Bench Memos

Terror Watch Lists Shouldn’t Be the Basis for Whether One Can Purchase a Firearm

As I point out in today’s San Francisco Chronicle, being on a secret terror watch list should not and can not be a basis for blocking the legal purchase of a firearm. In addition to the issues I raise there, it only worsens when the false positives are considered.

How bad are the problems with false positives? Much has been made of the size of these watch lists, but there is an important point to understand about the difference between names and people. For example, there are many ways to translate the name of the former Libyan strongman, Muammar Qaddafi. One-hundred twelve of them, in fact. Now let’s say he had 19 aliases in an attempt to avoid detection — the average number that the 9/11 hijackers used.

That is over 2,000 names just to address the threat from one single individual. Now imagine how many false hits there are for other innocent people who have similar names to the target or any of the identities the target has created or stolen.

If a terrorist in Syria has an alias similar to your name, should you be blocked from buying a gun? The history of these watch lists are full of obviously false positives, including infants. Common names are cause for trouble too, sending innocent Muhammad Alis, David Smiths, and Mary Johnsons of the world onto these lists.

One already cannot purchase a gun if they are felons or have been adjudicated as mentally ill under very specific circumstances. Those lists are used every day, and each entry has been adjudicated with due process. These so called terror watch lists have no adjudication and no due process, and thus should not be used to deny an otherwise legal purchase protected under our Constitution. 


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