Gun deaths are down. Gun crimes are down. And progressives still want to take your guns. To aid that purpose, and also because they think it will give Democrats a boost during election season, they are pushing legislation that would allow the Justice Department to forbid the sale or transfer of firearms to, they say, terrorists. Or maybe just to suspected terrorists. Or maybe to people on the federal no-fly list. Or maybe to all of these people. The Democrats have not been clear about just who would be prevented from purchasing firearms under the proposed law.
We’ll Decide Who Gets Guns, on a Rolling Basis
President Barack Obama said in his weekly address, “Right now, people on the no-fly list can walk into a store and buy a gun. That is insane. If you’re too dangerous to board a plane, you’re too dangerous, by definition, to buy a gun. And so I’m calling on Congress to close this loophole, now.” Presidential candidate Hillary Clinton also refers to the no-fly list when advocating for the gun sales ban.
On the other hand, the legislation itself, introduced most recently by Sen. Dianne Feinstein (D-California), is entitled the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2015.” Sen. Harry Reid (D-Nevada) said it must be passed to keep individuals on the terrorist watch list from buying firearms. But Feinstein herself has referred to both the no-fly list and the terrorist watch list when talking about the bill.
So which watch list does the Democrats’ gun ban rely on, and why the obfuscation? The Democrats aren’t going to give anyone a straight answer, but we can go straight to the bill’s text (Senate version, House version). It turns out that the gun sales ban is not tied to the no-fly list, as falsely stated by the president and Clinton and numerous other people, including journalists who have baked this false assumption into their writing. But neither is it directly tied to the terrorist watch list.
We’re Keeping a Private List
Instead, the relevant statutory text links the gun sales ban to individuals who are ”known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support thereof.” That language is cribbed from Homeland Security Presidential Directive/HSPD-6, which is what created the terrorist watch list (PDF). Thus, the bill gives the U.S. attorney general the discretion to decide whether a person meeting the terrorist watch list criteria should be prevented from purchasing a firearm.
The Democrats’ lie matters for four reasons. First, the terrorist watch list is much larger than the no-fly list. It varies over time, but there are approximately 1,000,000 people listed in the former, and somewhere around 47,000 people on the no-fly list. Feinstein defends using the criteria that creates a larger list by saying only a fraction of the million-or-so people on the terrorist watch list are U.S. citizens, but whether that’s a large or small fraction is classified.
That’s the second thing. We don’t have precise numbers because these lists are secret. At present, the government has no obligation to inform you that you have been placed on the terrorist watch list, and there are no statutory means to get off of the list. All of that is left in the hands of unknown and unknowable bureaucrats. Under this bill, the only way you might find out that you are a suspected terrorist is if you apply for a background check to purchase a gun and are denied. Even then, the legislation gives the government the discretionary authority to withhold its reasoning for why you were denied.
We’re Playing Loose With the Facts
Third, this will shock the president and Clinton, but people forbidden from buying a gun under this legislation will still be allowed to travel by air. This is because people on the terrorist watch list are not forbidden from flying. They get extra scrutiny at airports, but can come and go as they please, making the president’s pitch even more nonsensical. The terrorist watch list was never designed as a vehicle for adjudicating an individual’s rights or benefits in relation to the government.
Fourth, the terrorist watch list already gets pinged when an individual applies for a background check for a firearm purchase. Matches are passed to the FBI’s Counterterrorism Division, which may then investigate and block the purchase if it is illegal. Individuals on the terrorist watch list routinely pass this extra screening because the government usually lacks evidence to forbid the purchase. After all, that’s why these individuals are on a watch list, and not in a jail cell.
Thus, when Democrats say the no-fly list should be a no-gun list, they are misleading the public about the bill before Congress. Even Feinstein, who introduced the legislation, gets this wrong some of the time, willfully, according to one of her aides.
The fact that they are pushing for this law now is also pure opportunism. Feinstein introduced this particular legislation in February 2015. It didn’t go anywhere. Nor did it get any traction when it was introduced back in 2009, 2011, and 2013. That’s because, as discussed here previously, the law as written would violate both the Second and Fifth Amendments. Democrats obviously think the time is ripe.