No, We Shouldn’t Use The No-Fly List To Decide Who Can’t Buy A Gun

The no-fly list is a flawed, arbitrary mess that has kept innocent people from flying for years. Using it to deny people rights recognized by the Constitution is, quite honestly, insane.

No-Fly List

In the wake of the shootings in Colorado Springs and San Bernardino, the President, Democrats in Congress, and others have once against focused on the issue of making changes that would strengthen the nation’s gun control laws and somehow stop the rash of mass shootings, which have not been as prevalent as some would have us believe, and gun violence, which has actually declined substantially over the years notwithstanding the media coverage that makes it seem otherwise. One of the proposals that seems to be gaining traction this time, no doubt because it has been poll-tested, is the idea of adding people on various no-fly and terror watch lists from legally purchasing firearms, an idea which President Obama seems to be self-evidently valid:

WASHINGTON, D.C. – President Obama is moving cautiously toward acknowledging that radical Islamist-inspired terrorism could be a motive for the mass shooting in California this week.

The president also used his weekly radio address to urge Congress to close what he called a “no fly” gun loophole.

The president said people on Transportation Security Administration’s (TSA) “no fly” list can walk into a gun shop and buy a gun.

“If you’re too dangerous to board a plane, you’re too dangerous to buy a gun,” the President said.

Notwithstanding the President’s argument, the Senate rejected the idea when it voted on a number of gun control proposals on Thursday:

The fallout from the murders this week in San Bernardino and at a Colorado Planned Parenthood clinic before that has followed the usual script: House Speaker Paul Ryan, R-Wisconsin, has pushed legislative efforts to improve mental health care; Democrats have offered measures to tighten rules governing the accessibility of guns.

Among them: an attempt by Sen. Diane Feinstein, D-California, this week to deny firearms and explosives to people on the Justice Department’s consolidated Terrorist Watch List.

This is a database created after 9/11 of people either known or suspected to be involved in terrorism. Among other roadblocks, it adds them to the government’s no-fly list, barring them from boarding an airplane. The George W. Bush administration supported a similar effort.

The GAO has found that between 2004 and 2010, about 91 percent of the gun purchases by people on the watch list went forward.

Feinstein has offered the legislation before and it met a similar fate this week, losing 45-54.Every Democrat but one – Sen. Heidi Heitkampf of North Dakota ‑ voted for it, while every Republican but one – Sen. Mark Kirk of Illinois, who is facing a tough re-election next year in a blue state – voted against it.

Feinstein blamed the defeat on the politically powerful National Rifle Association, which has opposed her measure in the past over the constitutional right to bear arm.

“If you need proof that Congress is a hostage to the gun lobby, look no further than today’s vote blocking a bill to prevent known or suspected terrorists from buying guns and explosives,” Feinstein said after the vote. “If you’re too dangerous to board a plane, you’re too dangerous to buy a gun.”

Sen. John Cornyn, R-Texas opposed her bill, arguing that it was unconstitutional. He offered an alternative that would authorize the attorney general to call for a three-day delay in a gun purchase by someone on the watch list and then a ban if deemed necessary. That also was defeated.

Critics argue that the watch list can wrongly include people and that banning anyone on it from purchasing a gun would violates their Second Amendment rights.

Republican presidential hopefuls Ted Cruz of Texas, Marco Rubio of Florida, Rand Paul of Kentucky and Lindsay Graham of South Carolina all voted against the Terrorist Watch List measure.

On the surface, the idea that people who are on a list that says that they cannot fly on an airplane that was created in the wake of the September 11th attacks are not barred from legally purchasing a weapon is one that likely doesn’t make a lot of sense to most Americans. After all, if the government believes for some reason that it’s too dangerous to let you on a airplane, then surely you should be considered too dangerous to own a firearm. The problem with this analysis is that it both mistakes the purpose of the no-fly list and makes assumptions about the accuracy of that list and the process by which someone gets on it that aren’t necessarily true. As a result, what the President, Senate Democrats, and others are essentially saying is that a flawed list that was created for purposes that have nothing to do with gun control or national policy toward guns, and which has a process for determining who gets put on the list that the government refuses to reveal should be used to deny people recognized Constitutional rights as if they were equivalent to felons with violent criminal records or others who have demonstrated quite clearly that they should be barred from owning weapons legally.

Virtually from the time that it was established in the wake of the September 11th attacks, there have been reports about people who quite obviously have no connection to terrorism or criminal activity finding out that they’ve been put on the mysterious list that bars people from flying, often not learning this fact until they’ve actually arrived at an airport and tried to get on an airplane. Indeed, a Google Search for “no fly list false positives” reveals some 65,000 entries that include links to such accounts, and the long, convoluted, and difficult process that a person who obviously shouldn’t be on the list must go through to get taken off the list, or just accept the fact that if they want to get anywhere they’ll have to find some alternate means of transportation. While the government is still quite secretive about how one might get on the list, it’s clear from what we do know that it does not take very much, and that raises questions about not only the list itself but also the appropriateness are using it for anything other than air travel monitoring. In a piece from July 2014, for example, The Guardian‘s Spencer Ackerman describes the various ways that a person could potentially end up on a list barring them from getting on an airplane. It would surprise many people, I think, to learn that what you post on social media could result in one getting put on the list, as could having been charged with a crime even if you are acquitted of all charges. Ackerman also notes that the standard by which someone ends up on the list falls far below probable cause or even reasonable suspicion that one may be a threat and, in the end, it almost seems as if the entire list is arbitrary. In a second piece that was posted at The Guardian earlier this year, Ackerman notes that the government has admitted in recent litigation that it uses so-called “predictive assessment” to put people on the list rather than any hard evidence, and there doesn’t seem to be much of any investigatory follow-up to determine if the assessment has merit. A July 2014 piece from The Huffington Post has a similar description of how the list is compiled and how one can end up on it, and notes that even just an anonymous tip from someone that isn’t followed up on could be enough to get someone on the list. Among other things you’ll find in that Google Search I noted above are numerous tales of people wrongfully put on the list who were forced to go through the long process of trying to get off of it, including a report from The Nation about two peace activists who discovered they were on the list when they tried to travel from San Francisco to Massaschusetts for a family visit. Not surprisingly, all of this has led to numerous lawsuits, including one in which a Federal District Court Judge in Oregon found last year that the process for getting off the no-fly was unconstitutional because, among other things, it failed to provide the due process rights guaranteed by the Constitution.

Given all of these issues over the years, the idea of expanding the no-fly list to allow its use for purposes other than controlling and monitoring air travel raises some rather obvious concerns.

For example, Paul Heroux, a Democratic State Representative in Massachusetts, wonders if we expand the use of the no-fly list to gun purchases then what shouldn’t it be applied to, and notes that a lot of the proposals we’re hearing right now seem to be grounded more in fear than logic and reason:

Along these lines of thinking, if this is good policy – and I am not yet sure if it is – should we also deprive someone who is on the no fly list welfare benefits? What about public housing? What about access to public college education? Could denying these things to a suspect push them over the edge to become a criminal?

If it is acceptable to deny someone innocent a firearms ID because it comes at the greater good of justice, along these lines of thinking, how about deprive them the right to appeal their placement on the no fly list? Would we torture suspects on the no fly list for information about ISIS or al Qaeda even if we are increasing the odds we are going to include someone who is a false positive and should not be on the no fly list?

This line of thinking is not unlike the question about getting rid of the death penalty because we may execute one innocent person.

Do we start depriving citizens of due process because we are afraid of what others might do?

(…)

As of right now, terrorists are winning. Terrorism is about causing terror or severe crippling fear. Terrorism is the deliberate use of violence of threat of violence intended to cause fear for political purposes.

But alas, we can’t be a virtuous righteous nation only when it is easy and convenient, or when we are not afraid. We can’t claim to be free but then violate Fourth Amendment rights, or Second Amendment rights, or the Eighth Amendment, or any other rights when we are afraid. If we deny rights when we are afraid we are not free from fear or the terrorist.

I am not concerned about who is or isn’t on the no fly list; lists can and are often wrong. But I do want to keep guns out of the hands of people who will abuse them. I’m not sure if a list created from unknown methods that has proven to be wrong on many occasions is a good way to achieve that.

Eugene Volokh, meanwhile, argues quite convincingly that bills like the one Senator Feinstein is backing are arguably unconstitutional:

The Feinstein proposal would have provided that the government could bar gun sales to a person if two conditions were met:

“the Attorney General” “determines that the [buyer] is known (or appropriately suspected)” to have been involved in terrorism-related conduct “or providing material support support or resources for terrorism,” and

if the Attorney General “has a reasonable belief that the [buyer] may use a firearm in connection with terrorism.”

That’s a very low bar — denial of a constitutional right based on suspicion (albeit “appropriate[]”) about a person’s connections, and belief (albeit “reasonable” belief) about a person’s possible future actions. Indeed, most of the time this would come into play only as to people for whom the government doesn’t have proof of terrorist activity. If the government had proof, presumably the people would be prosecuted. (If the government has proof but isn’t prosecuting because it hopes that quietly watching them would help catch more or bigger fish, then barring gun purchases would be a bad idea, since that would alert the person to the government’s plans.)

I can’t see how that’s constitutional. And though the bill would have let the buyer go to court to challenge the attorney general’s decision, the attorney general would simply have had to show by a preponderance of the evidence that the two elements were satisfied — that the attorney general appropriately suspected the buyer and that she had a reasonable belief about what the buyer may do. Plus the evidence supporting the attorney general’s position might never be shared with the buyer, which may make it impossible for the buyer to fairly challenge it, or aired in open court.

The “no-fly” list itself can be criticized on these grounds; see this article at Reason (Scott Shackford) or the ACLU’s critique. Courts have been hearing challenges to that list.

But the problem would be even more serious when we’re dealing with the denial of an explicitly guaranteed constitutional right, and not just the denial of the admittedly very important ability to fly on airplanes.

The arguments that both Volokh and Heroux strike me as being quite persuasive. As I said above, the idea that someone who has been deemed ‘too dangerous to fly’ should also not be able to buy weapons has an intuitive ring to it that seems correct. That’s why I suspect that polling on the issue would show that most Americans support the idea. The fact, however, that we have learned quite clearly over the past fourteen years that the ‘no fly list’ is riddled with errors and inaccuracies, that one can end up on the list because of mistake or due to seemingly innocuous activity, that there is no notice provided to American citizens who are put on the list that this has happened to them and no opportunity given to prevent that from happening, that most of them time people do not find out they have erroneously been put on the list until they actually get on an airplane, and that the process to get off the list is convoluted, seemingly arbitrary, and lacking in due process, argues strongly against using this list for any purpose other than the one it was created for. Additionally, it’s worth noting that The  and thus would not have been impacted by the proposal that President Obama and Senator Feinstein are making. All of these criticisms, of course, raise questions about whether the no-fly list in its current form is proper to begin with, but that is a different issue for another day. For the purposes of this argument, though, advocating the use of such an inherently flawed process to deny innocent American citizens their rights is little more than demagoguery and suggests that the people backing it, including the President of the United States, are not serious about addressing a problem but instead interested in scoring political points.

FILED UNDER: Barack Obama, Campaign 2016, Congress, Guns and Gun Control, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Slugger says:

    When Donald Trump becomes President he’ll introduce sure-fire methods to eliminate terrorists, terror sympathizers, terror relatives, and other undesirables from gun ownership, airline flights, and government handouts. Sure, he’ll be tough, very tough.

  2. jd says:

    In 1823 the Supreme Court recognized freedom of movement as a fundamental Constitutional right, but we still use the no-fly list to force people to drive or pedal cross-country. I would have no problem using it to restrict gun purchases until it’s finally done away with.

  3. Stan says:

    I’m reading the writings of a man gripped by an idee fixe, and it’s sad to see.

  4. grumpy realist says:

    So someone is so scary you can’t possibly allow them on a plane, but it’s perfectly fine to allow them to load up on multiple guns and umpteen boxes of ammunition?

  5. Liberal Capitalist says:

    Look…

    I fly a lot. Way too much.

    To make my life easier, I went through the process of getting TSA Pre-check.

    So now, I zip though the airport.

    I would see the same background check required for weapons.

    * pro – once passed, simplifies acquisition, needs to be redone every 5 years.

    * Cons – 2nd and. folks will lose their minds, saying that this restricts. NRA & gun manufacturers will scream that it’s restricting trade.

    If you pass the background check, great. if you choose not to do it, 9 month delay in purchase.

    Makes sense.

    Will never happen.

  6. walt moffett says:

    If it leads to electoral victory individual rights and liberty take second place. Who knows this might flip the House and Senate.

  7. Tyrell says:

    Some people have been put on these lists by mistake, simply because they have the same name as some one who is some sort of terrorist. I remember several years ago a high school student was put on one of the list and was picked up and sent to Leavenworth without any kind of hearing or trial. His parents got him out after a few weeks only through the intervention and hard work of their congress rep. It was the thing of similar names. I think that a person should be informed that they are on one of the lists and be given the right to contest it. If the government is wrong, they pay legal fees. It is up to the government to make sure that the people on the list meet certain criteria.

  8. Tony W says:

    @Tyrell:

    Some people have been put on these lists by mistake, simply because they have the same name as some one who is some sort of terrorist.

    So What? Somebody is temporarily barred from purchasing a weapon until they can clear up the paperwork? That does not sound very onerous, unless they have some last-minute thing planned for which they’ll need the gun?

  9. Tony W says:

    @walt moffett:

    individual rights and liberty take second place.

    I’m unclear who’s rights and liberty you are referring to. Would that be yours to carry an AK47 into a 7-11 because ???, or mine to stay alive while I’m purchasing a medium slurpee?

  10. MarkedMan says:

    @Tony W: Tony, just remember, if you are in a “Stand Your Ground” state and an armed man walks into the 7-11 causing you to fear for your life you have the right to beat him to death with whatever is handy before he can draw. Later, if the prosecutor charges you they would have to prove you didn’t fear for your life, not the other way around. Just saying.

  11. Tony W says:

    @MarkedMan: That’s a good point, better hang out by the bottled beverages. Don’t think the Twinkie would make a good blunt instrument….

  12. Stan says:

    Let me get this straight. We’re going to restrict the intake of Syrian refugees (unless they’re Christian) because they might be terrorists, in the same way Jews fleeing Nazi Germany might have been communists; we’re going to denounce the Moslem religion as intrinsically evil; we’ll label terrorism as Islamic terrorism, in case anybody thinks the terrorists are Unitarians; we’ll keep track of Moslems using a national registry, so they can be rounded up and sent to internment camps if necessary, to keep company with the Hispanics; we’ll deny them the right to build mosques, particularly if the mosques are near ground zero in New York City; we’ll do all this stuff and we’ll give them the right to buy military grade weapons. And then, if there’s another massacre like the one in San Bernadino, we’ll pray.

  13. Rafer Janders says:

    @Tony W:

    That does not sound very onerous, unless they have some last-minute thing planned for which they’ll need the gun?

    “The Simpsons,” episode “The Cartridge Family.” Homer is at a gun store.

    HOMER: Just give me my gun.

    CLERK: I’m sorry, but the law requires a five-day waiting period. We’ve got to run a background check.

    HOMER: Five days? But I’m mad now! I’d kill you if I had my gun.

    CLERK: Yeah, well you don’t.

  14. Stonetools says:

    This to me sounds to me like an argument for either a better no fly list, or for a separate no gun list. Even better of course would be universal background checks that included such criteria as whether the person buying a gun was mentally stable or had any connections with known terrorist or extremist groups, but alas,at this point that is far too rational a step for the American political class to contemplate.
    BTW, in an earlier thread I predicted a Doug Mataconis post on precisely this issue -pats self on the back :-).
    No where in the post is there a suggested remedy for just how the government is to guard against terrorists who take advantage of America’s lax gun laws to acquire powerful firearms and attack civilian targets. I guess we are supposed to hope and pray the terrorists don’t continue to do that?

  15. Paul L. says:

    @Tony W:

    Somebody is temporarily barred from purchasing a weapon until they can clear up the paperwork?

    It took 10 years for this women to do that.
    But that is a feature not a bug to the gun grabbers.
    Just like the IRS taking years to approve Tea party groups tax exempt status while immediately approving progressive groups.

  16. RWB says:

    There is another interesting aspect of the no fly list. It has been reported a few times since it’s inception that some known terrorists are intentionally left off of the list so that the govt can track their movements without exposing that we have identified them. So, by extension, I suppose that if you might be a terrorist based on your web browsing history, no gun for you; If we know you are a terrorist, and we think you don’t know we know, then go right ahead and buy all the guns you want to. What could go wrong?

  17. Barry says:

    @Paul L.: “But that is a feature not a bug to the gun grabbers.”

    Why didn’t the GOP eliminate the no-fly list, then?

    “Just like the IRS taking years to approve Tea party groups tax exempt status while immediately approving progressive groups.”

    ‘BENGHAZIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII!’

  18. Guarneri says:

    @Liberal Capitalist:

    I think your “con” misses the point. The gun confiscators will simply take your reasonable proposal, put it in their pocket with a “thank you” and then declare “hey, wait, I’ve got a new complaint…”

    The confiscators, having shown their hand that only complete confiscation will satisfy them, have sewn the seeds of opposition. Don’t believe me? What organization promotes and conducts gun education. the NRA. And what advocates scream and throw around charges hysterically and incoherently? What advocates already have most of the reasonable laws they claim to desire, in CA, yet use this event to call for more? And so it goes. It’s no different than a “women’s right to choose” morphing over time into partial birth abortion and body parts farming.

  19. JKB says:

    I remember the argument by the government was that an individual did not have a right to fly in an airplane so therefore they had not right to due process when they were banned. It was argued that the due process hearing would expose intelligence sources and methods to the plaintiff, if not the public.

    Yet, there is no argument that doesn’t involve usurping the Constitution as written and historical rights first recorded on paper in Magna Carta to do away with the due process right for an enumerated right.

    So, Hillary, Obama, Feinstein, et al, are either seeking to reveal intelligence sources and methods by opening the No-Fly and Terror Watch lists up to due process challenges

    Or

    They hope to usurp and overthrow the Constitution and time immemorial rights upon which the nation was founded by denying Due Process for the denial of enumerated Constitutional Rights.

    Either option reveals them as enemies of everything this country stands for. But I guess you would say that would fundamentally transform America.

    And the way it works for the intelligence/homeland security types is they don’t reveal their surveillance by denying the subject anything, but I do suspect that they have alerts in the NICS system for when the named individuals get run. It is even possible, for their flags to result in immediate denial and further adjudication by the state authorities without revealing the intelligence agencies interest. That gives the FBI, etc. a few weeks, during the adjudication, to do whatever they want in regards to the individual.

    As it was explained to me when I was sending the names of foreign nationals visiting our facilities and no response indicated clearance as the intel types never reply, if a name popped, that person would just not show up having been interdicted by some agency.

  20. JKB says:

    @Liberal Capitalist:

    Never happen.

    I have a handgun carry permit for my state that took a month or so for them to run a good and proper background check. However, that buys me nothing when I go to purchase a firearm. I still have to do the whole process like I’m fresh off the street. The only people who can buy without the NICS check are police officers.

  21. JKB says:

    @Stonetools: background checks that included such criteria as whether the person buying a gun was mentally stable or had any connections with known terrorist or extremist groups, but alas,at this point that is far too rational a step for the American political class to contemplate.

    All that is possible, you just have to notify the individual of the court hearing on their mental stability or connection to known terrorist/extremist groups, present evidence before the judge, answer the challenges posed by the individual and have a fair adjudication by the judge.

    Or as we simply call that: Due Process.

    Then if the judge determines the individual meets the objective criteria that indicate gun possession is not in the interest of society, the individuals name is entered into the NICS system and when the background check is called in, they are denied the purchase of a firearm.

    Oh, wait. That’s what we have now.

  22. stonetools says:

    @JKB:

    ER, no we don’t. You and I know that anyone of us can go to a gun show in a bunch of states and buy any gun we want, no questions asked, and the seller would sell you a gun even if you identified yourself as Cthulhu of the Elder Gods. Heck, you can go to a gun shop and if you pass the NCIC check, you can get an AR15,even if you told the shop owner straight up Allah told you to get the gun.
    So, nope.

  23. Dave D says:

    I never thought I would agree with JKB on much of anything but the suspension of due process in this approach. I feel the same way about the no fly list in general. When you have no or little recourse to fight an arbitrary and life changing act of being put on a list, it is a recipe for misuse. There are already enough cases of false positives including John Lewis and Ted Kennedy. This is something we should discontinue and not expand into other arenas of our lives.

    I am also suspect of the mental health database some of these politicians seem to be trying to implement on this. It sounds like a HIPAA violation and will likely affect people who are actively managing their mental illnesses. It might also cause certain types of people to not seek treatment because of labeling and stigma. And people who are mentally ill are more likely to be victims of violence than perpetrators. The unmedicated or those not actively managing their illness will avoid being flagged and are more likely to be of concern.

    This is one of those topics where there is so much emotion on both sides and like abortion makes actual debate on the issue hard. We could do small things that would have a big impact like actually cracking down on straw purchasers or going after the shops that largely cater to them. But even with increased background checks we are still going to be in a country where access to guns will be easy and affordable, and short of banning or gun grabbing that will not change. I’m not trying to make perfect the enemy of good, but there is little these will do since we have seen time and time again the legal purchase of these by seemingly law abiding citizens until they weren’t. The only way to effectively stop this would be through cracking down on the second amendment rights of individuals to the extent that fourth amendment rights have been curtailed, which is not an acceptable policy position to a majority of Americans. And you can argue the original intent of the 2nd all you want but as it is currently being interpreted after Heller this is what it is. I think we should be far more cautious with what seem like easy solutions when it comes to reducing rights because as time and Snowden have shown us even banal and innocuous legislation can be used to justify curbing rights in unintended ways.

  24. David M says:

    The idea that being able to purchase a gun is more important then being able to fly is pretty ridiculous.

  25. Gustopher says:

    Does anyone else get the feeling that we are hitting a tipping point in the culture with respect to guns? Similar to the confederate flag?

    Two or three more well structured sleeper cell plots where the model citizens purchase a large number of weapons legally and then go on a terrorist rampage — and I think we will be restricting guns a lot. Homegrown Christian terrorists won’t do it, but ISIS inspired terrorists will change the debate to: Does the second amendment give the individual the right to own an arsenal?

    If I were a gun enthusiast legislator, I would want to get ahead of that, and be pondering how to address that without impacting the guy with a gun for self-defense, or the lady who likes shooting things for sport.

  26. Gustopher says:

    @David M: Since there are other ways of traveling which aren’t blocked, it may pass Constitutional muster.

    But there are other forms of arms than semi-automatic weapons which could likewise be available to allow a major restriction on guns to pass muster.

  27. Guarneri says:

    I see we have some “insane” people here.

    Well at least they aren’t going to prosecute people for offensive free speech against Muslims. That insanity is reserved for our shameful Attorney General……..

  28. Tony W says:

    @Guarneri:

    The confiscators, having shown their hand that only complete confiscation will satisfy them,

    WTF are you talking about? I’m as liberal as they come and I just want the damn things registered and owners held liable for actions with their registered guns.

    Your straw man doesn’t hold.

  29. walt moffett says:

    @Tony W:

    Actually, my right to the whole tedious due process thing when the government in its wisdom decides for classified reasons to add my name to a utter top secret drop dead before reading list of naughty boys and girls.

    If one wishes to amend the 2nd amendment go for it, elections and legislation while tiresome and distasteful are the way to do it

  30. Gustopher says:

    @Guarneri:

    The confiscators, having shown their hand that only complete confiscation will satisfy them, have sewn the seeds of opposition

    I don’t want your guns. I want you to bear the full responsibility of your guns, and I want government to know who is stockpiling guns.

  31. Tony W says:

    @walt moffett: Nothing is stopping that from happening today.

  32. Lit3Bolt says:

    When the Right is arguing that the 2nd Amendment enshrines a terrorist’s rights to buy guns at will, we’ve officially gone past satire and parody on this issue.

    Let’s make gun ownership mandatory. Better yet, let’s make guns and ammunition free. Let’s erase all serial numbers from all guns and bullets, because the 2nd Amendment. Let’s ban all gun laws and gun regulations, so everyone can mail-order automatics whenever they want.

    At this point, the 1st Amendment has more restrictions and liabilities on it than the 2nd.

  33. JKB says:

    @Lit3Bolt: enshrines a terrorist’s rights to buy guns at will

    Where are you seeing people arguing that anyone adjudicated to be a terrorist shouldn’t be denied the right to purchase or possess a firearm?

    All that has to be done is to present the evidence to an independent judge and permit the accused to rebut that evidence, then have the judge render a decision based on established laws and procedures.

  34. NRA says:

    @Lit3Bolt:

    Let’s make gun ownership mandatory. Better yet, let’s make guns and ammunition free. Let’s erase all serial numbers from all guns and bullets, because the 2nd Amendment. Let’s ban all gun laws and gun regulations, so everyone can mail-order automatics whenever they want.

    I like the cut of your jib… We’ve got a place for you art the NRA.

    After that, I have some friends at the Tobacco Industry that would like to talk to you as well.

  35. Matt says:

    @stonetools: You can buy explosives tanks and more from a private person too.

    Did you hear you can buy veggies or meat that hasn’t been inspected? Omg we need to ban private transactions NOAW!!!

  36. Matt says:

    @Gustopher: My guns have done nothing and I bear the full responsibility when I hunt with them. It’s not my guns you should be so worried about.

  37. Matt says:

    @Matt: I also heard people buy illegal drugs in private too wtf!??? That should be like illegal and stuff!!

  38. Tony W says:

    @Matt:

    My guns have done nothing and I bear the full responsibility when I hunt with them. It’s not my guns you should be so worried about.

    That’s great. I also want you fully responsible for them the rest of the time as well. If they are stolen, you are responsible unless you report it. If some kid gets ahold of a one of your guns and shoots the neighbor’s window out, some sort of penalty applies (not to exclude forfeiture of your right to own guns).

    I want responsible people, and ONLY responsible people, to own guns. Apparently that’s radical liberalism in today’s dystopian world.

  39. stonetools says:

    @Matt:

    I’m for keeping guns out of the hands of people who can’t or won’t use guns responsibly. You?

  40. JKB says:

    @Tony W: I also want you fully responsible for them the rest of the time as well.

    So let’s follow your logic. If some kids steal your car and are injured or injure someone else, you are responsible. If a 8 yr old takes your hammer and smashes a window, you are responsible, not the caregiver of 8-yr old. If an angry person picks up a fork from your table and stabs his companion, you are responsible.

    So basically, your goal is to make ownership/possession so onerous so that no one will privately own anything? There is, of course, already tort liability for firearms, etc., that are not reasonably secured from those who would misuse them. Apparently, you want absolute liability regardless of the actions of the person who misuses the tool to overcome reasonable precautions.

    So if you put the cookies in a jar on a high shelf, are you responsible if a child you are not responsible for is afforded the opportunity by a negligent caregiver to get a ladder to reach the cookies?

  41. stonetools says:

    The real problem here is the twisting of a provision meant to deal with an eighteenth century problem with twenty first century reality. I’m sure when a bunch of entitled white guys-and it’s always entitled white guys-sat down in college dorms and said, “Let’s campaign to have an unlimited right to buy and carry guns around read into the Second Amendment” it seemed like a cool idea. It may have made sense in a world where everyone was like them. Unfortunately, that’s not our world.Listen to Volokh’s conclusion:

    I somehow doubt that would-be terrorists would be much stymied by being disqualified from legally buying guns. But in any event, it seems to me that any such disqualification should come only after showing that the person has done something bad, not that he’s suspected of doing something bad and of intending to do something bad.

    Here’s the problem with Volokh’s conclusion:the first bad thing the San Bernadino shooters did was to mow down 31 innocent Americans with Eugene Volokh’s favorite toys. What if there is a whole category of people whose first bad thing they want to do is to use guns to kill lots of innocent people?
    Note that the terrorists don’t give a sh!t about the gun debate. All they want to do is to use the deadliest weapons they can get hold of to kill the largest number of civilians they can. And in America, the deadliest weapons they can get hold of are guns. The terrorists have figured out that it’s very difficult to get professional grade bombs or explosive materials ( because we have sensibly banned them). Guns, though, are different. You can show up at any gun show or gun shop, and so long as you don’t have a criminal record (and most would be terrorists DON’T) you can load up a shopping cart with any number of high powered firearms, and all the ammunition you want , buy it, and walk out an hour later, no questions asked.
    That policy simply makes it too easy for terrorists ( the terrorist plot to attack a shopping center in, say, Virginia, practically writes itself). THAT, folks, in 21st century reality-which neither, Doug, Jack, Matt or any gun nut can wish away. The realistic policy, therefore, is to screen for purchases of the deadliest category of firearms. David Ignatius:

    Politicians need to rethink their reflexive invocations of the Second Amendment, and the idea that the gun lobby is too powerful to challenge. Governors who want to protect their citizens from terrorism should focus less on blocking immigrants from Syria and more on limiting a potential terrorist’s ability to purchase assault weapons and explosives. Congress should think about having a “no-buy” list for semiautomatic rifles that’s equivalent to the no-fly list. State and local legislators should look for ways to screen potential shooters — with new background checks and permit requirements.

    The Constitution, properly interpreted, doesn’t stop that. The Second Amendment is entirely about the ability of the states to raise militias (that was a big deal in 1791). Insofar as there is an individual right there, it’s limited to having guns for the purpose of serving in a state militia. Let’s go back to interpreting the Second Amendment properly, pass sensible gun safety policy, and leave the current interpretation of the Second Amendment back in libertarian discussion forums where it belongs.

  42. stonetools says:

    @JKB:

    Apparently, you want absolute liability regardless of the actions of the person who misuses the tool to overcome reasonable precautions.

    Beat that straw man! Beat it good!

  43. Grumpy Realist says:

    I don’t think Daesh is stupid. With our gun laws the way they are, we’re just begging for more cases like San Beredino all over again. How do the Second Amendment absolutists plan to solve this problem? Make sure that everyone is armed? I’m sure the police will love that…gee, maybe we should mandate that if you’re a terrorist you have to wear a black hat and if you’re a good guy you need to wear a white hat?

    Have fun, everyone!

  44. al-Ameda says:

    This was political kabuki of the highest order.

    All that happened here was that Democrats called Republicans bluff on all this “we care about terrorism more than the president does” bulls***. What the end result showed us is that Republicans are willing to let anyone have a gun, and that in Republican Land there are no acceptable gun regulations.

    Okay, back to our regularly scheduled dysfunctional Congressional environment,

  45. gVOR08 says:

    @stonetools: For decades there’s been a mini-industry within RW legal foundations cherry picking and inventing a Libertarian friendly interpretation of the Second. I’m sure that, given time, they can manufacture evidence that the 1791 Slave Patrols state militias were happy to accept crazy people into their ranks along with known British loyalists.

    Gary Wills had this pegged 20 years ago,

  46. gVOR08 says:

    @gVOR08: Alps see Gary Wills Moloch.

    The fact that the gun is a reverenced god can be seen in its manifold and apparently resistless powers. How do we worship it? Let us count the ways:

    3. It has the power to distort our constitutional thinking. It says that the right to “bear arms,” a military term, gives anyone, anywhere in our country, the power to mow down civilians with military weapons. Even the Supreme Court has been cowed, reversing its own long history of recognizing that the Second Amendment applied to militias. Now the court feels bound to guarantee that any every madman can indulge his “religion” of slaughter. Moloch brooks no dissent, even from the highest court in the land.

  47. stonetools says:

    @gVOR08:

    I might point out that Switzerland actually “has” a well regulated militia, with every able bodied male doing military service and maintaining his own (military grade) weapon. Needless to say, they don’t have the same libertarian “free for all” approach we have in the USA. And they have good gun safety laws too.

    In order to purchase most weapons, the purchaser must obtain a weapon acquisition permit (Art. 8 WG). Swiss citizens over the age of 18 who are not psychiatrically disqualified nor identified as posing security problems, and who have a clean criminal record can request such a permit.

    It’s a pity we didn’t go that route rather than the nonsensical Federalist Society libertarian approach we have now.
    Its pretty clear to me to that the Swiss model is much closer to what the founding fathers actually had in in mind than the current US policy.

  48. Scott F. says:

    @NRA:

    Now, you’ve given away that you’re not the real NRA.

    Lit3Bolt argues for making guns and ammunition free and I know that if there wasn’t a massive profit to be made from the unconstrained sale of ever more firearms, the NRA wouldn’t give a sh*t about the 2nd Amendment.

  49. anjin-san says:

    @JKB:

    So let’s follow your logic. If some kids steal your car and are injured or injure someone else, you are responsible. If a 8 yr old takes your hammer and smashes a window, you are responsible, not the caregiver of 8-yr old. If an angry person picks up a fork from your table and stabs his companion, you are responsible.

    A car, though it can be dangerous, is not a purpose-built killing machine. Nor is a hammer, or a fork. As a gun owner, I know that I have chosen to possess items that are very dangerous, that can kill and maim by intent or by accident. If they are stolen, I have a responsibility to report the theft immediately to the police and to my insurance company. In that set of circumstances, my liability ends. In all other circumstances that I can think of, it’s my responsibility to be certain that my guns do not harm anyone.

  50. Tony W says:

    @anjin-san: Yep – anjin nailed it. Guns ain’t hammers.

    But to answer your ridiculous question, if an 8 year old took my hammer and smashed a window, I’d probably feel morally obligated to fix things anyway because I was a moron and left my hammer laying about where a kid (a person without true agency) could find it and do damage.

  51. mtnrunner2 says:

    Doug, the no-fly list sounds preposterously unconstitutional in the first place, let alone getting off the list. Reminds of the “state of emergency” ploy that dictatorships pull, and then the “emergency” lasts for 50 years.

    The principle we use for law in a free republic is you have wide latitude for action, including actions that we may not like, or may be dangerous. For example we let would-be murderers walk the streets all day long, and everyone regards it as perfectly normal. Then if something happens, both the perpetrator and anyone who enabled them is culpable to some degree.

    Holding merchants partially responsible after the fact would “encourage” them to do the checks necessary, without restricting anyone’s freedom up front. That responsibility would then be determined by the usual standards we apply in jury trials.

    Of course Obama doesn’t understand a thing about individual rights, so I certainly don’t expect him to care about freedom of action/movement.

  52. al-Ameda says:

    @mtnrunner2:

    Of course Obama doesn’t understand a thing about individual rights, so I certainly don’t expect him to care about freedom of action/movement.

    Exactly, there are homegrown terrorists, and there’s nothing we can do about them until a terrorist act takes place. Obama is a collectivist, he simply doesn’t understand this.

  53. Jon Davis says:

    At first I thought the no-fly list was a good idea for blocking guns. Except that at one point I got on the “watch list”. Why? Because for a period of my life I got on a mailing list for income tax protesters, and I was vocal on there for a while. I got pulled off the watch list in short order once I showed up for a flight and waited for a few extra minutes while they were on the phone looking at me funny and getting my flight cleared. So it wasn’t the no-fly list, it was just a “watch list” and it had limited effect.

    But here’s the thing about the no-fly list. The Executive branch can put anyone on the no-fly list for any reason at all, or even for no reason. Their motivations are at their own discretion. And since there are no laws about the selection process, the courts can’t take that away. There is literally n o recourse.

    This is a backdoor attempt for the executive branch to sneak in and block 2nd amendment rights to any individuals they deem unfit, they just throw them on the no-fly list.

    Literally. No. Shame.