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.