Is the ABA Anti-Second Amendment?

Posted by William Kirk, Partner | Mar 11, 2020 | 0 Comments

The American Bar Association Has Historically Fought With All Their Might for our Constitutional Rights.  Why Are They Now Abandoning the Second Amendment?

The ABA recently ramped up its attempts to restrict lawful gun ownership and further stigmatize the firearm industry. The association, which sets professional and academic standards expected of those practicing law, recently adopted three resolutions that abandon core American liberties. First, let's remember that the ABA's mission is, “To serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.” Despite that, the association recently  passed resolutions on so-called “ghost guns,” firearm permits and mandatory firearm storage requirements.

Take another read of that mission statement, especially the part about defending liberty. It's curious that there's no mention of publicly advocating for the erosion of Constitutional rights. Yet, some would argue that this is exactly what they are doing. The ABA has long taken a position in the gun control debate and touts that it has been a “leader on the issue of gun violence” for over 50 years.

Standing Committee Against Guns

Here's the big problem; the ABA's Standing Committee on Gun Violence, funded by taxpayer dollars, will wor on its' “evidence-informed policy, education, and advocacy.”  But some point out that this one-sided political activism flies in the face of the ABA's own mission – to serve members equally. There is, for example, no ABA Standing Committee for Advancing and Protecting the Second Amendment.  The ABA fights fiercely to protect other rights not actually written in our Constitution.

The ABA has historically defended, with great zeal, the First Amendment's protections of speech and religion.  Likewise, ABA has strongly defended the Fourth Amendment ensuring that our citizens are free from unreasonable government intrusion.  Access to justice and due process are guaranteed by our Fifth and Sixth Amendment and once again, the ABA has defended each with all it's might.  The ABA has routinely lobbied for stricter controls of the death penalty under the Eight Amendment protections against cruel and unusual punishment.  

ABA Resolutions

Resolution 107A focuses on “ghost guns” and urges the government to criminalize the sale or transfer of an unfinished frame or receiver. The proposal presents so-called “ghost guns” as a growing threat and argues that they are being increasingly used by people who cannot legally possess or buy firearms (criminals).  There are legitimate points on both sides of the 3-D printed gun debate.  But should the ABA be taking a position on this at all?  Certainly the ABA could lobby for how laws are to be enforced or how justice should be carried out.  But to take a position, which arguably erodes an individual's Constitutional Rights is at best, mildly troubling.  

The second resolution 107B, asks that law enforcement officials require gun permit applicants to apply in person, be fingerprinted and have both a criminal records and background check completed. Many argue that this is step one to a registry for law-abiding firearm owners and is a severe burden on gun owners. It's alarming the association of lawyers would advocate for the government to maintain lists of Americans who choose to exercise their civil rights. Would the ABA advocate for a government database of everyone who has ever lawyered up following contact by police?  Maintaining these “lists” of these law-abiding citizens allows the government to reclassify these people as potentially dangerous and requiring monitoring. All that, they argue, just for exercising a God-given right protected by the Constitution. Imagine the (justifiable) outcry if the government kept lists of those that exercised other constitutional rights? Justice Clarence Thomas, in dissent of a denial of certiorari petition, noted that the Second Amendment is treated with less dignity than other constitutional rights.

Mandatory and Potentially Unconstitutional Storage Laws

The ABA is also supporting mandatory storage laws.  Mandatory storage laws, their third proposal, prescribed by the government will not increase safety.  The firearm industry has long championed the safe and responsible use and storage of firearms. For example, for over 20 years the NSSF, on behalf of our industry, has partnered with over 15,000 law enforcement agencies in every state and U.S. territory, to distribute over 38 million firearm safety education kits including a free cable-style gun lock.  We recognize that there isn't a “one size fits all” prescription. Having the government mandate what must be done to secure a firearm strips the individual firearm owner from making their own responsible choice for their situation. After all, the "right to keep and bear arms shall not be infringed."  The resolution requires firearm owners to meet these requirements but doesn't state how the government would confirm whether a gun owner is in compliance with the law. One logical conclusion to this law is that it would, in fact, erode public liberty by leading to unreasonable search and seizure of law-abiding citizens.  The Supreme Court in its landmark Heller decision held that the District of Columbia's mandatory storage law was unconstitutional.  Despite this precedent, the ABA still chooses to endorse mandatory storage laws.  

The real question here is do Second Amendment issues have anything to do with the core mission of the ABA?  However, given the ABA's choice of working to erode one particular Constitutional Right, while defending all others.  Perhaps a more accurate mission statement would be "To serve equally our members, our profession and the public by defending liberty and delivering justice of the legal profession, so long as those members don't value their individual, God-given right to keep and bear arms."  


About the Author

William Kirk, Partner

Bill Kirk has been named a Super Lawyer by Washington Law and Politics Magazine every year since 2003. He currently serves on the Board of Regents to the National College for DUI Defense and is the President of the Washington Foundation for Criminal Justice. Bill is one of only two attorneys in this state to pass the National College's Board Certification Exam.


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