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

So you think we should abandon the civil liberty of firearm ownership for the illusion of safety? No thanks.

Anonymous

I didn’t hear him say that. There is a difference between restriction and prohibition. We are not careful about who we allow to have deadly weapons. We are not doing our due diligence. Are you protecting the 2A or our right to put ourselves and everyone else in danger. Our gun laws are haphazard, at best, and thwarted at every turn. Imagine if we had as few controls over our traffic laws. ( and still cars kill people.) Why is it that this can’t be a problem solving discussion? When you allow yourself to be polarized, all collaborations cease. I don’t care if you own a gun. Look around. Don’t you see the problems? Dead children in schools??? Metal detectors in all government buildings. Swat teams in Times Square. Be part of the solution for God’s sake. Figure it out or someone else will, and you may not like the compromises.

Anonymous

Congratulations, you’ve discovered the Heckler’s Veto and applied it to the second amendment.

What an inane article.

Anonymous

Some ACLU affiliates do take 2nd Amendment cases, mostly in rural states but the ACLU of Pennsylvania sued the Philadelphia Police Department defending a gun owners rights. All rights can be regulated. Where were gun owners during the Bush years when other amendments were being violated?

David

If we imagine a venn diagram, of gun owners and ACLU members -- there are many who oppose and continue to oppose the expansion of power of the executive branch. Were there many who were lacking? Sure.

But your statement isn't really an argument. Let us imagine a hypothetical country music singer, a supporter of the Bush presidency and the construction of the surveillance state. Let us imagine a small town that has decided to ban country music, and denies a permit to this singer because of their music. Is the correct response on the subject of free expression: "Where was this singer when other rights were being violated?"

No, the correct answer is that the right of free expression is worth defending, even for hypocrites. I wish that all 2A supporters were 1A and 4A supporters as well, but I'm not going to take a reductive view of civil liberties because the supporters of certain liberties don't support other rights as strongly.

Anonymous

There is a distinction between "Voter Issues" versus "Constitutional Court Issues". Congress and state legislatures can "represent" (and legislate into a bill) any issues that the voters favor - with one condition - those laws must operate within the boundaries of the U.S. Constitution (as interpreted by the U.S. Supreme Court) under Article VI of the United States Constitution. When voters choose leaders that exceed the legal authority of the courts' jurisdiction, to interpret constitutionality, we are practicing a foreign style "Authoritarian" model of government NOT America's "Constitutional Rule of Law" model of government. Presidents don't have unlimited powers in the USA like foreign dictators. The ACLU primarily sues government officials practicing authoritarianism, violating the supreme law of the land - the U.S. Constitution.

If gun owners support the "constitutional rule of law" model of government - by opposing torture, warrantless witetapping, gulags, kidnapping, etc. and supporting the constitutional rights of women, African-Americans, LGBT folks, etc. - that STRENGTHENS the American rule of law model. If gun owners cherry-pick only Second Amendment rights, they weaken the entire system of constitutional due process.

For example: although highly unlikely, if 90% of the voters wanted to take away women's voting rights or reinstate slavery, it's nearly impossible to do under the American model. Even if most voters wanted to do it. It could happen under the foreign authoritarian model of government with lawless dictators.

Under the 2008 "Heller" ruling by the U.S. Supreme Court, gun owners will never have their gun rights taken away - even if most voters want to. We can regulate other amendments - police perform sobriety check points, courthouses and other sensitive buildings make you walk through magnetometers, etc. Gun rights can be regulated - to protect other people's rights - but will never be taken away (unless gun owners continue supporting "authoritarian" leaders that promote things like torture and gulags).

Anyone that cites their "Second Amendment" rights is primarily making a "Constitutional Court Issue". Voters and Congress are legally limited to operate within those boundaries set by the high court.

Kiemas

Very sad to see articles like this being spread.

Very scary that our politics have devolved to the point where Americans are literally left with one choice in my opinion.

You are either for Individual Liberty in which case you are forced to vote Republican because that is the only way there might be some semblance of a chance of retaining our freedoms

Or you feel that Equity is the most important thing and its worth compromising your individual freedoms to achieve equity for the group in which case you would vote Democrat.

Its either Globalism or Nationalism

Global Socialism (inevitable communism eventually)
or
National Freedom

Anonymous

Oh quit sprouting about how the Globalists on the internet. Stop watching Alex Jones

Anonymous

In the 1920's when women were fighting for their 14th Amendment rights to vote, many gun owners were silent. In the 1960's when African-Americans were having their 4th, 14th and 15th Amendment rights violated, many gun owners were silent. After 9/11 when the remaining amendments in our Bill of Rights were violated, many gun owners were silent. When LGBT couples were denied marriage licenses, gun owners were silent about that 14th Amendment violation.

In the above examples, gun owners "traded" the perception of better security for liberty [which Benjamin Franklin warned us about]. They determined the threat justified the loss of liberties.
Using vital stastics [World Almanac], there is a stronger case to limit 2nd Amendment rights than any of the above examples. Gun owners should start supporting the entire Bill of Rights if they value their 2nd Amendment - can't have it both ways!

Anonymous

Yes, but this is a comment on an article taking a stand against the individual liberty view of the Second Amendment. Should gun owners support the entire bill of rights? Absolutely, but the inverse should also be true. You suggest a falsehood in assuming that none of the people fighting for the right to vote were themselves armed; particularly in the 1960s. I recommend looking up the Deacons for Defense and Justice as well as the book "This Nonviolent Stuff'll Get You Killed" for more information.

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