Privacy and Guns
posted by Daniel Solove
Over at the Volokh Conspiracy, Eugene Volokh (law, UCLA) fires off a few questions regarding the privacy of gunowners. He asks whether gun registration and licensing records should be available to the public. He also asks whether the requirement in some places that one cannot carry a concealed weapon is “an impermissible burden on people’s privacy.” Eugene writes:
I’m particularly interested in the views of those people who are sympathetic to gun controls — and especially in limits on concealed carry — but also see themselves as supporters of privacy.
Well, that’s me, so I’ll take a shot at responding. Although I am generally sympathetic to gun controls (not absolute bans of guns), I don’t support infringing upon the privacy of gun owners. Often, this is used as a proxy for gun control, and it isn’t a legitimate one or even an effective one.
Gun records should not be publicly available. I haven’t heard a good articulation for why the public needs to know who owns a gun.
However, I generally support government recordkeeping of gun ownership as well as requiring technologies to enhance the traceability of discharged ammo to particular weapons. This might be very useful in solving gun crimes. I would, of course, favor strong protections to prevent government abuse of such data or government dragnet searches of people who own guns.
Regarding open carry laws, I have a hard time understanding the justifications for these laws. Do we really want people walking around with their guns openly displayed in their holsters? This isn’t the Wild West, and I don’t understand the benefits of prohibiting concealed guns. Unless there’s a compelling benefit articulated, I don’t think that open carry laws would be justified against the infringement upon privacy.
December 9, 2005 at 7:24 pm
Posted in: Privacy
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Responses (13)
Mike - December 9, 2005 at 8:20 pm
I generally support government recordkeeping of gun ownership as well as requiring technologies to enhance the traceability of discharged ammo to particular weapons. This might be very useful in solving gun crimes.
How about recordkeeping of Google and other Internet-based searches? Seems like knowing whether someone was searching for [ch1ld pr0n] would also help solve crimes.
Daniel J. Solove - December 9, 2005 at 8:27 pm
Mike — I don’t believe in any absolutes in privacy, and therefore, I do not subscribe to the general principle that the government should never have access to information or records about people’s activities. Guns are very dangerous weapons, and they are frequently used in crimes. That’s why we require licensing to use guns, and why the government has a strong interest in at least regulating guns.
Google searches aren’t like guns. Yes, they may be useful in solving crimes, but I don’t see an equivalency between searching on Google and owning a gun.
I could turn your question around the other way: If you don’t support recordkeeping of gun ownership, would you support eliminating licensing and recordkeeping requirements for automobiles?
John Armstrong - December 9, 2005 at 9:18 pm
As I stated in comments on the post on VC cited above, I think guns can actually be treated perfectly analogously to automobiles or any other potentially dangerous item:
1. Assuming I demonstrate my abilities as a safe owner/operator, I have the right to possess such items.
2. Nobody (outside certain specific government uses) has the right to know my license status or any other information associated to the license.
3. When operating (including carrying a deadly weapon) those around me have the right to know I am operating the item.
Some commentary on the car analogy:
1. If I pass the set driving test, I shall be issued a driver’s license. The only thing that can bar me from owning and operating a car is said licensing.
2. Nobody seeing me walk down the street can tell whether I have a driver’s license or not. For all they know I possess a state-issued non-driver ID.
3. Although there’s really no such thing as a “concealed car”, the point is that the people I’m driving (operating a potentially dangerous item) near know I’m doing so, and can act accordingly.
As a footnote on comment 3, “disturbing the peace” charges are, in my opinion, the result of paranoia stemming from a general inexperience with properly operated firearms. People see hundreds of cars operated safely every day, so they have an accurate picture of the risks involved. If people had direct personal experience with the fact (okay, assertion) that firearm accidents and misuse are the exception rather than the norm (as is the case with cars), they’d be far less disturbed by the sight of one. Imagine that you’d never seen a car except in movie chase scenes and evening news stories about accidents.
Mike - December 9, 2005 at 9:27 pm
If you don’t support recordkeeping of gun ownership, would you support eliminating licensing and recordkeeping requirements for automobiles?
Eh, that doesn’t really work. Licensing automobiles doesn’t lead us down any slippery slopes. Are they going to ban cars? I sure wish SUVs would be outlawed, for purposes of national security and foreign oil dependence, but I don’t see it happen. Anyhow, let’s say I had God’s-eye knowledge, and with this I could see that registration would not lead to confiscation. I would absolutely support registration, since police should be able to know that, when going to a house, that a resident might be armed. But because of the slippery slope problem (and only because of the slippery slope problem), I oppose gun registration.
Why is using Google like using guns? A person using Google, like a person using a gun, can use it for legal or illegal purposes. I grew up in hickville. A lot of people had guns. I can only remember one murder in my town – and the guy was killed with a knife. So guns have legal purposes (say hunting or target shooting). Google has a lot of good purposes.
I used to blog quite a bit about child pr0n the the commerce clause, and child pr0n and Free Speech Coalition. I didn’t think to use the “pr0n,” spelling, and I noted a lot of people arriving to my site looking for illegal images. It really amazed me because my site was hundreds of search results down. There are a lot of sick people spending hours looking for sick images.
So the government’s keeping a database on certain Google searches could solve a lot of crime. After the Candyman case, it seems likely that a search for child pr0n would give the police probable cause to search the computer. As a matter of fact, someone Googling for such images would likely have illicit images on the searcher’s hard drive.
Thus, your counter-question fails; and my analogy between Google and guns still holds.
Alan Tauber - December 9, 2005 at 10:12 pm
See, I’ve never understood the point of the concealed carry law. If the whole point of carrying the gun in the first place is deterrence, don’t you want to advertise the fact that you have said deterrent?
On a global scale, MAD worked because the Russians knew we had nukes, and we knew they had them. Israel’s deterrence policy works because while they don’t officially acknowledge they have nukes, everyone knows they do.
So yeah, if a criminal is looking for someone to mug, I’d rather let him know I’m packing and have him go after someone else. Else, why have the gun in the first place?
John Armstrong - December 10, 2005 at 12:20 am
Alan:
The standard counter is that CCW leads to doubt in the mugger’s mind. If everyone packing heat shows it, then anyone not showing it isn’t packing, so the muggers will go for that. With CCW, anyone might be packing, so everyone’s a deterrent.
Plainsman - December 12, 2005 at 4:30 pm
John Armstrong is right. It’s the distinction between specific deterrence (“I won’t mug her, since she’s carrying”) and general deterrence (“I won’t mug, since you never know who’s carrying”).
Under ordinary circumstances, it is no one else’s business whether or not a law-abiding citizen is packing. And sentiments like these:
I generally support government recordkeeping of gun ownership as well as requiring technologies to enhance the traceability of discharged ammo to particular weapons
clash against the value of collective self-defense in America’s culture of gun ownership. Guns aren’t just for deterring muggers. It’s not only valuable that lots of Americans be armed, but also that they possess a substantial number of guns that the government doesn’t know about. Nor is this primarily a point about individual privacy interests. It is a point about checks and balances, the democratic distribution of power.
BTW, nice pic accompanying the post. Stainless 4″ barrel .357 Colt Python; a classy, accurate, American revolver. A bit large for a carry gun, though. I’d recommend a Ruger SP101 or Kahr K9 instead.
Brett Bellmore - January 10, 2006 at 6:44 am
“However, I generally support government recordkeeping of gun ownership as well as requiring technologies to enhance the traceability of discharged ammo to particular weapons.”
If there weren’t a long established pattern of such records being used for such confiscation, you might have a point. But paper “strong protections” are little assurance to a group whose civil liberties are under attack, when they’re asked for data making it easier to target them for such attacks, and know quite well it has been so abused in the past.
The cost to my 2nd amendment rights is just too much greater than the supposed benefits.
Kelly Kennett - January 10, 2006 at 10:06 am
The selective deterrence argument is on-point with regard to public availability of gun ownership records. The criminals simply look up the houses with no guns, then target them. Regarding concealed carry, the psychology of interactions with people, attempted theft of openly carried weapons, and machismo all come into play. For better or worse in today’s culture, seeing a great many sidearms in the mall is unsettling to some people; whereas, a concealed weapon causes no disturbance but is available to stop crime. Isn’t that precisely a privacy issue? With regard to the automobile analogy, there is no expectation of privacy when you drive around town, but you do enjoy that expectation for the contents of the closed compartments. Similarly, there is no expectation of privacy for your presence in a public place, but you do enjoy that expectation for the contents of your purse or what is under your clothing.
Andy Freeman - January 10, 2006 at 11:46 am
> However, I generally support government recordkeeping of gun ownership as well as requiring technologies to enhance the traceability of discharged ammo to particular weapons. This might be very useful in solving gun crimes.
Or, it might not. That sort of idea is not new and it has been tried. It didn’t work.
It would be nice to try new things, but as long as “reasonable gun control” advocates insist on defending things that haven’t worked, there’s going to be significant resistance.
Or, to put it another way, if you want to try something new, offer to get rid of something old. If guns aren’t your actual target, there’s no shortage of failed gun laws.
Anthony Argyriou - January 11, 2006 at 2:15 pm
Does the ruling in Brown vs SWP have any application in places which are politically hostile to the rights of gun owners? For example, in San Francisco, which has outlawed ownership of guns by its residents?
Bill Fason - January 12, 2006 at 3:37 am
One frequently encounters advocates of gun control making the argument that we should regulate guns like cars, “with registration and licensing.”
I’m tempted to embrace it as I would like for my Texas concealed handgun license to be valid in all 50 states. Once I point this out to would-be gun controllers, they invariably back peddle from their own regulatory model.
I will no more register the guns in my safe than I will the the books in my library – and for the same reason.
Crime - January 19, 2006 at 2:05 pm
Google, Guns, and Proof That I Think Like A Prosecutor
A while back, Daniel Solove and I were discussing at his excellent blog, Concurring Opinions, this issue: Can someone who supports gun registration oppose (with intellectual honesty) Google registration? I argued nay; he disagreed. Anyhow, during the c…
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