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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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.

Anonymous

Amen! The well regulated part implied that civilians are supposed to have access to the same weapons as military servicemen, per George Washington.

ACLUsupporterAn...

On the milita bit, one would consider the National Guard "well regulated" yes? Except of course during the Ludlow Massacre where Rockefeller Jr. was paying the CO Nat. Guard troops' salary, they machine gunned a camp of strikers evicted from the company town, later burned it to the ground killing something like a dozen kids, and literally broke a rifle stock over the workers' leader during a meeting before shooting him dead. Those who attempt to recast the 2A by by manipulating the militia phrase seem to forget that the groups they support having guns -- police, military, national guard, corporate private security -- have forever been in the service of the oligarchs and have forever been willing to commit the grossest human rights violations in the execution of that service.

Anonymous

That's precisely what the article is talking about more regulations leading to more government in intrusion. If you want regulations you compromise privacy, we the people have to do our part to keep each other safe instead of wanting our government to qoute protect us.

Anonymous

Kinda spun that onto the gun rights supporters, no? Gun rights supporters are not advocating for liberalization of gun laws, they just oppose additional restrictions. Big difference. It is not a choice between gun bans or a police state. It is possible to let law abiding citizens be, regardless of which rights they choose to exercise. That said, gun policy is political suicide for any politician to deal with. Best to save energy for better fights, IMO.

Anonymous

This is a very disturbing article! You seem to be making the case that the unconstitutional oppression of our citizens' liberties is the fault of such citizens who exercise their rights, whom you characterize by maligning them as mass murderers, along with stuffing a feast of words into their mouths.

You imply that civilian possession of firearms, which has been regulated ever more strictly for fifty years, is the cause of the recent surge of infrigement and abuse of our privacy, and then suggest that the solution is for us to give up our right to defence so that the government will stop seeing us as a threat. This seems antithetical to your cause.

You paint a picture wherein security is only required at public events because citizens are allowed to legally bear arms. Certainly misuse of arms cannot be dealt with at all, and this must be the reason for the extreme resistance of the left to provide any kind of security to schools. The prolonged orgiastic response of the left to shootings can not be read into.

There is a point where you appear to make the argument that murders commited by the police are the result of citizens being allowed to own guns. This can't be responded to, I just wanted to point it out.

Mass shootings score high in viewership but rank low in the daily toll of preventable deaths in this country. If you believe these "warlike times" are the reason we are being surveilled and policed to a tee and that the solution to the police routinely murdering innocent unarmed citizens is to ensure that only the police are armed, then you must have discovered a handier method of accounting than I have. I have tried to keep up with your organization because I agree with most of your efforts but this is a recurring, politically slanted stick in the eye. Some guy said a thing a while ago about people who are lazy enough to sacrifice liberty for the illusion of safety, and what he thought they deserved. Even if you are willing to make that call, you ought to ask whether your contributors are.

Anonymous

When the constitution was written it took ONE MINUTE TO FIRE ONE ROUND !!!

Anonymous

When the Constitution was made we did not have the internet does that mean the first amendment does not apply to the internet....stupid argument that it took one min to fire

Anonymous

@Anon - Just plain FALSE. Besides the fact that repeating and multi-barrel firearms have been around in Western civilizations since the 1400's (and around 400 AD in southern China if you don't care about rifling and projectile type), the idea that the drafters of the Bill of Rights would not have foreseen technological advancements is downright laughable. They didn't ban explosives, cannons, or those repeating arms by name and were perfectly aware that they existed and were going to become increasingly more powerful over time.

Also, doesn't it feel a bit hypocritical posting that comment on a website that is reachable from 1.2 billion internet enabled devices the world over in as few 10 milliseconds time when at the time the Constitution was written THE FASTEST PRINTING PRESS IN THE WORLD COULD PRINT AROUND 6 METERS OF LARGE PLATE REPEATED TYPE PER MINUTE, COST AS MUCH AS A HOUSE, AND YOUR OPINION WOULD HAVE TAKEN AROUND FOUR MONTHS TO REACH THE OTHER SIDE OF THE GLOBE? Have you considered the fact that maybe the forefathers didn't want ill-informed, alarmist speech and opinions to dominate public discourse and if they had foreseen the Internet, they might have required background checks before allowing you to wield that much power? Funny how similarly vague the word 'abridging' is to 'infringing' isn't it?...

Anonymous

I think there is a flaw in your argument - 4 months is definitely an understatement.

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