Earlier this November, Brooklyn Borough President Eric Adams made the following claim: “A three-year review of a social media profile would give an easy profile of a person who is not suitable to hold and possess a firearm” (Foundation for Economic Education, “New York Lawmakers Want to Screen Gun Buyers’ Social Media History for Hate Speech,” 11.06.2018).
This is not a simple throwaway statement, either. Adams is currently working with New York State Senator Kevin Palmer to draft legislation giving the police such power. We can tackle this claim in a few steps.
First let’s lay the groundwork: No matter how you personally feel about guns, good or bad, fun or dangerous, the United States Constitution recognizes a limited individual right to own a gun and to use said gun for lawful purposes. In Caetano v. Massachusetts (2016), the Supreme Court ruled that this right applied to all weapons in common use, not just weapons available as of 1789.
In other words, the scope of the Second Amendment is not restricted to muskets and flintlock pistols, just like how the Fourth Amendment, the right to be free of unreasonable searches, is not limited to just “papers and effects” as described in 1789. The Fourth Amendment applies to your phone and your computer, requiring the police to obtain a warrant before they invade your privacy, and the Second Amendment applies to modern weaponry in the same vein.
In regards to the First Amendment problems that come up, we must remember that speech is separated into two categories: protected and unprotected. Most all speech is protected, with the main exceptions being true threats, defamation, fraud and incitement, all of which are rigorously defined as to make it expressly clear what speech falls into those exceptions.
This raises the question: What would a review of a social media profile look for? Searching for unprotected speech during a gun background check would be asinine, because finding such speech wouldn’t be grounds for denying the person a firearm, but rather sending the person to prison. If someone made a true threat, then they should be referred to the justice system to undergo legal action, not denied a gun license by a bureaucrat at a glorified DMV. Moreover, this dilemma raises further questions about what types of speech should disqualify a person from owning a gun, because defamation is unprotected speech, but I see no reason why a person who slandered someone else is inherently a danger to others and unable to own a firearm.
“But,” I hear you say, “maybe they aren’t just looking for unprotected speech, but speech that would suggest a history of violence or maybe hateful speech directed at protected classes.” This, I concede, is probably the point of the bill. After all, I think we can probably agree that if we all had our druthers, people who say things like “all women must die” and “Jews are termites” would not have guns.
But—and you will hate me for saying this—those statements are protected speech, and we do not reduce anyone’s freedoms for speech that we just don’t like. If we allow someone to remove a right we have, based upon the protected speech we make, it’s not really protected, is it? If you think that this bill will be narrowly tailored enough and that the people in charge of distributing gun licenses will be discerning enough, then by golly, do you have another thing coming.
Let’s take a potential example in which the legislators actually try to tailor this law to avoid sweeping up hundreds of examples of clearly non-dangerous speech and assume that they only look at speech which denigrates a protected class or someone based on an immutable characteristic. This seems okay on the surface, but it quickly falls apart in practice.
Under such a law, someone who supports the Confederacy or neo-Nazism (that “or” is inclusive, by the way—the two are definitely not mutually exclusive) might be unable to buy a gun, but so might someone who is just a huge fan of Dukes of Hazzard and has their flag (which is the Confederacy flag) as their profile picture.
A person who tweets out Hitler quotes might very well be a Nazi, but they could also be a historian specializing in the historical linguistics of leaders during WWII. These examples might seem contrived, but I’m sure that the government is great at noticing individual idiosyncrasies. That’s obviously why it has so many standardized forms.
If you think this lapse is minor, then consider phrases like “men are awful” and “#cancelwhitepeople,” both of which denigrate classes of people based on immutable characteristics (in this case, sex and race). Under this law, people who say such statements on social media wouldn’t be able to buy guns, but they certainly aren’t dangers to society, and there is no reason for the federal government to infringe upon their rights.
If you truly are anti-gun, however, you wouldn’t mind this over-breadth. After all, you don’t want anybody to have guns, so collateral damage would function as your collateral benefit. In that case, let me propose a different experiment. The right to keep and bear arms is expressly spelled out in the Constitution on equal footing with freedom of religion, the press, speech, the right to a fair trial, to be free of unreasonable searches and seizures, to be free from incriminating yourself and all other enumerated rights.
Replace “hold and possess firearms” with any of these other rights and see if you still support this bill: “A three-year review of a social media profile would give an easy profile of a person who is not suitable to practice their religion”; “A threeyear review of a social media profile would give an easy profile of a person who is not suitable to have a fair trial”; “A three-year review of a social media profile would give an easy profile of a person who is not suitable to vote.” Look at this now and tell me genuinely if this is okay. This is not okay, not by any stretch of the imagination. This is not a gun rights issue. This is a rights issue.