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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Anonymous

Exactly what ancillary rights will be given up in order to disarm the public? With hundreds of millions of guns in circulation, the state will need unlimited powers of search and seizure.

Anonymous

Brilliant piece. This should be the headliner on the Ministry of Truth website.

Freelyspeaking

I don’t agree with the idea of our federal government saying in essence “give up your liberty or we will intrude on every other area of your life.” These are two very separate issues. Government regulation of firearms, and mass surveillance. If we give up liberty in exchange for security they have won. If we give up liberty under the threat of increase security, well again they have won. I just can’t go along with that. If it has to be a two front defense of individual right to bare arms, and right to privacy, I’ll take on that fight.

There is a second amendment and a forth amendment. They can’t ask us to give up on OR the other, they are rights protected by the United States Constitution so that your government is bound by that law not to infringe on those rights.

Rick Caird

I have to admit, the irony is palpable. The same people who want to take gun rights away and now want to evaluate speech before defending free speech, are asking for donations because Trump is taking our rights away from us. It is notable there are no examples of lost right, just an accusation.

The ACLU is no longer a serious organization. Rather is a collection of self important fools.

Medbob

All of these imposed restrictions are the result of improper handling of the threat.
All of these actions perform functions that are SUPPOSED to provide security for individuals, but they do not. A recent test of TSA security at airports showed that trained operators missed 90% of test weapons.

Safety is an individual responsibility. Always has been and always will be. Only you can prevent injury to yourself and others. Security is the same situation.

Only when a criminal KNOWS that he will probably lose his life when attempting a violent crime, will he be deterred. We do not do a good job at providing security for other people, and every failure results in another ineffective step in the wrong direction.
The vast majority of people are good and want law and order in their surroundings. Some have the training and experience to mitigate the risk. Some have the temperament and talent to be able to take training and match the criminals to a level of being able to overcome them.

Freedom is a principle and idea that cannot be suspended based on so called "Common Sense" ideas. Freedom IS THE common sense idea. Only when individuals are free to provide defense for themselves and others that matches the power brought to bear by the criminals, will freedom have been said to be supported.

As for me, I carry a firearm every day. I perform some kind of training every day. I maintain my proficiency with my firearm regularly. I study tactical situations and learn about what people have done right and what they have done wrong. As much as I can, I think that I am ready to meet the threat. Chances are, I will never have to defend myself. I hope that is the case. Still, I am ready to protect myself, my family and others around me. You will never know me as I stand beside you in the gas station or convenience store, but know that if a criminal attacks, I will meet that threat. Here in Indiana I am lucky. I am "allowed" to be ready and equipped.

When it comes to individual rights like the 2A, there should be no "allowance".
That is the absolute RESPONSIBILITY of the ACLU. Pick up your responsibility and support law-abiding citizens in exercising their right to self defense. A Human Right.

Kent Horton

If this drivel actually reflects the position of your organization, you should change the name to the American Selective Rights Union.

“That rifle hanging on the wall of the working-class flat or labourer’s cottage is the symbol of democracy.

It is our job to see that it stays there.” - George Orwell

Anonymous

Yup blame guns for the loss of privacy. How about terrorism? https://www.aclu.org/other/surveillance-under-usapatriot-act

Anonymous

Are you even aware that the Second Amendment is part of the Constitution? Why must this organization be the American Civil Liberal Union? Boring.

Anonymous

Get fucked, commie

Anonymous

As a supporter of the ACLU, I can say that this political movement of their position has me re-thinking my support. The ACLU historically has been a non-partisan, non-political supporter of constitutional rights. All our rights, not cherry-picked because of a new surge of donations from partisan donors. Go back to the ACLU I grew up with!

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