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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Christopher Bingham

In spite of the fear mongering from people like Jay, even with spikes in a few cities, crime of all kinds have been on a steady downward trend for the last 26 years. The fact that cops are responding with abuse of power in light of that, is not an argument to give up gun rights.

KJay's article has a name, and it's called "doublespeak" and it is shameful for an organization that brought us the "imminent threat" standard of free speech by defending a Kluxer's right to shout ugliness. If this what the ACLU is becoming, I may just ask to be taken off the rolls.

Jay's article is just cowardice, and the board should be ashamed to even think about publishing such garbage.

Malvoliosf

It is a "pro-liberty case for gun restrictions". Unfortunately, it's also a pro-liberty case for police torture, assumption of guilt, double jeopardy, racial profiling, detention without charges and pretty much anything else the supporters of which claim will reduce crime.

Pete McNesbitt

The Stand Your Ground law in Florida and in other states begs the gun lobby to defend more and more ludicrous anti gun bans. Would Stand Your Ground be so popular if perchance people were using swords, dirks and bows and arrows to do in their neighbors and other undesirables. So it came as no surprise that Florida decided to penalize the innocent by issuing clear back packs to keep the gun lobby happy. If I had a student in school they would have been given sexual devices to give politicians in Florida something else to legislate since they don't seem to understand that ALL CITIZENS are affected by idiots who keep mistaking the Second Amendment as a platform for all gun rights.
Not infringing your rights shouldn't also mean that I have to worry about your rights killing me or my family. I am a gun owner who uses guns infrequently to remove vermin at home not to parade it downtown.

Pat Hines

There is no language to be found in the US Constitution that permits ANY US government gun laws. All that now exist must be repealed.

Further, the several states are now incorporated under the 14th Amendment to come under the absolute restrictions provided by the Second Amendment. All court decisions to the contrary are unlawful.

davidpmaurer

the 2nd amendment clearly states that the only reason to allow citizens to own firearms is if they are members of a well-regulated militia, which is what we called the american army at the time the amendment was written. the amendment is a single sentence. the scotus only began interpreting the comma as a period about 20 years ago, and it shocked legal scholars across the country. finally, it's an amendment, no different than prohibition. our constitution was purposely written to be fkexible and to allow changes as the times changed. jefferson himself wrote that he fully expected the entire document to be rewritten every 20 years or so, a practice that was and is common in many other countries. in a time when we have more mass shootings than the entire rest of the world put together and the nra takes money from russian spies and pulls congressional strings to block investigations about it, perhaps we should look at the australian, japanese, and uk models as the only sane way to protect our children.

Josh Sugarmann

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

Kate Smith

Thank you! Troubled times call for intelligent reflection. What do we want our future to look like?
I’m with Wyatt! Thanks Tim!

Rich7553

"We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government--even the Third Branch of Government--the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people--which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

United States Supreme Court
DISTRICT OF COLUMBIA ET AL. v. HELLER, (2008)
No. 07-290
Argued: March 18, 2008
Decided: June 26, 2008

Anonymous

The twisted, Orwellien logic in this piece conveniently ignores two facts.

1. Over the last 20 years, “gun violence” has dropped by 70 percent, and murders have dropped by 50 percent.

2. During this time millions of people have decided to carry guns for protection, and tens of millions of guns have been sold.

At the least, this shows what a lie the “more guns equals more crime” baseline of the gun ban lobby really is.

If the stance of the ACLU is to abandon the Second Amendment, I shall be dropping my membership and my support.

Anonymous

How about restricting pornography? After all, it results in family breakups and the courts getting involved with familial decisions, etc.

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