The Corner

Law & the Courts

No, We Should Not Prohibit Those on the Terror Watch List from Purchasing Guns

In response to On The Other Hand

Jonah writes:

It’s rare that I take Barack Obama’s side against Charlie Cooke’s, but I’m inclined to agree with the president on the narrow merits of his new talking point about the terror watch list and gun buying. 

Fair enough. I’d like to take these objections one by one. Jonah says:

Charlie worries about the due-process rights of people on the terror watch list. Fair enough. But it’s worth noting that such rights are folded, bent, and mutilated when it comes to air travel already. We’re searched without probable cause. We’re denied the right to carry firearms, etc. We tolerate these, and other indignities, because there’s a compelling state interest to protect the flying public.

For a start, I don’t think that this is a meaningful use of the word “rights.” Airlines are private. Constitutionally, you don’t have a “right” to take a gun into any private place. Moreover, the public part of the flying experience (the regulations governing the airlines, the airport security, etc.) is not bound indefinitely by the Second Amendment. Some time and place restrictions on the right to keep and bear arms are acceptable and have always been acceptable. In the early republic, states often made it illegal to take firearms to polling places, for example.

The due process question, however, is an entirely separate one. We are talking here not about uniformly applicable limitations on an individual right, but about a government program that deprives free people of that right without any due process at all. When Obama and co. say “suspected terrorists,” they don’t mean people who are subject to a warrant or people who have been arrested or people who have been charged. They don’t mean people who have been convicted, either. Rather, they mean people whose names the government has written on a list. That’s simply not acceptable. There are almost one million names on that list, nearly 300,000 of which are linked to no terrorists groups at all. My name could find its way on — either by mistake or because someone took a dislike to me. So could yours. And then what? Then, disgracefully, we would see our rights restricted — or delayed indefinitely — without ever having seen the inside of a courtroom.

Jonah adds:

It’s absolutely true that the terror watch list makes mistakes. Our friend Steve Hayes was on it for a while (a fact that still causes me to chuckle). But we still tolerate the existence of a terror watch list, even though it’s arguably pretty rough on our constitutional rights as well.

Again, I think this is the wrong way of looking at this. It’s not the existence of the list that’s the issue. If the federal government wants to write down the names of people it thinks are a bit dodgy, it can do so. What it should not be doing, however, is using that list in a civil context. Personally, I am skeptical as to whether it should be allowed to stop people from flying if they are marked, but I accept that the legal case here is trickier. With enumerated constitutional rights, it is not.

Later, Jonah added in an update:

I said if I was missing something I was open to correction — and I did miss something so I am correcting. I conflated in my mind (and my post) the Terror Watch List with the no-fly list. These are different things. The TWL is a much bigger, messier, thing. So I think I’d want to think and read up more before agreeing that it should be a no-gun-buying list as well. But on the basic principle I was — messily — addressing, I’m going to hold my ground. I think if the government has good cause to bar you from exercising your right to travel — at least in the form of air travel — it probably has good cause to put a hold on your gun buying. The key phrase is “good cause.” You should also be allowed to appeal the decision in a clear, inexpensive and open process. I don’t think the Feds should have the plenary and arbitrary power to say “you can’t buy a gun” for no good reason.

The problem with this is that “should” isn’t “is.” As it stands, there is no means by which to “appeal the decision in a clear, inexpensive and open process.” It’s a total disaster. Stephen Hayes only got off the list, recall, because a colleague of his happened to interview a member of the cabinet. Most people don’t have those connections.

Even if there were such a process, I don’t think this is a road we want to go down. If there’s not enough evidence to put out a warrant for somebody’s arrest, there’s not enough evidence to take away his unalienable rights. Simply put, the question of whether the government has “good cause,” as Jonah puts it, simply cannot be decided by the government. It has to be decided by an impartial body. That’s why we have courts. I’d like to hold onto them, if possible.

Ultimately, this is a cynical ploy — an attempt for Democrats who are seen as soft on both terror and guns to score political points in the wake of an attack. In my view, it should be treated as such.

N.B. Practically speaking, the idea seems redundant to me — as CNN confirms, “the FBI is notified when a firearm or explosives background check involves an individual on the terrorist watchlist” — but even if it weren’t, I’d be staunchly opposed.

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