The young lawyer continued on to his new pro-bono case. Congress had recently passed a law making it illegal to talk disparagingly of the drug war within Washington, DC. The ACLU considered that a violation of free speech, and were preemptively suing the government to overturn the law.

The Department of Justice was vigorously pursuing the matter. The young ACLU hotshot considered the case pretty open-and-shut. Political speech is protected, even political speech that disparages the law.

The Department of Justice fired the first salvo.

“We wish to challenge the ACLU’s standing in this matter,” said the Department of Justice lawyer.

“On what grounds?” asked the judge.

“We don’t need to provide grounds per se,” said the lawyer. “The ACLU needs to show that they have grounds to proceed. They are claiming that their status as a so-called ‘civil rights organization’ gives them this standing. However, the ACLU has a strong history of supporting each of the points they claim to oppose in this law.”

The ACLU lawyer laughed. “The ACLU has a strong history of opposing this kind of law,” he said, “and we shall oppose this one.”

“Your honor,” said the government lawyer, “the Department wishes to enter into evidence ACLU Policy #47, the ACLU web page ‘aaguns.html’, and the ACLU’s ‘Educational Campaign on the Second Amendment and Gun Control’.”

“Objection, your honor, 47 and aaguns.html are obscure documents irrelevant to the matter at hand.”

“Policy 47 and aaguns.html are referenced and displayed prominently on the ACLU web site,” said the government lawyer. “And ACLU policy is presumably ACLU policy.”

“Is this true?” asked the judge.

“Objection withdrawn,” said the ACLU lawyer.

“Point number one,” said the Department of Justice lawyer. “The ACLU supports Cruikshank v. United States as valid law, allowing civil liberties violations by state governments under little or no showing of need.”

“Objection, your honor. Cruikshank is outdated law, and these documents apply only to guns.”

“Counsel?” the judge asked the government lawyer.

“Your honor, Cruikshank applies only tangentially to firearms, and specifically to the first amendment protection of freedom of association and free speech which is the matter at hand. Second, the argument that Cruikshank is outdated is irrelevant. Relevant to ACLU standing is whether they believe that Cruikshank is valid today, and more important, whether they support Cruikshank’s findings. These policy statements show clear support for Cruikshank v. U.S.”

“Counsel,” said the judge to the ACLU lawyer, “does the ACLU regard Cruikshank as valid law? And does the ACLU support the findings in Cruikshank?”

“No comment,” mumbled the ACLU lawyer.

“Your honor,” said the Department of Justice lawyer, “with regards to the ACLU’s point that this law operates under a ‘twisted reading’ of the first amendment, policy 47 clearly supports such readings as required to create a reading favorable to government action. First, by claiming that the mention of ‘militia’ in a subordinate clause can modify the meaning of the ‘right of the people’ in the independent statement in such a way as to turn ‘the right of the people’ into a power of state governments. Second, their interpretation of Cruikshank’s findings that the rights of the bill of rights predate the constitution to mean that, even further than found in Cruikshank, that these rights simply do not exist at all, rather than that they do not exist at the state level.”

“Counsel?” the judge said to the ACLU lawyer.

ACLU counsel had its head in its hands.

“Your honor, this is not about the second amendment, it is about the first.”

“Your honor, this is in regards to ACLU’s present claims that laws must be interpreted broadly in favor of individuals, rather than broadly in favor of public safety. We believe the latter, and policy 47 clearly indicates that ACLU shares this belief with us. Does ACLU believe that the second can be read to grant a power of government rather than a right of the people? And does ACLU believe that Cruikshank v. U.S. can even today be interpreted as nullifying the rights stated in the constitution’s bill of rights?”

“Counsel?” asked the judge to the ACLU lawyer.

“No comment,” said the lawyer.

“Finally, ACLU argues not only that the people of the bill of rights can mean the government, but that state powers can be usurped by the federal government, without damaging their standing as state powers.”

“Objection as silly, your honor,” said the ACLU lawyer.

“It certainly seems so,” said the judge. “But so has everything else. Continue,” she said to the Department of Justice lawyer.

“First, the ACLU states clearly in Policy 47 that ‘the right of the people’ may be read as ‘collective rights of the state’, and they claim that this is not only valid but is how it should be read. That alone is a stronger argument than even we would make. Second, ACLU states that an armed force controlled by the federal government, the National Guard, is sufficient to satisfy the collective right of state governments to keep and bear arms.”

“The National Guard is the militia,” said the ACLU lawyer, “and is controlled by the governors of the states.”

“The National Guard is a national entity,” said the Department of Justice lawyer. “I find it hard to believe that ACLU could claim not to know that. Does ACLU argue that oranges are purple? State control over the national guard is a courtesy only, and is extended only so far as the national government feels fit to do so. The National Guard is a part of the National Army, as the Supreme Court has ruled in Perpich.”

“Counsel for plaintiff, do you have anything to say?” asked the judge.

The young lawyer embarked on an impassioned defense of the ACLU’s fight for the freedoms of speech and privacy over its seventy-three years of existence.

“Those are nice words,” said the Department of Justice lawyer in reply. “This policy, however, is written on paper and distributed publicly in mass quantities. We ask the court to use these papers as evidence of the ACLU’s policy, not words spoken in court when no one is listening.”

“I will take this under consideration,” said the judge. “Meet back here tomorrow morning.”

The lawyer had seen the document before, in passing, and hadn’t paid attention to it. He resolved to bring it up with the ACLU leadership. He felt horrible about losing this case; he felt even more horrible when the ACLU told him they wouldn’t need his services—provided at cost and at a loss of time—any further. His mistake was believing that his case mattered. Organizations like the ACLU need crises. The ACLU, the NRA, the Federal Government, brothers and sisters under the sheets. They need trouble to survive, to keep the perks for their leaders and the donations flowing in. If their causes are too righteous to fail, they need to make them fail. They need to be their own worst enemy. An ACLU that supported the second amendment right as well as other civil liberties would have no reason to exist today: it would have long since succeeded and disbanded, or turned into a shriner’s club for civil rights. Dressing up and driving funny cars every Fourth of July until no one remembers their original purpose, someone starts working against civil rights again, and the whole shebang starts all over.