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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Better Call Saul

Alinsky tactic, referring to your views at "common sense." Do you support or oppose "common sense" psychiatric treatment for people who use Alinsky tactics?

Anonymous

Please define "common-sense regulations." I can assure you it will neither be "common" nor "sense".

David

I'll work backwards through your comment.

The "well-regulated" verbiage is not ignored. I recommend reading Professor Eugene Volokh's writing on the common usage of a prefatory clause and an operative clause in laws at the time. Additionally, the first draft of the second amendment makes the relationship between the two clauses clear.

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."

If we substitute something less political, it is very clear who the right belongs to.

"A well regulated school, composed of the body of the students, being the best education of a free state, the right of the students to keep and bear books shall not be infringed."

It doesn't make for easy reading in modern parlance, but it is hard to read the above as the right of the school to keep books. Instead, the school and the education of a free state represents a justification for why the right to keep and bear books is important.

To your other point, we can have a separate debate about the effectiveness of gun control in preventing the tragedies you mentioned. Not up for debate is the claim in this article, that giving up guns is associated with a greater recognition of personal liberties. It is easy to look across the European continent and see that aside from police shootings, all of the other concerns apply just as much, and are perhaps worse outside the protection of the first amendment.

Returning to the question of effectiveness, you'll find that most gun rights doubt that there is any process by which you could effectively reduce the level of gun ownership enough to have a meaningful effect on crime and violence. America, for the most part, is the safest it's been in 50 years, despite the proliferation of guns. "Common sense" is only common if people commonly agree that such measures would achieve their goals more than they would intrude upon the liberties of the population.

Calling a theoretical law requiring a background check to use encryption software common sense wouldn't make it common sense, and most who disagree with "common sense" regulations do so because they don't agree that they would work. Passing laws that don't work, giving government more power and visibility over our lives is the very definition of the kind of thing the ACLU should resist.

Anonymous

They are one-sided because this blog post is blatantly anti-civil liberties on a website for the protection of civil liberties.

Please clearly and preferably concisely outline your common-sense regulations that would have prevented any of the last mass shootings of the last decade. I'll wait.

(The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.)

Anonymous

Do you not think that such people have their heads in the sand or what?

Philip Boncer

The headline is simply false. This is not in any way a "pro-liberty case for gun restrictions". There's nothing pro-liberty in there anywhere. This "argument" is: "you should roll over and let your liberty be restricted by us because otherwise it might get restricted more by someone else." The correct answer is: "No, we will fight against ALL the liberty restrictions."

Anonymous

It's interesting how no one is ever willing to talk about WHY people are shooting other people. All of the intentional shooting have a reason behind them. People are living with more stress than ever, thanks to the spectre of unaffordable health care, lack of employment, expanding debt, environmental decay, and elders who have zero interest in acknowledging the reality of these issues and trying to fix them. As things get worse, it's no surprise that more and more people can't take anymore stress and they snap. Solve these issues and the stress in people's lives would go down, and I imagine gun deaths would go down as well.

Anonymous

Total BS

J Abraham Collins

The notion that we must choose between gun control and a police state is a ridiculous false dichotomy. We can have neither. Look at Europe; they're living with both, so what went wrong there?

Anonymous

Heard of John Locke? He would disagree.

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