Guns in America: Background Check System Excludes Those on the Terrorist Watch Lists

In last week’s post Guns in America: Background Checks, I made the following statement with regard to the current National Instant Background Criminal Check System (NICS): “There is also one glaring omission from the list of people who will be denied the right to purchase a gun: Those on a terrorist watch list.” Several people have asked me about this and, when I’ve mentioned the omission to gun rights proponents, they’ve been either doubtful or incredulous. Well, this morning National Public Radio had a story on the exclusion of the those on terrorism watch lists from the NICS background check system.

But first, this video from al-Qaeda’s American spokesman Adam Gadahn:

So, no, the fact that background checks aren’t required to purchase weapons at a gun show is not a well-guarded secret. But what about the notion that the NICS system doesn’t prevent the purchase of a gun, from a licensed dealer, by someone who has been placed on one of the terror watch lists?

Here’s the story from NPR’s Alisa Chang (listen to the story here):

Even al-Qaida gloats about what's possible under U.S. gun laws. In June 2011, a senior al-Qaida operative, Adam Gadahn, released a video message rallying people to take advantage of opportunities those laws provide.

“America is absolutely awash with easily obtainable firearms,” Gadahn says, explaining that “you can go down to a gun show at the local convention center” and buy a gun without a background check.

Then a faint smile crosses Gadahn’s face. “So what are you waiting for?” he asks.

Under current laws, if a background check reveals that your name is on the national terrorism watch list, you’re still free to walk out of a gun dealership with a firearm in your hands — as long as you don’t have a criminal or mental health record.

Data from the Government Accountability Office show that between 2004 and 2010, people on terrorism watch lists tried to buy guns and explosives more than 1,400 times. They succeeded in more than 90 percent of those cases, or 1,321 times.

“It’s absurd that we allow people to buy unlimited AK-47s, AR-15s and Uzis, even if we feel they are too dangerous to be allowed on a plane, even after they've gone through a security check,” says Jon Lowy, a lawyer for the Brady Campaign, a gun control group.

But Michael James Barton, a White House counterterrorism official during the Bush administration, points out that there’s a lot more leeway to limit someone’s right to get on a plane.

“The U.S. Constitution specifically protects the right to purchase firearms. The Constitution has no specific right to use transportation of any mode,” Barton says.

Before the government can limit anybody’s Second Amendment rights, he says, it needs a pretty good reason. And in his experience, a lot of totally innocent people end up on the terrorism watch list — such as business associates, roommates or landlords of suspected terrorists.

“Some of them are merely individuals who have proximity to terrorism suspects and are not themselves the focus of any investigation or any suspicion whatsoever,” he says.

Barton says the terrorism watch “list” actually refers to several lists of names, including the “no fly” list. All of the lists are secret, and no one can control getting on or off them. Republican Sen. Lindsey Graham of South Carolina says that’s why the lists shouldn't determine whether someone should buy a gun.

“I think anyone who's on the terrorist watch list should not lose their Second Amendment right without the ability to challenge that determination,” says Graham, noting that the late Sen. Ted Kennedy showed up on the no-fly list in 2004 because a suspected terrorist was using the alias Edward Kennedy.

Gun rights supporters also ask: Why tip off an actual terrorist that we're on to him by telling him he failed a background check?

“We're gonna go, ‘Boy, we're so good, we prevented those terrorists from getting the guns.’ No, we didn’t! We prevented them from getting them from a legitimate source, where we had an opportunity to follow them,” says Richard Feldman, who heads the Independent Firearm Owners Association. “Now we don’t know if they're ever going to get them, when they get them, where they got them.”

But gun control supporters are scratching their heads at that logic. Why not just pass a law giving the government discretion to block a dangerous person on the terrorism watch list from buying a gun? The gun lobby has pushed back hard on that idea.

“This is yet another example of zealots on the far right of the gun movement throwing away the baby with the bath water,” says Mark Glaze, the director of Mayors Against Illegal Guns, which supports tighter gun laws.

Democratic Sen. Frank Lautenberg of New Jersey has tried since 2007 to push for legislation that would close the terrorism loophole. Under the bill, if a background check reveals a gun buyer is on the terrorism watch list, the U.S. attorney general would have the discretion to block the gun sale.

The Department of Justice under the Bush administration had supported the legislation.

The proposal was filed as an amendment to the gun control bill last week, but things ground to a halt in the Senate after every major gun control proposal failed.

First, I want to address an wildly inaccurate claim made in the NPR story. Michael James Barton, identified as a White House counterterrorism official during the Bush administration, says:

The U.S. Constitution specifically protects the right to purchase firearms.

Um, no, Mr. Barton. It doesn’t. Not even close. The Second Amendment actually says:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Do you see anything about a right to purchase in that language?* Nor do I. For that matter, I don’t see an exclusion in the Second Amendment for felons, the mentally ill, those who’ve engaged in domestic violence, or even children, to keep and bear arms. Yet, we don’t seem to have a problem with those exclusions, do we (well, other than some in the pro-gun movement who really do think that “shall not be infringed” is an absolute prohibition).

It’s probably also worth remembering that President Bush’s Department of Justice also supported adding people on the terrorist watch lists to the NICS system.

So what do you think? Which is worse: Allowing people who are on a terrorism watch list to legally purchase weapons or to (possibly) inconvenience someone who wants to purchase a gun but who has mistakenly been placed on a terrorism watch list? I guess I can see the problem if someone can find themselves mistakenly placed on this list with no way to get taken off. But if there is an appeal process, either to say “take me off the list” or even just “let me buy a gun” then I find that I’m not terribly sympathetic to the notion that the harm to the innocent purchaser outweighs public safety. Remember, of course, that opponents to expanded background checks have used “inconvenience” and “cost” as reasons not to close the gun show or private sale loopholes.

On the other hand, whether or not a possible terrorist would be blocked from buying a gun at a licensed dealer because of the NICS system is probably irrelevant. Why? Because as al-Qaeda’s spokesman noted in the video above, all a wannabe terrorist has to do is go to a gun show and avoid the background check system altogether.

So, if your Senator voted against the increased background check bill last week, be sure to call and thank them for being sure that terrorists still have easy access to guns. After all, we wouldn’t want to wipe that little smile off Adam Gadahn’s face, now would we? 

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*Barton is also being disingenuous when he says that “The Constitution has no specific right to use transportation of any mode” forgetting that the Supreme Court long, long ago held that freedom of movement was a fundamental right under the Constitution. So no, it doesn’t make reference to “any mode” of travel any more than it talks about a right to “purchase firearms”, but it does protect freedom of movement.