Obama’s ‘Suspected Terrorists’ Gun Ban Makes for Great Sound Bite but Terrible Policy

By Adam Johnson / AlterNet

Sunday night, President Obama threw his weight behind a legislative effort in Congress to prevent “suspected terrorists” from being able to purchase guns. The law, born no doubt from Democratic frustration to move the needle on gun control, has garnered widespread support from Democrats and is even making some gains among Republicans, including a reluctant Chris Christie.

In short, it would use the current no-fly list as a proxy for “suspected terrorists” who, by virtue of their potential terror-like properties, ought not to have weapons. (This list is estimated to include roughly 47,000 people based on the latest figures, but the total number is impossible to know since the list is secret. A larger “terror watch list” is estimated to include upward of a million.)

Preventing jihadists from obtaining weapons, especially in the wake of the San Bernardino mass shooting, is superficially a common-sense step in preventing another such tragedy, while creating a mechanism to keep deadly weapons out of the hands of those the government suspects may be plotting terrorism within American borders. There’s only one problem: the proposal makes absolutely no sense.

First, there’s the pesky matter of what exactly a suspected terrorist is, an axiom the president and pro-Democrat media outlets appear to have glossed over entirely. In a tweet Monday, President Obama insisted, “If you’re too dangerous to board a plane, you’re too dangerous to buy a gun.” But “too dangerous” according to whom?

For virtually the entirety of the Bush administration, opposition to the no-fly list was a core tenet of liberals and civil libertarians in the United States, and for good reason. The list is secret, arbitrary and disproportionately affects Muslims and people of Arab descent. The oversight and due process is razor thin, and false positives — the most famous was the late Senator Ted Kennedy in 2004 — are notoriously common. If people want to appeal their position on the list they can do so to the Department of Homeland Security, but they are not entitled to an in-person defense or the right to call character witnesses. Put simply: the no-fly list is a civil liberties nightmare and there’s no reason to think the terror gun list would be any better. Who is and isn’t a “suspected terrorist,” according to the text of the bill, is entirely at the whim of the Attorney General, who:

1. “…determines that the [buyer] is known (or appropriately suspected)” to have been involved in terrorism-related conduct “or providing material support support or resources for terrorism,” and

2. “…has a reasonable belief that the [buyer] may use a firearm in connection with terrorism.”

This is a dubious legal standard as Eugene Volokh of The Washington Post lays out:

That’s a very low bar — denial of a constitutional right based on suspicion (albeit “appropriate”) about a person’s connections, and belief (albeit “reasonable” belief) about a person’s possible future actions. Indeed, most of the time this would come into play only as to people for whom the government doesn’t have proof of terrorist activity. If the government had proof, presumably the people would be prosecuted. (If the government has proof but isn’t prosecuting because it hopes that quietly watching them would help catch more or bigger fish, then barring gun purchases would be a bad idea, since that would alert the person to the government’s plans.)

The no-fly list has always been based on a troubling assertion of pre-crime by both the Bush and Obama administrations. The American Civil Liberties Union, which has been fighting the no-fly list for over 14 years, is still at a loss as to what the core logic of the list really is. False positives and violation of due process aside, why do we have a “terror” purgatory where someone is too dangerous to be trusted on a plane, yet not dangerous enough to detain for a crime?

“At what point do we actually take action against them if they’re under what we think of as passive surveillance?” Tim Sparapani, former senior legislative counsel for the ACLU, asked The Washington Post. “If they’re too dangerous to be put on a plane but not too dangerous for us to arrest them, what exactly is this list about?”

What is it about? Democrats have stopped asking but the question never went away.

One of the common responses to this objection is that lawmakers could reform the no-fly list itself; give it more oversight. This is the hope of the ACLU, which have thus far taken no position in hopes such an eventuality is possible. An ACLU spokesperson told Buzzfeed’s Chris Geidner, “There is no constitutional bar to reasonable regulation of guns, and the No Fly List could serve as one tool for it, but only with major reform.”

While the ACLU remains vague on what such reform would look like, it’s important to note that no concrete proposals to reform the no-fly list have been offered by any of the law’s major backers. Such reform remains in the realm of wishful thinking, and in many ways, would render such a list moot. Part of the appeal of the no-fly list is its low evidentiary bar and its secrecy; take these things away and it’s unclear whether lawmakers would find such a list useful at all.

Another common objection is that gun ownership isn’t a right and is thus not worth protecting. While it’s reasonable, and quite common, to hold this view, individual gun ownership is a right both Obama and the Supreme Court insists is real and worth protecting. The ACLU is correct to note that “reasonable regulation” of gun ownership is entirely routine and legal, but the precedent remains nonetheless: are we comfortable tethering constitutional rights to secret lists doled out by the Executive Branch? Would we be comfortable doing so under a President Trump? While further legislation would be necessary for such measures, the precedent at work here should cause pause among civil libertarians.

By accepting the core logic of a no-fly list —and inextricably linking it to public safety for the foreseeable future—liberals are accepting one of the more pernicious and counterproductive legacies of the Bush era and codifying it into bipartisan consensus for generations. To those who believe secret, due process-free lists that strip people of rights and privileges are a bad thing, this is probably not worth the minor safety gains the bill may or may not actually provide.

The second objection is there’s little evidence such gains would even be manifested. The law is largely in response to the San Bernardino shootings but we have no evidence the shooters, Syed Farook and Tashfeen Malik, were even on the no-fly list. Just like the flood of laws after the death of Caylee Anthony that made not reporting a missing child a felony would have done nothing to actually prevent her death (she wasn’t missing, she was dead), this law is in response to crime that the law itself would have done nothing to prevent. This is the hallmark of knee-jerk legislation, which might be useful election-year fodder against the Republicans, but does not good policy make.

It’s understandable why Obama would want to reach for this compromise. The GOP has been militant and lockstep in its refusal to back even the most common-sense gun control measures. In the wake of another horrific mass shooting, activists and politicians—no doubt acting in earnest—are reaching for something, anything, to move the needle in the direction of more gun control. Since the legislative and ideological momentum is difficult to budge, they have fashioned a GOP wedge issue that provides a false choice: Which do you care about more, fighting ISIS or protecting the NRA? On its face, it’s a brilliant piece of agitprop—exposing hypocrisy at the heart of Republican gun fetishists—but its core assumptions, that those on the list are actually “terrorists” or that it would make a dent in 12,000 annual gun deaths a year, doesn’t stand up to the most cursory of reviews.

Democrats and gun safety advocates are right to be angry. They’re right to want to, in the words of the president, “do something.” But this course seems more poll-driven than policy-driven. Gun-control activists should continue using the bully pulpit in Obama’s final months and expanding their ground game to push for more background checks, assault weapons bans and other broadly popular measures instead of blowing the righteous, post-San Bernardino outrage on token, ultimately pointless efforts.