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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Sergey Solyanik

You can turn this around and say that privacy laws have negative impact on freedom because terrorists can have a channel to communicate, and this ability leads to increase in government surveillance of all citizens.

What a ridiculous argument.

Anonymous

the "airportization of America" was caused by the Muslims who President Trump is trying to keep out of our nation. Muslims have caused the death of more people both in America and world wide than every other group combined. They also are responsible for sexual assaults and honor killings in Europe.

Anonymous

Holy shit thats not true at all. We've definitely killed more muslims as a nation than muslims have killed us. Even within the US, right wing radicals have more attacks on average than radical muslims... Just in 2018 right wing radicals had more kills than radical muslims until the Pulse shooting- which was exceptional within the confines the US. There are also high rates of sexual assault and domestic volence within christian churches and even among LEO families. Sure, you can find bad muslims and islam has a radicalization problem atm, but muslims as a a group are just a group of people like any other... and we got some pretty fucking radical christians in the country atm.

David

I think my biggest problem is the logical inconsistency of justifying restricting an existing right by working backwards from the restrictions the government is proposing. Look at your list:

1) Increased physical searches

2) More surveillance.  

3) A growth in databases, watch lists
investigations, and background checks

4) More armed police and guards at more and more civilian gatherings

5) More police shootings

Despite having a near complete prohibition on the civilian possession of semi automatic firearms the UK is seeing all of the same intrusions on civil liberties aside from #5.

The base assumption the ACLU implies is that the government wouldn't be doing these things if it weren't for guns. Looking across the world, I don't know of any evidence that this is true - and certainly not in places with no right to bear arms.

The reasoning here rings hollow because history would seem to indicate that governments will justify restrictions on civil liberties for whatever reason they can justify to the current body politic.

I'm afraid this short-sighted view represents a general willingness to sacrifice civil liberties on the weakest of justifications if the liberty itself is one they don't personally like.

Anonymous MC

I don't think the ACLU is "justifying" the "airportizarion of America"; it is merely observing what is happening and why.
It's not wrong to point out that whatever choices we as a society make, there will be some consequences -- some we collectively choose, and some that just happen.

David

Observing what is happening and why based off a sample size of one, doesn't make for a compelling argument. As I stated in my comment, if you look at global trends in surveillance, censorship, watch lists, and armed police presence there doesn't seem to be a uniquely "American" effect, as one would expect if civilian firearm ownership was the cause. Instead, highlighted not just in authoritarian states such as China but also in the increased surveillance and speech restrictions in Europe - there is a trend against civil liberties overall.

To blame the citizens' choice to exercise a civil liberty for the excess of government in responding to it implies that the government response is justified. By that measure, protesting the government would be expected to cause the government to crack down on protest (as confirmed many places in the world) . The correct approach is not to explain the crack down as a natural and expected consequence of protest, suggesting that protesters should stay home - but instead to retrench and support the ideal of a citizen's right to petition for redress of grievances.

Paul

I think Reason summarized it best. This is a very old argument the author is making. It's called "Why do you keep making him hit you?"

Anonymous

As a former ACLU supporter, I’m sad to see the ACLU promulgating this misinformation on guns. This article inappropriately paints lawful gun owners with the same brush as criminals who have employed guns in their commission of crimes. The common presence of a tool does not support the association between these groups.

If we want less public outcry over violence, we must seek to reduce the drive to violence by analyzing the cause of the violence. End the drug war. Provide support for people suffering from trends of wealth inequality and stagnant wages. Provide every American with conflict resolution training and tools to deal with domestic violence. There are many things we can do to address our violence problem. Artificially focusing on “gun violence” is a distraction from addressing the real sources of our problems and arbitrarily targets lawful citizens who choose guns as a means to protect themselves.

Consider what a betrayal of the fundamental principles of the ACLU it would be to simply change the object of your statement:

“I have noticed a growing trend: the wide availability of [speech] and [its] misuse leading to restrictions on Americans’ freedom. Advocates for expansive [speech] rights who are serious in their concern over expanded government powers might consider how this is the case.”

Gun misuse is not correlated to gun availability. No plausible proposal will eliminate guns from our society. Let’s stop pandering to the uninformed and pretending that arbitrary prohibition of an object will solve our violence problem.

Special Ed

You should relinquish the ACLU moniker if you have no interest in protecting ALL of our civil rights. Without the 2nd amendment, the other 9 can never be defended against our ever-increasingly tyrannical government.

Anonymous

This feels like victim-blaming. There has always been, and will always be, friction between the goals of liberty and safety. Each of the intrusions listed are responses to a potential threat. These are broad responses to a very narrow problem. The problem is that these outlier events are horrible and are thus sensationalized by those who can profit, either politically or monetarily (NRA, media). The sensationalism breeds hysteria, and hysteria demands a response.

If liberty is the goal, rather than restrict the rights of those who wish to exercise that liberty perhaps more focus can be directed toward those who opportunistically push these intrusive measures?

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