Gun Buffs And Fourth Amendment Lovers Unite!
posted by Dan Filler
Why haven’t two groups who adore individual rights come together? I would expect gun rights advocates (we’ll call them the NRA as shorthand) and privacy advocates (let’s name them the ACLU) to agree that government intrusions into personal and family space are bad. For some reason, the NRA has not bought into the Fourth Amendment part of this agenda. At the same time, I’d think the ACLU would benefit – politically, at least – by bringing the NRA into its civil liberties tent. And nothing about the gun rights agenda seems antithetical to the goals of the ACLU.
I can think of a few reasons why the NRA hasn’t joined the privacy bandwagon. First, NRA members/gun lovers may see themselves as “anti-crime” and they may see a weak Fourth Amendment as good anti-crime policy. This makes sense as long as they don’t imagine gun ownership as a crime. Second, the NRA may not like the public relations consequences of supporting privacy rights. Most of today’s Fourth Amendment cases involve the privacy rights of drug dealers and other unpopular characters. The NRA may not want to align itself with these miscreants, even on legal issues. Too many people already connect guns with crime.
I think the best explanation of all is that NRA members believe they’ll never need these protections – an assumption that is based on what I’d term a Second Amendment strategy. I suspect that the NRA believes legislatures won’t ban guns and, in any case, courts will strike such laws under the Second Amendment. There are two problems with this analysis. First, it is far from certain that courts will enforce a personal right to possess any and all firearms. There is little judicial support for this broad Second Amendment view, though some commentators have certainly made the case. Second, it is quite plausible that some jurisdictions – particularly states with substantially urban populations – will eventually prohibit entire classes of guns. And as Americans become more and more comfortable with governmental intrusions, generally, regulation of guns may become much more imaginable. At that point, gun owners could find great utility in the Fourth Amendment.
Why hasn’t the ACLU done more to connect with gun supporters? Perhaps because its urban progressive membership has long supported aggressive gun control as a crime control method. Like the NRA, the ACLU has to cater to its big donors even if its legal strategy would benefit from new coalitions. Also, I imagine the ACLU leadership itself suffers from big city bias. Big city folk just don’t see why the rest of America cares so much about guns. City dwellers don’t hunt. They haven’t grown up with guns and they wouldn’t give up anything if guns were banned. For many city people, only two groups of people have guns: criminals and cops. Here’s the problem with this view: gun control, even if it might have been effective ex ante, would now probably be of minimal utility in reducing crime. Does anyone seriously think that a ban on, say, handguns would significantly decrease the number of weapons in the hands of criminals? Maybe by 2050, but I doubt much sooner. (I concede that gun control could potentially decrease homicides in domestic disputes.) Gun regulation is one of those crime control strategies that doesn’t work well in a retrofit.
It would make a lot of political sense for these two groups to start dating. Gun rights advocates would strengthen their hand if they snared only a small element of the civil liberties community. It would also give them a two-Amendment approach to defending gun rights. And Fourth Amendment supporters desperately need the access and credibility offered by the gun rights lobby. Currently, gun lovers don’t feel much need to expand their base. Over time, though, I fear we’ll see an ever more aggressive government leaching into manifold aspects of our individual lives. Our current “strong executive” is using a blend of technological advances and fear mongering in its drive for broader social supervision. Future executives may well continue this effort, but there are no guarantees that individual gun rights will always be part of this agenda. (A well armed public is, potentially, much harder to control.) This may be my own dark imagination, but I think an NRA – ACLU coalition is almost inevitable in the long haul. It might be far easier to begin bridge building today.
January 30, 2006 at 1:22 am
Posted in: Criminal Procedure
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Responses (5)
Dylan - January 30, 2006 at 2:20 am
“And as Americans become more and more comfortable with governmental intrusions, generally, regulation of guns may become much more imaginable. At that point, gun owners could find great utility in the Fourth Amendment.”
I somehow doubt that a rallying cry of “let’s defend legal means to hide evidence of unlawful behavior” will be very successful. Most Fourth Amendment worriers want the innocent not to be inconvenienced in the search for the guilty, not to put up barriers to make morally praiseworthy law breakers harder to nail.
Joe Patent - January 30, 2006 at 11:07 am
Dan,
You wrote that “it is quite plausible that some jurisdictions – particularly states with substantially urban populations – will eventually prohibit entire classes of guns.” Not only is it quite plausible, but it already is happening.
NYC has long-standing restrictions on gun ownership. D.C. (albeit not a state) has banned ownership of handguns and severely restricted the ability to own other firearms. A recent Fourth Amendment challenge to the D.C. law failed at the district court level. See Parker v. District of Columbia, 311 F. Supp. 2d 103 (D.D.C. 2004). I believe the appeal is pending.
Simon - January 30, 2006 at 11:32 am
Joe,
That strikes me as being curious, principally because one would think that laws in DC, far more so than a state, would have to pass extra scrutiny for gun laws under the Second Amendment. I believe that there has been some theorizing that the Second Amendment doesn’t bind the states (bizarre though that sounds), but it unquestionably binds the Federal government’s administration of DC, I would think. So how could a law in DC “bann[ing] ownership of handguns and severely restrict[ing] the ability to own other firearms” be squared against the Second Amendment’s obstinately clear imperative that “the right of the people to keep and bear arms, shall not be infringed“?
Anonymous - January 30, 2006 at 12:09 pm
I don’t think the real story is quite as evenly balanced as your post suggests. Specifically, I think you’d find far more support for a strong 4th Amendment jurisprudence within the NRA community than support for the an individual rights interpretation of the 2d A within the ACLU community. I also doubt quite seriously that the NRA or its membership is in putting all their eggs in a “2d Amendment strategy” basket. As a former member of the NRA (through the little-known “lifetime family membership” purchased by my father), I’d suggest that the NRA’s official silence on 4th Amendment issues is almost entirely political, and is designed to present a more reasonable face to the public.
There are large swaths of the NRA membership for whom the 4th Amendment is of paramount importance. Although it’s probably a minority in absolute terms, a huge chunk of the NRA membership is inherently suspicious of government intrusions of any sort. In fact, a good bit of the more extreme literature focuses approximately equal attention on 4th Amendment issues. Of course, many of the folks writing this stuff also live in rural Montana (is there any other kind?) and maintain stockpiles of MREs, semiautomatic “assault” rifles, ammunition, and survival gear, so they’re not exactly the folks Wayne LaPierre wants gracing the cover of his magazines.
In addition, the NRA enjoys an uneasy relationship with police organizations, which tend to be a mixed bag, at best, with respect to 2d A issues. They have gotten enough traction in recent years to overcome or neutralize opposition to concealed carry laws in most states, but I doubt that a vigorous NRA 4th A campaign would sit well with the Fraternal Order of Police or local sheriffs’ associations.
On the flip side, your analysis of the ACLU seems to be more or less spot-on. I’d submit that the VAST majority of ACLU supporters, whether within the target donor base or not, are at best indifferent and at worst directly hostile to the very concept of guns. Because there is at least a facially reasonable argument that the 2d A is intended to express a group right, I doubt you’ll ever see strong 2d A support from the ACLU, at least not unless/until the core rights about which the ACLU does care are legitimately in jeopardy at the hands of a quasi-dictatorial government (and no, the Bush Administration doesn’t qualify, notwithstanding the overheated rhetoric).
As for me, I think I’ll just run off to fire a few rounds from my Sig-Sauer while reading the latest local ACLU newsletter. If I’m particularly outraged by the latest episode of government misconduct, I can take my frustrations out on a paper target at 25 yards.
will09 - February 10, 2007 at 4:06 pm
I can’t for the life of me understand why one would choose to protect less than all of the rights enumerated in the bill of rights. How can a rational person support the ACLU or the NRA without supporting the other?
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