Via email Mac asks:
Joe,
If those on the no fly list are to be prohibited from buying guns, what about those they already own? When will the government come for them?
Good question.
I don’t know the answer. I suspect that is a constitutional infringement the government doesn’t want to cross right now.
Something of a side note is that while researching this I learned there are two lists which I had merged into one in my mind. One is the the “No Fly List”. The other is “Terrorist Watch List.”
The National Counterterrorism Center runs a central repository of more than 1 million people called Terrorist Identities Datamart Environment, or TIDE. The TIDE database, which includes about 25,000 Americans as of 2013…
An unclassified subset of the TIDE database is made available to law enforcement as part of the Terrorist Screening Database. That database contains biographical and biometric information about potential terrorists and can be accessed by local, state and federal law enforcement officials who don’t have security clearances. As of 2011, that database was said to contain about 420,000 names, according to the FBI.
The Transportation Security Administration receives an even smaller list of people subject to travel restrictions drawn from the Terrorist Screening Database. In addition to the 16,000 names on the no-fly list in 2011, another 16,000 were on the selectee list. The selectee list doesn’t prevent individuals from flying but subjects them to extra scrutiny.
About 25,000 Americans on the terrorist watch list. According to the US Census Bureau in 2012 there were about 220 million people in the U.S. 21 and over. This means they suspect about one out of 9,000 people of being terrorists. And about one out of every 7,000 people on the lists associated with commercial flight. That isn’t as big a list as what some people have been saying.
The practical problem I see with the government attempting to “come for the guns” which the people on the lists already have is that how do they know which of the people on the list possess guns? If they don’t know which people actually have guns they would have to search their homes and any other place those people might have stored the gun(s). They can’t get a search warrant unless they have probable cause of a crime being committed, a description what it is they are looking for, and where they believe to find the object. “Guns in the home or car or storage unit because they are on this list” probably is going to have the judge frowning at you rather than signing it.
But the issue of blocking sales to people on this list is a different issue because it doesn’t involve the 4th Amendment. The 2nd Amendment is considered by many people to be a second class (if it is recognized at all) right. The 4th Amendment has a process in place which attempts to protect people from having this right infringed.
A comparable process to that proposed to the purchase of a gun being subject to a background check which involves one or more secret government lists would be to subject sales of religious and political books to the same background checks. Of course most people would claim it’s not the same thing at all. My response is, “You are absolutely correct. Ideas are far more dangerous than guns. Haven’t you hear of all the people murdered by those inspired by The Communist Manifesto, Mein Kampf, as well as the The Holy Qur’an and The Holy Bible?”
But to answer Mac’s question I think it will be quite a while before they start collecting those guns already in the hands of people on the lists. But I think it is a great question to ask of those advocating for restricting sales to such people. If they don’t bring up the 4th Amendment issues themselves then you bring them up. And then follow up with the 1st Amendment issues if such a background check were required for reading materials or church attendance.
I think we need everyone to revisit the complete definition of “Bill of Attainder”.
Of course, since the current POTUS is supposedly a Constitutional scholar he knows right well that any ‘list’ used to deny a group their rights is unconstitutional, but when has he ever shown that he (and apparently a sizeable portion of the rest of the government) gave one damn about the Constitution if it didn’t suit their purpose?
A few of our local anti-fanatics have cooled down a bit lately after I suggested they familiarize themselves with three things, 1) Kosovo Rules of Engagement. 2) 4th Generation Warfare, and 3) The Rule of Unintended Consequences. “Yes, I said, it’s true….we’re not gonna look for the poor cop who is caught in the middle, we’re gonna come looking for you. You’re the one who caused all this.”
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friends:
i don’t like the ideas of “lists” actuating constitutional infringements.
not too hard to imagine getting on a list for simply saying out loud that obama is a dumb shit, and a wanna be tyrant. and, to see that the 3.00 am visit would come shortly after.
in short, in spite of whatever short term superficial appeal that might have, in the long term it would be a trap, a snare and a delusion. to endorse such a “scheme.” i don’t trust the bastards, as far as i can throw them.
john jay
In addition to the 2nd and 4th Amendment issues, there are clear 5th and 14th Amendment (due process), and 6th Amendment (confrontation of accusers) issues. These lists are a Constitutional travesty, and we should be highly skeptical of their use for any purpose.
If little “o” gets away with this, restricting members of the no fly list from purchasing weapons, how long before everyone in the “non-existent” data base of gun purchasers from the last 10 or 20 years are put on the no fly list???
It’s not going to happen anytime soon. I think there are other things more worthy of being concerned about. “Universal background checks” (de facto gun registration) is my biggest concern.
Everything you said is true, but for one error.
You state that you can’t get a search warrant without “reasonable suspicion”.
The actual standard is “probable cause” (in the words of the Fourth Amendment), which is a higher standard. “Reasonable suspicion” is the standard for a Terry stop, which could lead to developing probable cause, but reasonable suspicion won’t get you a warrant. (At least, it wouldn’t when I was getting warrants. Who knows what will fly today?)
I don’t mean to sound pedantic, but the difference is real, and fairly important.
Fixed.
Thank you!
The distinction between those two lists is not significant. They both violate the Constitution in at least a half dozen ways. Not only do they violate much of the Bill of Rights, but also Article 1 Section 8.
The most obvious problem is that these lists are created by random bureaucrats, in secret, through a random secret process, using no standards that anyone can discern, and with no trace of due process anywhere to be found. The people responsible for creating and administering it belong in jail.
As for POTUS and the theory of him being a constitutional scholar, it isn’t clear he ever studied the constitution, or if he did, whether his goal was to figure out how to disobey it and get away with that.
I don’t disagree with you. But the question is what will the courts do and what is popular opinion? In that regard I think the lists will stand and be used. The best we can do at this time is to stop them being used for new purposes such as gun purchases.
At some point we may be able to eliminate the secret lists and that is a worthy goal. But to spend much effort on that now would be wasted effort and risk losing the gun issue because we would be regarded as “too extreme” or some such thing and totally ignored.
I really don’t believe there will be random door-to-door confiscations. I think the power brokers know this would lead to massive civil disobedience and outright civil war. No, it will be much more insidious. First will come the “voluntary” turn-in, like we saw in New York following the SAFE Act. Then, when you try to buy ammo on-line, when you go to the wrong gun show, when you visit and comment at the wrong blogs, you’ll be flagged. You’ll be picked up at work, or at a range. The arresting agents will make some vague mention of terrorism and militia and the witnesses will nod solemnly and go away, whispering they had no idea. And thousands will be disappeared this way.
Agreed.
It’s a head-fake. Get us fighting against this list business and “universal background checks” (i.e. private sale checks) starts to look like a reasonable compromise.
I am not a lawyer. But as I understand it, a “warrant” is something you’re able to get a judge to sign… and there are all sorts of judges.
So I’m not as comforted as you, Mr. Huffman, about the middle-of-the-night search warrants. If they want them badly enough, they’ll get them.
Perhaps it’s time to re-post your “Jew In The Attic” essay.