A Pro-Liberty Case for Gun Restrictions

In recent months, the nation has been debating gun control issues with renewed intensity. One of the principal arguments that firearms advocates advance against restrictions on guns is freedom: Americans ought to be free to own guns, and free to defend ourselves, and that broad ownership of guns by citizens is a check against the possibility of oppression by our own government.

My colleague Louise Melling has laid out the ACLU’s views on guns here — that while gun regulations must be unbiased and subject to due process protections, the Constitution does permit limits on firearms sale and ownership. Overall, the ACLU does not generally engage in either side of the gun control issue. But we do care about freedom, and I have noticed a growing trend: the wide availability of guns and their misuse leading to restrictions on Americans’ freedom. Advocates for expansive gun rights who are serious in their concern over expanded government powers might consider how this is the case.

Mass shootings create a pervasive sense of insecurity and anxiety that politicians and policymakers will inevitably seek to address. Throughout history, people who live in warlike times and places have built walls, while residents of peaceful kingdoms have tended to live without them. When particular security threats arise (real or perceived), societies respond — through policy, behavior, and architecture. Like calluses responding to friction, government power builds up where threats are perceived. If Americans continue to increasingly think of each of their fellow citizens, including children, as a potentially mortal threat at every public gathering, this fear will inevitably lead to more and more government reach into American life.

Intrusions already in play or proposed as a result of mass shootings include:

  • Increased physical searches, including ever-expanding checkpoints, bag searches, magnetometers, body scanners, pat downs, and more. Call it the “airportization of American life.” To pick one telling example: After the Parkland shooting, students at Marjory Stoneman Douglas High School were barred from carrying backpacks, except those that are clear and permit the contents inside to be seen. This decision by the school cost students the fundamental personal privacy of being able to carry books, medicines, and other intimate items without exposing them to public view.
  • More surveillance. We have seen at least two school districts in the United States — in Arkansas and the state of New York — vote to adopt comprehensive surveillance systems that include blanket video surveillance, tracking, face recognition, and the ability of law enforcement to tap into the system. The pressure to install such systems, inside our schools and out, will only increase if mass shootings continue to happen regularly. 
  • A growth in databases, watch lists, investigations, and background checks that set the government rummaging around in our personal lives.
  • More armed police and guards at more and more civilian gatherings, potentially down to every Little League game and church picnic — authorities whose very presence will change the character of American life, and who are also likely to assert their power in numerous ways, make everything into a law enforcement issue, and generally bring the government into a lot of situations in American life where the government has not traditionally meddled. Security experts know that if you harden some targets, attackers just go for the softer ones.
  • More police shootings. There are a lot of problems behind our nation’s tragically high rate of unnecessary police shootings, including racism, poor training, and the militarization of our police. But it is also undoubtedly the case that the widespread availability of guns makes police much jumpier than they otherwise would be and quicker to shoot.

Let’s examine one of the implications of this trend a little more in-depth: law enforcement investigations of “suspicious” individuals.” After the Parkland attacks, there was a discussion about the FBI’s failure to detect shooter Nikolas Cruz ahead of time. Some of the people around Cruz were alarmed by signs that he might do something violent, and they called in tips to the agency, which did not investigate.

It may be that the FBI was incompetent here, and we do often see law enforcement failing to respond sufficiently to some threats, such as domestic violence. But it’s also possible that the tips the agency received were the kind of thing that agents hear all the time, and that there were understandable reasons the agents did not spring into action. But either way, the implication of expecting the government to detect and prevent every mass shooting is believing the government should play an enormously intrusive role in American life.

Remember that if the FBI interviewed Cruz but lacked strong evidence he had committed a crime or posed a threat to himself or others, there would not have been much agents could have done after interviewing him — unless gun advocates are suggesting we allow the government to arrest and imprison people on hunches and worries alone. More fundamentally, as I have explained at length elsewhere, there is a deceptively enticing logic when we look backward at a terrorist attack. “Wow,” people naturally think, “look at all the signals the attacker gave off that should have been detected! If we just monitor everybody for those signs we can stop the next attack!” The problem is that such signs are always vastly more common than actual attacks. There is an “asymmetry between past and future” that makes it very hard to predict terrorist attacks looking forward, even though they may be relatively easy to understand looking backward.

Obviously, people have and should continue to call the authorities when they see genuinely suspicious behavior, and the authorities can and should investigate such behavior. The problem is that as shootings continue, such investigations are likely to become routinized, over-used, and turned into unjustifiably intrusive government monitoring of individuals’ lives.

Greg Abbott, the governor of Texas, for example, reacted to the May mass school shooting in Santa Fe by calling for the state’s intelligence fusion centers to engage in automated monitoring of residents’ social media accounts to try to detect incipient attacks. Mass monitoring of Americans’ public social media conversations is the digital equivalent of putting a secret policeman in every coffee shop to listen in on public conversations and report suspicions to the authorities. That is a deeply un-American approach to law enforcement that is highly unlikely to be effective and, at the same time, highly likely to significantly chill our free-wheeling public life.

Gov. Abbott also encouraged state residents to install an app on their phones for reporting tips of suspicious behavior — just the kind of thing that is likely to push people into over-reporting non-conforming behavior to the authorities. Every high school and community in America has people who are alienated and angry or are seen as such by those around them. I worry that if mass shooting events continue, the threshold for suspicion will become much lower and that ever-greater numbers of people will be reported based on ever-slighter suspicions, and based on biases of various kinds, and we’re going to have a lot more law enforcement officers intruding into our lives a lot more based on a lot less. After Parkland, there was a wave of reporting to police of behavior that people found suspicious in those around them.

As we as a society consider the issue of gun violence, these implications for American freedom also need to become part of the conversation. In particular, those who support expansive gun rights as a protection against excessive government power should strongly consider how much government intrusion and expanded power they’re willing to trade for those rights.

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Dr. Timothy Leary

"As long as there are any guns around, somebody is going to end up getting shot. There's no stopping it.": Wyatt Earp circa 1890.

Anonymous

"We had every right to shoot him. But I've never owned a weapon in my life. I have never had and never will have a gun around." - Timothy Leary, 1966

"Resist physically: robot agents who threaten life must be disarmed, disabled, disconnected by force... Arm yourself and shoot to live... Life is never violent. To shoot a genocidal robot policeman in the defense of life is a sacred act." - ALSO Timothy Leary, 1970, after being freed from prison by the terrorist group Weather Underground, later guarded in exile by the armed Black Panthers.

¯\_(ツ)_/¯

Anonymous

“A Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.”

― Ida B. Wells-Barnett

Anonymous

Must see movie: "Deacons for Defense" puts an interesting condtitutional spin on this issue.

Anonymous

A well regulated Militia, being necessary to the security of a free State, the right of the PEOPLE to keep and bear Arms, SHALL NOT BE INFRINGED., its plain as day, our founding fathers made sure to re-enforce the 2nd amendment very clearly by stating 'SHALL NOT BE INFRINGED', and if you want to argu the well regulated militia aspect remember what the militia is, it is NOT the military, it is the average US Adult Citizen. I agree fully with this article when it comes to the intrusion into American lives, but it's not the fault of the guns, We have had guns in this country largely unregulated since our very beginning, and it's never really been an issue until very recently, oddly enough actual gun violence itself is DOWN, we live in the safest period the Earth has ever known, and the more gun regulation they try to put in place, the worse it seems to make it. We have to focus on the real problem, what is going on in our society at the root level that causes people to shoot up a school? Until we focus on WHY these people are doing these things, we will never solve the problem, only try to bandaid a symptom.

ReplicationSpork

A "well regulated militia" commonly included mandatory weapons inspections, allowing the government to track who had firearms, requiring citizens to report for musters or face penalties, regulations about how much gun powder an individual could keep on their property before having to store it in a public storehouse, confiscation of weapons by people who refused to swear loyalty oaths, etc.

A well regulated militia is not what we have in the United States today. Our nation has a long history of reasonable firearms safety regulations and NRA leaders used to support federal gun safety laws like the National Firearms Act of 1934, the Federal Firearms Act of 1938, and the Gun Control Act of 1968. It wasn't until a sociopolitical climate shift in 70s, and the NRA building coalitions with reactionary conservative politicians, that the NRA and other gun rights advocates started promoting the myth that firearms regulations largely didn't exist in the past and they're inherently a violation of the 2nd amendment.

Al

ReplicationSpork - "NRA and other gun rights advocates started promoting the myth that firearms regulations largely didn't exist in the past and they're inherently a violation of the 2nd amendment."

There were no federal firearms laws until 1934, not a myth. All the firearms restrictions you talk about setting precedent when the country was new were state and local laws, not federal. There were no federal firearms laws back then because they are a violation of the Constitution. Since the Fourteenth Amendment, those restrictions apply to state and local laws too.

Anonymous

Mental health issues, unfortunately the class of drugs referred to as ssri's seem to cause many of the mass shooting incidents
the Federal/State need to restart mental health programs again, but this time with better care, instead of the horrible past history We had

Anonymous

“Since I like to walk my dog after dinner, we should establish a neighborhood park.” That doesn’t mean I’m saying there aren’t other good reasons or uses for the park, I’m just giving you ONE reason. It’s not necessary to be in a militia, or well-regulated, to have other good reasons to own a gun. The PEOPLE is everyone.

Logicus Prime

ReplicationSpork

"A 'well regulated militia' commonly included mandatory weapons inspections, allowing the government to track who had firearms, requiring citizens to report for musters or face penalties, regulations about how much gun powder an individual could keep on their property before having to store it in a public storehouse, confiscation of weapons by people who refused to swear loyalty oaths, etc."

That's the militia, not the people. They're two different things. Not all of the people were part of the militia.

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