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

My recollection of Locke's 2nd Treatise is that we give up the power extract revenge or justice using force, personally, by delegating such powers to the state in return for the state protecting our rights. Any loss of liberty is strictly limited to the person who infringes the liberty, person or life, or property of another individual.

Anonymous

This whole argument can be summed up as "people get scared because of sensationalized media, so give up your rights"

DaHa

You've made a cogent argument that mass shootings, the misuse of guns, may have a long term negative effect on freedom from government intrusion. But what evidence do you have the simple wide availability of guns, on its own, might affect our future freedoms? Despite your assertion, there's nothing in here addressing the effect of availability alone.

Sam C

There is something to be said about the hard and soft targets idea of what will be targeted. There's is also something to be said about building the perception that there are "iron fists within the velvet" glove, so to speak. Plainclothes guard for a school, for example.

Best practice for GC is still permitting based on background and competence.

Anonymous

>those who support expansive gun rights [...] should strongly consider how much government intrusion and expanded power they’re willing to trade for those rights.

Very little intrusion, if any. You don't preserve civil liberties by compromising on civil liberties. Of course the prospect of gun bans seems safer, but so does banning all non-conforming speech, and banning public assemblies of more than 10 people. I wouldn't want to live in any of those hypothetical societies either. You disappoint me ACLU. Get your act together.

Anonymous

John Locke would disagree with you, friend

Anonymous

Wow. ACLU list my support earlier this year after a leaked memo regarding the decision to not protect speech they don't approve of. Now they blame the abused (rights advocy) rather then the abuse (Govt Infringement). This is crazy. ACLU making quick work to dispose itself as an actual rights advocy group. Disgusting what's happened to this organization.

Anonymous

So.... the ACLU's argument is that if Governments don't pass Gun Control Laws they'll instead pass other laws such as:

* More physical searches
* More Surveillance
* More databases and watchlists
* More armed police in more situations
* More police shootings

And their /solution/ is to push for gun control?

Nevermind that the War On Guns would make the War On Drugs look like a picnic.

But /what/ Gun control is the ACLU looking for?

I mean Stop and Frisk was largely about checking people for /guns/, in a jurisdiction where Legal carry was defacto banned.

As for watchlsits, the ACLU was against the whole "No Fly No Buy" which is using secret blacklists to ban people from owning guns.

And do they /really/ think that if the police are more suspect that someone has an illegel gun that they would be /less/ inclined to wrongly use violence?

Meanwhile the ACLU in this /very article/ talks down Red Flag Laws and Extreme Protective Orders?

So... what gun control /exactly/ do they think /is/ okay?

Anonymous

""
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.
""

Turn that around, the article is literally saying "Hey, how many of the rights /I/ like can I get in exchange for agreeing to some gun control?"

Of course given Gun Control would result in less privacy (data bases watch-lists, ect), less due process (red flag laws and other bans), and more police interference.

It seems like a rather poor trade.

Anonymous

The comments seem particularly one-sided. My question is, do those who oppose even common-sense regulations truly not see the difference in countries that have such regulations? They are not suffering through repeated mass shootings of children. (And why is the "well-regulated" part of the Second Amendment always ignored?)

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