The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There was much in President Obama's speech tonight that I agreed with, but this part strikes me as wrong:
To begin with, Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semiautomatic weapon? This is a matter of national security.
As I mentioned with regard to Sen. Feinstein's similar proposal, wouldn't the argument be that these are just "suspect[s]," and we don't deny constitutional rights based just on suspicion? If you think you can prove someone is a terrorist, lock him up. If you have probable cause to think he's a terrorist, and think you can develop proof beyond a reasonable doubt, arrest him. Even if you have only suspicion, follow him, ask people about him, and so on. But if you don't have enough to prosecute or even arrest someone, you can't take away his constitutional rights, even if you suspect he's a terrorist (or if you suspect he's a drug dealer or a gang member or whatever else).
President Obama has acknowledged that "the Second Amendment guarantees an individual right to bear arms." It follows from that, I think, that "suspect[ing]" someone—even suspecting someone of terrorism—isn't reason enough to deny him that individual right. (Of course, that's especially so given that such suspicion can snare people who share the same name as people who are suspected of a crime, and other people who aren't actually guilty of anything; that's the consequence of operating based on suspicion rather than based on proof.)
For more on this, see this post (which also briefly touches on no-fly lists, the extremely limited procedures for getting people off the lists, and other related matters).