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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Justicar

"In the 1920's when women were fighting for their 14th Amendment rights to vote"

Let me stop you right there. There is no such 14th Amendment right. Further, women weren't fighting for their right to vote in the 1920s inasmuch as the Constitution was amended by ratification of the 19th Amendment in 1920 having been submitted to the states in 1919. This amendment had one of the fastest turnaround time of any amendments submitted to the states. The only ones ratified more quickly than it are, I think, the 12th, 13th, 15th, 17th, 20th, 21st, and 26th. The 26th had the shortest ratification period after submission. I get that it's a dearly held mythology of history that women were oppressed by the evil men, but once a sufficient number of women petitioned for this right it was granted virtually immediately. And unlike for a single man in our history, the right to vote was given to women without any corresponding obligation to serve the country; it was for them entirely free once they asked for it. For the following half century, many men were still being drafted to die in our wars absent a Constitutional right to vote in the elections of governments who consigned them to their deaths.

You also drone about how many 'gun owners were silent'. Of course they were. Most of these violations of which you speak aren't known to most of the country because not every unlawful activity of every government official is national news. And even if it were, there are more such events that any person can keep track of let alone individually address.

"After 9/11 when the remaining amendments in our Bill of Rights were violated"

You can't possibly mean that inasmuch the 'remaining amendments in our Bill of Rights" weren't violated then. Prior to this dramatic and hyperbolic claim of yours, you had only mentioned one such amendment, the 4th. You excluded none. Thus, you mean the Bill of Rights minus the 4th. Tell me about the 3rd Amendment violations that happened. The 8th, the 9th, the 10th. The 7th.

"In the above examples, gun owners "traded" the perception"

Let me interrupt you again for a correction of your claim. "In the above confabulated examples, I will just claim that it was gun owners who did nothing in response to my largely imagined events. Therefore I win."

Anonymous

Explained a different way: If any president that perceives themselves as "above the law" on torture, warrantless spying and gulags. A future president can assert an "above the law" authority on 2nd Amendment gun rights. The point is presidents are NOT above the law from following the U.S. Constitution [a wartime charter governing wartime powers]. That mindset of having extrajudicial authority is the danger from any president. In other words, Bush never had the legal authority to torture or set up Guantanamo or kidnap prisoners.

Anonymous

Hi, I’m both a gun owner and an ACLU Guardian of Liberty.

I didn’t have anything to do with those things, largely because my parents hadn’t met yet.

Anonymous

Do fun owners wear a sign that says "gun owner"? How do you know what I habe spoken for or against? Yes I am a gun owner, and my father and his father before him. Non of us hate Muslims, we do not discriminate against homosexuals, I openly supported same sex marriages. My father openly supported his minority friends in their fight for equal rights. To judhe us on pur gun ownership makes you no better than the store.owner racial profiling a young black student entering his shop with a backpack.

Anonymous

Actually, many 2nd Amendment supporters did support civil rights. Former NRA president Charlton Heston marched with Martin Luther King and former member of NRA board of directors, Roy Innis, was a president of the Congress of Racial Equality (CORE).

Anonymous

Help us in Illinois, red flag law was just signed giving police the right to judge and select which law abiders get to posess and which gay ones, black ones female ones and disabled ones have to surrender their means of protection.

Evan Huot

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin

Anonymous

That referred to taxes. Two, Benjamin loved reading John Locke, who said that as part of a social contract between citizens and government, the citizen has to give up some liberty for a more stable society

The True ACLU

I never thought I'd see the day when the ACLU is pushing to strip innocent individuals of their rights rather than defending them.

Mr. Stanley misattributes the issue of excessive governmental intrusion to civilian gun owners, who are one of the most law abiding groups in our society, even moreso than police, who we arm despite their flagrant abuses of power.

The real driving force behind our looming surveillance state is the public's inability to accept the risks that accompany a free society. By granting rights to everyone, we inevitably enable those who would use those rights against us: The right to privacy can be used by criminals to hide their illicit activities, just as the right to keep and bear arms can be used to murder innocents.

Such abuses should result in those rights being taken away from the abusers via due process. However abuses of rights by a select few individuals do not merit the collective nullification of those rights, as Mr. Stanley is proposing. Such preemptive and collective punishment violates the fundamental tenets of our justice system, including due process and presumption of innocence.

And what benefit would result from such punishment? Stripping law abiding citizens of their rights won't make the public safer or quell their feelings of insecurity. The public will continue to be terrorized by criminals armed with bombs, trucks, computers, and knives, which are just as effective at instilling terror as guns. It's worth mentioning that 9/11 was committed by religious zealots armed with box cutters.

It is up to the American public to determine which is more important to them: their rights or their fears. A fair warning to those motivated more by the latter: those who give up freedom for security end up with neither.

Anonymous

Please read some John Locke and other philosophers who talked about the social contract.
They all basically said that it is necessary to give up some liberty for stability, and Ben's quote was about taxes. Plus, vehicles need a license, bombs are hard to use, and computers take time to learn. Knives still require more skill than firearms.

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