug use be for him to fall into this category? The vagueness argument is based on the principle that the Fifth Amendment’s guarantee of due process requires “fair notice” of what a law requires or prohibits. Section 922(g)(3) “doesn’t give proper notice of what kind of behavior it actually prohibits, which is a core due process requirement,” Buskey says, and that vagueness “invites arbitrary and discriminatory enforcement.”

So far, this is familiar ACLU territory. But Hemani’s brief also argues that prosecuting him would fail the Bruen test. “Even if the Due Process Clause permitted this prosecution, the Second Amendment would not,” it says. “When it comes to the Second Amendment, the only question here is whether the government may deprive someone of the right to keep a handgun in the home because he consumes marijuana a few times a week.”

A Transpartisan Alliance

That explicit defense of gun rights suggests “the ACLU doesn’t have a coherent position on the Second Amendment,” Kaminer says. “They’re sort of trying not to have a position on the Second Amendment, but to have enough leeway so that they can step into cases where they’re sympathetic to the parties or unsympathetic to the government. They want to defend the rights of marijuana users. They want to defend the rights of people with nonviolent criminal records. Having this really fuzzy, elastic, not entirely coherent approach to the Second Amendment allows them to do that.”

Kaminer suggests another factor that may have played a role in the ACLU’s evolving stance. “Given where we are politically,” she says, “there’s some significant number of liberals or progressives who are becoming more sympathetic to individual gun ownership rights because they’re feeling a lot more threatened by the government.”

Newland, Hemani’s lawyer, does not want to speculate about the ACLU’s motivation in joining the case. He is just grateful that it did. “The ACLU was incredibly gracious with their support and expertise before the Supreme Court,” he says. “The ACLU brought a group of superb lawyers that were vital to the strength of our team.” He also lauds Washington, D.C., lawyer Erin Murphy for offering “an absolute master class at oral argument” in early March. Questions from the justices suggested most of them were inclined to agree with her. In short, Newland says, “I could not have envisioned a better lineup of incredibly smart and passionate lawyers to work alongside.”

The ACLU’s participation added another dimension to a case that already featured strange bedfellows on both sides. The 5th Circuit, which has a reputation as the country’s most conservative federal appeals court, did not flinch from upholding the gun rights of cannabis consumers. The Trump administration, which claims to support the Second Amendment, is asking the Supreme Court to reject the 5th Circuit’s conclusion in Connelly, a decision written by one of the president’s appointees. Counterintuitively, 18 blue states that have legalized recreational marijuana are siding with the Trump administration, apparently because their attorneys general thought protecting gun control was more important than defending the principle that marijuana should be treated like alcohol.

The government’s defense of Section 922(g)(3) provoked vigorous opposition from an ideologically diverse mix of organizations. The NRA, which until a few years ago was reluctant even to comment on this issue, was joined by a bunch of other Second Amendment groups, including Gun Owners of America, the Second Amendment Foundation, and the Firearms Policy Coalition. Those groups are allied with the Drug Policy Alliance, the National Organization for the Reform of Marijuana Laws, the National Association of Criminal Defense Lawyers, and several libertarian organizations, including the Cato Institute, Reason Foundation (which publishes this website), the Independence Institute, and the Liberty Justice Center.

That lineup vividly illustrates the potential for transpartisan alliances at the intersection of gun control and the war on drugs. By joining it, the ACLU reinforces the hope that Americans can overcome their political differences to ameliorate the damage done by the twin crusades against drugs and guns.

The post How the ACLU Started Defending the Second Amendment appeared first on Reason.com.

Source: https://reason.com/2026/05/12/how-the-aclu-started-defending-the-second-amendment/