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.