I’m old enough to remember when liberals protested against using secret government lists to deny Americans their rights. Surprisingly, so are a couple of liberal media outlets. The Los Angeles Times editorial board rebuked Barack Obama and Democrats for attempting to use the no-fly list as the basis for denying constitutional rights to Americans — even while expressing sympathy with the efforts:
One problem is that the people on the no-fly list (as well as the broader terror watch list from which it is drawn) have not been convicted of doing anything wrong. They are merely suspected of having terror connections. And the United States doesn’t generally punish or penalize people unless and until they have been charged and convicted of a crime. In this case, the government would be infringing on a right guaranteed by the U.S. Constitution — and yes, like it or not, the right to buy a gun is a constitutional right according to the U.S. Supreme Court.
How certain is it that the people on the two lists are dangerous? Well, we don’t really know, because the no-fly-list and the broader watch list are government secrets. People are not notified when they are put on, nor why, and they usually don’t discover they have been branded suspected terrorists until they try to travel somewhere. …
What’s more, it’s not clear how much impact Feinstein’s law would have. The broader watch list, which is actually a database maintained by the FBI’s Terrorist Screening Center, apparently had about 480,000 names on it in 2011, according to the FBI, and it has since swelled to about 1.1 million names, according to the ACLU. Of those, the vast majority are noncitizens living overseas; the number of American citizens on the list is believed to be fewer than 10,000 people.
That’s important because federal law already bars gun sales to most people who are not U.S. citizens or lawful permanent residents or holders of valid visas, which means the vast majority of the people on the suspected terror list would already be barred from buying a firearm in the U.S. even without Feinstein’s law. That leaves us with about 10,000 American citizens (and some legal residents) who, under the proposed law, would be barred from exercising a constitutional right. That gives us pause.
There’s another point that gives the LAT’s editors “pause” as well, which is why this argument is being made in the wake of a terrorist attack it wouldn’t have prevented:
It is worth noting that the terrorist-list proposal would not have affected the San Bernardino attackers because neither of them was on the watch list, at least as far as has been reported. And although backers of the measure cite Government Accountability Office data that show more than 2,000 people on the list bought firearms from 2004 to 2014, there’s no available information on whether any of those weapons have been used in a crime, let alone an act of terrorism.
In other words, it’s a political hobby horse, not a solution to either gun violence or terrorism. Even more surprisingly, Slate’s Jamelle Bouie concurs, but has even less sympathy for this approach than the LAT. He also pokes holes in the argument about so-called “assault weapons” at the same time:
There’s no doubt assault weapons—there’s no official definition for the term, which makes identifying them for prohibition difficult, if not impossible—are scary to many Americans, especially with their presence in high-profile shootings like the massacre at Sandy Hook Elementary in Newtown, Connecticut, or the theater killings in Aurora, Colorado. But out of 73 mass killers from 1982 to 2015, just 25 used rifles of any kind, including military-style weapons. Most used revolvers, shotguns, and semi-automatic handguns. Which gets to a related point: We might feel safer if we ban “assault weapons,” but we won’t be safer. Of the 43,000 Americans killed with guns since 2010, just a fraction—3.5 percent—were killed with rifles.
Bouie goes further than the Times in criticizing the no-fly list, and wonders why Democrats want to tie themselves to this “constitutionally dubious” tool:
If you’re on these lists, you’re presumed guilty until proven innocent, with no due process and little recourse.
The list is conceptually flawed, and using it to deny gun ownership is wrong on its face. Add racial and religious profiling to the mix—the people on the list, including Americans, are disproportionately Arab or from Muslim countries—and you have an anti-gun measure with deep disparate impact.
Bouie goes on to argue that this strategy for Democrats is a dead end politically as well as in policy. He makes the rather obvious point that the consensus in the US is to defend gun rights, and that broad and almost entirely irrelevant demands that run against this consensus makes it even less likely that action can be taken on the margins, where Bouie argues better legislation might actually improve matters. I’d argue that the issue in both gun violence and terrorism has more to do with a lack of enforcement of existing laws and a refusal to address underlying cultural and economic issues with rational policy, but Bouie’s argument is at least respectful and cognizant of reality — two qualities missing from Obama and his fellow Democrats over the last few days.
Roll Call also offers a wake-up call to Democrats pushing for executive action:
Despite his pleas that changes could help prevent mass shootings like the one that killed 14 on Wednesday in San Bernardino, Calif., President Barack Obama seems resigned that he’s mostly powerless to overhaul the country’s gun laws.
Obama has urged stricter gun laws for much of his tenure, doing so during funerals and vigils for victims during his presidency. But with just 13 months remaining in office, even Obama appears resigned that the “common-sense gun safety laws” for which he often has advocated are out of his reach.
Pushing for a gun ban based on secret government lists with almost no due process is not a “common sense gun safety law.” It’s a dangerous step toward tyranny by executive whim. Kudos to Bouie and the Los Angeles Times for recognizing it.