In a political press release, Sen. Heinrich tells us that he backs legislation to put people who are on the terror watch list (TWL) on a Federal no-buy list for explosives and guns. Further, he quotes a GAO statement saying "known or suspected terrorists pass a background check to purchase a firearm or explosives 91 percent of the time."
First of all, that is a significant misreading of the GAO statement. What it actually gives are the number of people who bought firearms/explosives who are on the TWL. That doesn't necessarily mean they are known or suspected terrorists by any legal process that would pass the laugh test in a real court. It merely means they found themselves on Federal intelligence list to which the public has little access as far as obtaining redress, and often, little or no knowledge of why they are on the list to begin with.
As anyone who has followed the argument knows, it is easier for an innocent party to get on that list than it is to be removed. Hundreds of thousands find themselves on that list, some for a decade. Since it is primarily an intelligence list, petitioning or suing to be removed is often met with government secrecy rather than due process. Of course as Orlando shows, one can be deemed not a terrorist after an exhaustive investigation and still end up as a mass shooter. But as far as lists are concerned, there is one list, based on public information and due process, that Omar Mateen should have been on: the NICS, or National Instant Criminal Background Check System. As the New York Times and other media have reported, he was apparently a domestic abuser; that could have qualified him to be flagged as a no-buy person. Unfortunately, his first wife, whose family had to help her flee Omar, never pressed charges. Life and law are not so simple as making lists.
The bill that Mr. Heinrich supports, SB 551, removes none of the legal challenges to due process that are present in the workings of the TWL. Therefore, this largely secret, star chamber process should not be used to abridge an enumerated constitutional right, in this case the 2nd Amendment. Indeed, the ACLU has long said it should not be used to prohibit a person from boarding a plane unless the government designs a better way for people to challenge their status on the list.
"...The recently proposed laws seek to preclude anyone from purchasing a firearm who is on the No Fly or Terrorist Watch Lists. These lists have no vetted legal standard defining how one gets on the list, let alone how to get off of it (providing you even know you are on the list). These proposed laws directly violate an individual’s Fifth Amendment right to due process, and quite possibly their Sixth Amendment right to know their accusers, the charges against them, and to be able to provide witnesses and refute the charges. All of this with the purpose of denying someone of another Constitutional right - their Second Amendment right to bear arms..." Dan Oliver, LA Daily Post
Call Senators Heinrich and Udall and reiterate what the ACLU has long said: if we are to use this list to control people's lives under the rationale of public safety, whether to board a plane or buy a gun, first fix the due process considerations. In a phone call to Mr. Heinrich's staff, I suggested appointing Federal attorneys with security clearances to (aggressively) represent citizens on the TWL in closed Federal court so that these people have representatives who can argue their case from inside the wall of secrecy. I imagine there are other ideas as well. But the bottom line? Let's not throw out the Bill of Rights with the bathwater.
Latest from ACLU: The Use of Error-Prone and Unfair Watchlists Is Not the Way to Regulate Guns in America
Somewhat unrelated. Point vs. counterpoint Dept.
Australia shows some gun bans work
Australia’s 1996 Gun Confiscation Didn’t Work – And it Wouldn’t Work in America
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| From Baker and McPhedran 2007, BRIT. J. CRIMINOL. (2007) 47, 455–469 The Aussie gun buyback program started in 1996 |
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