Gun Owners Under Watchful Eyes

Saturday, January 23, 2010

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I remember back in 1992 and 1993 when U.S. Rep. Major Owens, D-N.Y., tried to do away completely with our right to Keep and Bear Arms. It goes without saying what I thought of Owen`s goal. But, at least he didn`t lie, or even try to trick anyone about what he was trying to accomplish.

Instead, Rep. Owens went about his business in the manner prescribed by the Constitution. He proposed a constitutional amendment that would have repealed the Second Amendment --if he could have convinced two-thirds of both houses of Congress and three-fourths of the state legislatures to go along--just as the 21st Amendment repealed the 18th Amendment's prohibition on alcohol. Fortunately, he went down swinging.

Rep. Owens' efforts set him apart from Sen. Frank Lautenberg, D-N.J., author of the most fundamentally un-American, Constitution-disrespecting firearm bill introduced in Congress in my lifetime or yours--S. 1317, the so-called "Denying Firearms and Explosives to Dangerous Terrorists Act."

In a letter asking other senators to co-sponsor the bill, Sen. Lautenberg claims that S. 1317 would only "permit the Attorney General to deny firearms and firearms and explosive licenses to known and suspected terrorists." That statement is false. Lautenberg's horrendous bill would also prohibit the possession of firearms by people who have been improperly placed on the FBI's secret Terrorist Screening Database (TSDB) "watchlist" without their knowledge, according to guidelines that the FBI does not make public, and without an opportunity to pre-emptively correct the FBI's error administratively or in a court of law. The bill would also allow the attorney general to revoke a person's Federal Firearm License on the same basis.

There are no two ways about it.

Lautenberg's scheme would violate the spirit and letter of the Fifth, Sixth and 14th Amendments, which protect the right not to be deprived of liberty without due process of law, the right of a person "to be informed of the nature and cause of the accusation" against him, and the right of a person "to be confronted with the witnesses against him."

The bill's co-sponsors already include three of the most anti-Second Amendment people ever elected to Congress--Sens. Dianne Feinstein, D-Calif., author of the federal "assault weapon" ban of 1994-2004, Charles Schumer, D-N.Y., who (as a House member) sponsored the ban and the Brady bill and Carl Levin, D-Mich., who co-sponsored the Brady bill and who since May 1999 has spoken against guns on the Senate floor once a week whenever the Senate has been in session.

S. 1317's sponsors might insist that a person prohibited from possessing firearms due to being on the watchlist would be eligible to challenge his listing in federal court. But, while waiting for his day in court, the person would still be prohibited from possessing firearms.

"Day in court" is hardly a fair description of the experience the person would face--at least for those of us who are used to being protected by the Bill of Rights against the arbitrary exercise of government power, rather than being subjected to kangaroo courts. Under S. 1317, a judge who thinks no private citizen should have guns would have the power to review the allegations against a "watchlisted" person behind closed doors, without making the allegations known to the person. Without that, the person could hardly present any kind of effective evidence on his behalf.

And Lautenberg doesn't trust judges. S. 1317 even dares to prohibit a federal judge from rendering his judgment on the basis of all documents the government presents to make its case. It instead says that a judge should consider only those documents' "summaries or redacted versions," which almost assuredly would conceal the identity of the former gun owner's accusers.

Now, it's possible that Lautenberg could claim that the FBI wouldn't put anyone on the watchlist without good reason, and that guidelines--secret though they may be--are already in place to prevent innocent people from being "watchlisted" improperly. After all, the FBI's Terrorist Screening Center (TSC) says it "does not maintain information on persons who are not reasonably suspected of terrorism." And Homeland Security Presidential Directive 6 of 2003 requires that the federal government's efforts to collect information about known or suspected terrorists "shall be implemented in a manner consistent with the provisions of the Constitution and applicable laws, including those protecting the rights of all Americans."

However, many Americans--including federal air marshals, young children, military personnel fighting against real terrorists overseas, the late Sen. Edward Kennedy and a notable figure of America's modern civil rights movement, Democratic U.S. Rep. John Lewis of Georgia--have already been misidentified as terrorists by the Transportation Security Administration's "no-fly" list. As a result, they've been prevented from boarding commercial aircraft. And the "no-fly" list is merely a subset of the larger TSDB, which included about 400,000 individuals as of Sept. 9, 2008, according to the FBI.

 

We've already seen what happens when our Right to Keep and Bear Arms is subject to arbitrary authority. . . .

Sen. Lautenberg's bill is only the latest in a long series of attempts to let unelected bureaucrats and other officials erode our freedoms.

 

Furthermore, a May 2009 report on a study of the TSDB, conducted by the Department of Justice's inspector general, found huge problems with the watchlist's administration. For example, the inspector general found that "initial watchlist nominations created by FBI field offices often contained inaccuracies or were incomplete," that "the FBI did not consistently update or remove watchlist records when appropriate," and that in 80 percent of closed investigations, the FBI failed to remove subjects from the watchlist in a timely manner or failed to remove them at all. The report also discovered that 35 percent of names in the watchlist "were associated with FBI cases that did not contain current international terrorism or domestic terrorism designations."

The inspector general made recommendations for improving the administration of the TSDB. However, even if the FBI were able to perfectly follow existing and improved procedures--obviously, an impossible task--it would still not justify S. 1317. Lautenberg is proposing to give unelected bureaucrats the arbitrary authority to strip away a fundamental right on the basis of a mere accusation.

We don't do that in America.

In many ways, we've already seen what happens when our Right to Keep and Bear Arms is subject to arbitrary authority--and what might happen with even more arbitrary authority. Sen. Lautenberg's bill is only the latest in a long series of attempts to let unelected bureaucrats and other officials erode our freedoms.

For instance, many states once had "may issue" carry permit laws that gave government officials the arbitrary power to decide whether to issue permits to eligible applicants. Most of the time, permit applications were denied. It's for precisely that reason the NRA has spent 20 years campaigning to quadruple the number of states with "shall issue" laws.

Beginning in the 1970s, gun control supporters wanted to give the Consumer Product Safety Commission the power to subject handguns to unachievable "safety" standards, which would have effectively prohibited their manufacture. Congress wisely exempted firearms from the commission's reach, so in 1994 the radical Violence Policy Center (VPC) drafted "model" legislation to give the same power to the Bureau of Alcohol, Tobacco and Firearms (BATF, now called BATFE). Never inclined to hide its intentions, the VPC said that its plan should result in "a handgun phase-out" in which "the future manufacture and sale of new handguns would be prohibited" and "[c]urrently possessed handguns would be required to be surrendered upon the owner's death."

Similarly, in 1988, the VPC proposed that the BATF establish guidelines for the prohibition of semi-automatic "assault weapons." Predictably, in 1989, 1993 and 1998, when the media and anti-gun groups attacked various foreign-made semi-automatic firearms that the BATF had approved for importation, the agency reversed itself, reinterpreted the law and banned importation of the guns.

Promoting Lautenberg's bill in The Washington Post, New York City Mayor Michael Bloomberg claimed the Fort Hood murders in Nov. 2009 would have been prevented if the bill had already been law. Bloomberg claims that because the person now accused of the Fort Hood murders had previously been investigated by the FBI for sending e-mails to an al Qaeda supporter in Yemen, the FBI should have been able to search records of the National Instant Criminal Background Check System (NICS) to see if, by chance, he had bought a gun. (And yes, Bloomberg also wants to repeal the law that prevents the FBI from using the NICS to create a central record of gun buyers.) But Bloomberg's claim is false. Long before the accused Fort Hood killer bought his gun, the FBI concluded he was not involved in terrorist activity and a more comprehensive investigation wasn't necessary. Though the FBI won't say one way or the other, it is almost certain he was never placed on the TSDB watchlist. NICS screens the Violent Gang and Terrorist Organization File (the part of the TSDB in which the suspect's name would have been placed) when anyone tries to buy a gun from a federally licensed dealer.

"Honesty" is not a word that comes to mind when one thinks of Michael Bloomberg, nor when one thinks of Frank Lautenberg. "Hypocrisy," on the other hand, is a perfect fit. Lautenberg once spoke disapprovingly of the internment of Japanese-Americans during World War II, the blacklisting of people on the basis of mere allegations during the "McCarthyism" period of the 1950s and "an utterly ruthless enemy . . . who has absolutely no sense of propriety or decency while it wages war against innocent people." But that was in 2003. If Lautenberg's reverence for civil liberties were more than pretense, he would never have introduced S. 1317.

As the Supreme Court said in another time of national crisis, "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." In the face of attacks like Lautenberg's, it's up to us to remember that principle as we work to protect our fundamental freedoms.

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