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

This is absolute nonsense. Look at the EU, the UK, China, Venezuela, etc. These countries have incredibly strict gun laws and bans and are the absolute worst places as far as government intrusion into everyday lives.

Anonymous

This basically reads like "If you stop making him mad, he'll stop hitting you". Same "logic" that you are using, and it's probably one of the least intelligent arguments someone could make. Good job.

Anonymous

Basically this article states that because I wish to invoke a constitutional right and it creates anxiety that the state must intervene?

Anonymous

Thanks for the reminder of why I haven't renewed my ACLU dues!

Harvey Mosley

Let's assume that Mr. Stanley is correct and that mass shootings will result in all of the things he is warning us about. So what? Show me one gun control law that would stop these shootings. Every knee jerk proposal we see after one of these shootings would have done nothing to prevent them. And in California we have a hoplophobe's wet dream of gun control but the "gun crime" rate here is no better and in many cases worse than the surrounding states that have more freedom. If gun control works why doesn't it work?

Robert

Congratulations. The idea that fighting for freedoms can make us unfree is perfect Newspeak.

The ACLU is well on its way to embracing Fascism.

Don't believe me? Read "Ur-Fascism" by Umberto Eco.

jimpeel

The Orwellian dystopian dream. Good is evil and evil is good.

Anonymous

I actually consider this article to be very well written, even if i disagree with some of the conclusions. You seem to suggest that that guns are the reason for greater government intrusion, or at least a strong factor in it, but this is happening regardless. The hijackers of 9/11 didn't use guns, and killed thousands, and now we have the overly intrusive TSA. You also seem to suggest that people concerned with excessive government intrusion should willingly give up the last check against such a thing. Imagine a world without guns, except by government. Then imagine the U.S. implementing policy to curtail free speech, intern citizens for undesired speech, foregoing warrants and due process, conducting illegal searches, and arresting people without cause. Imagine all the worst things you can imagine in a government without restraint. Then realize that you voluntarily gave away the only method you had of fighting back. The last thing a totalitarian government wants is an armed populace.
You are absolutely right to be concerned about over reporting, and this idea that government must stop all violence before it happens. However the reality is that this has always been, and will always be an unrealistic standard. Police are too often reactionary, meaning they come after the shots are fired. That is why the people must be capable of self defense. Absent some method of seeing into the future to determine what minor acts will lead to major ones, we must be prepared to live in a dangerous world. We have to accept the reality that in the end, we can only truly depend upon our own wits and will to survive it.
It is not the fault of gun owners or supporters when the government implements intrusive policy as a result of unrealistic expectations. It is the fault of government whenever an innocent person is killed in a place they were not legally allowed to defend themselves, and where the government failed to protect them. Consider the fact that nearly all mass shootings happen in gun free zones, and you might come to the logical conclusion that such areas should either have better security, or simply not be gun free zones. If the latter is not always reasonable, then the former must be required. But the government cannot be at fault every time a citizen commits a crime. If we have that mentality, then we'd have to expect the government to keep a close watch on every citizen at all times. That would lead to the worst kind of police state, and would certainly mean the end of freedom. So the problem is not guns, but the false sense of security too many people feel is owed to them, and an unreasonable burden placed on government to provide it.

Wayne

Because after all, freedom is slavery.

Anonymous

So basically, citizens shouldn't provoke the government into infringing on our rights by insisting on exercising our rights

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