“Why aren’t we talking this week about bringing this Congress together on an issue like making sure that individuals who are on the terrorist watch list can’t buy guns?” Connecticut senator Chris Murphy asked that question shortly before he filibustered for gun control measures on June 15. A few days before, Omar Mateen, an ISIS gunman, had killed 49 people and wounded 53 more in a gay nightclub in Orlando.
Keeping guns from terrorists isn’t controversial, but how you go about keeping guns out of the hands of terrorists matters a great deal. Murphy was invoking a 2015 proposal by Senator Dianne Feinstein that amounted to a blanket ban on gun purchases for those on the terror watch list. Democrats unsuccessfully rallied around Feinstein’s amendment following the San Bernardino terror attack in December, and the problems with it are considerable.
For one, America’s terror watch lists are bloated and notoriously inaccurate. Everyone from Senator Ted Kennedy to The Weekly Standard’s Stephen F. Hayes have found themselves on the “no fly” list—a 2007 audit by the Justice Department found over half the 71,000 names on the list may have been placed there erroneously. Further, the perceived threat from those on the watch list isn’t as big as it might appear. There are 1.1 million people on the most expansive watch list, and of those only 25,000 are U.S. citizens or legal permanent residents. It’s already the case that the FBI is alerted every time someone on the watch list attempts to buy a gun.
Still, many of those on this watch list have never been convicted of a crime and by denying them specifically enumerated rights, Feinstein’s proposal made a mockery of due process. Technically, those subject to Feinstein’s ban could challenge it in court, but her amendment went so far as to establish an unusual standard for burden of proof heavily stacked in favor of the government.
The GOP alternative to Feinstein’s proposal, on the other hand, was quite reasonable. The legislation, sponsored by Senator John Cornyn, would allow the federal government to delay the purchase of firearms for someone on the watch list up to 72 hours. The government could use the delay to go before a judge and demonstrate probable cause for blocking the sale, a process very similar to obtaining a search warrant. The NRA supported this proposal—and so did two Senate Democrats. Nonetheless, Cornyn’s proposal needed 60 votes to pass and got only 55.
In spite of the December impasse, Feinstein has now approached Cornyn and the two are trying to forge a compromise. We hope a suitable one can be found so Democrats can agree to a proposal that doesn’t eviscerate the Fifth Amendment in the name of tweaking the Second. But if liberals once disdained secret government lists created by the Bush administration, they now seem to be embracing them: The latest word is Feinstein has expanded her proposal to cover anyone who’s been on the watch list at any point in the last five years.
While that gets hammered out, it’s worth saying a word or two about the inanity of the national gun conversation forced upon us after every tragedy. There’s little factual evidence that gun control measures are a pressing concern, much less a necessary response to terrorism. Omar Mateen wasn’t on the terror watch list, nor was San Bernardino killer Syed Farook. And while much has been made of the fact that Omar Mateen used a militaristic “assault rifle,” such guns operate no differently from a typical hunting rifle. The rate of gun homicides has been cut in half over the last two decades. As of 2014, the FBI reports that six times as many people were killed with knives than rifles. And nearly three times as many people were killed in fist fights.
And yet, in his first statement after the Orlando attack President Obama invoked gun control, knowing full well that it would be divisive. For Obama, fighting domestic political opponents is preferable to explaining why the FBI failed—repeatedly—to adequately investigate Mateen or to otherwise take account of the fact that ISIS had inspired the worst terror attack on American soil since 9/11. Ever the opportunist, Hillary Clinton wasted little time endorsing the Feinstein plan. If she wants to argue that merely being under investigation by the FBI is cause enough to curtail someone’s rights, we have ideas about which of Clinton’s own rights should be restricted, starting with her eligibility for high office. Donald Trump avoided saying anything shortsighted about guns, but that might have been preferable to his actual first response upon hearing about 49 dead bodies, which was a tweet literally congratulating himself.
America has become a place where there are seemingly no causes more important than counterpunching political rivals and seeking tactical partisan advantage. Following a national tragedy, we should seek to strengthen our collective resolve, not lash out with well-rehearsed complaints about our fellow citizens. America can survive terror attacks. It may not survive the inability of our political leadership to unite around solutions consistent with our constitutional values.
