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Which Watchlist Would They Use to Deny Gun Rights? And Are They Even Confined to a List?

You don’t have to be a gun-lover to be worried about the vagueness of the language.

You're not Santa and I don't care who is on your naughty list.Credit: DonkeyHotey / photo on flickrIn response to the Democratic proposal to prohibit people on federal no-fly lists from buying guns, Sen. Marco Rubio spoke out in opposition on Sunday, warning that there more than 700,000 possibly innocent Americans on federal watchlists that could be affected and lose their rights without any due process.

Politifact wasted no time at all declaring Rubio's statement to be "mostly false." Why? Because while Rubio is likely correct about the number of people on the list, a much fewer number are likely to be Americans. In other words, Rubio is right that innocent Americans could lose their civil liberties, but not as many as he thinks, thus only "mostly" false.

Politifact's ruling is awful and dependent on simply letting experts with government connections assert different numbers without providing any actual credible data. Apparently a former FBI guy simply saying it's "harder than people think" to get onto the no-fly list counts as rendering Rubio's argument untrue.

Then there's this nonsense, coming from Timothy Edgar, who used to oversee watchlists under both Presidents George W. Bush and Barack Obama:

But the problem of same names is less common than it used to be, and there is a reasonably efficient redress process for people to appeal to the government to get their name removed from the terrorist watch list, Edgar noted.

"That shows that the redress process is not a sham, but it also shows that a fairly significant number of people are put on the watchlist by mistake," he said.

Is this a joke? No, there is no reference to the lawsuit by the American Civil Liberties Union (ACLU) that the "reasonably efficient redress process" is in fact a sham. This is a lawsuit that not only is the ACLU winning, but the Department of Homeland Security has been forced to actually "redress" its "redress process" by a judge. And why is Edgar being treated as an objective source when he's clearly not? Why on earth should we believe that the United States only has 10,000 Americans on its list of 700,000 people (especially since we know that hundreds of thousands of them have no known ties to terrorism)?

For that matter, here's a relevant question: Which watchlists are we even talking about here? Democrats keep saying the no-fly list in their memes/arguments, but in fact the no-fly list is just a small subset of the full terror watchlist. Those who are on a watchlist but not the no-fly list are subjected to further security screenings in airports, but are permitted to fly. John T. Bennett of Roll Call noticed all these references to lists seem to be used interchangeably. What list are they talking about? It appears as though they may well be referring to the larger list:

Asked Monday about confusion over the two lists or whether the White House is citing the smaller list because it was more politically palatable, a White House spokesman said that Press Secretary Josh Earnest addressed the question in Monday's briefing. In the briefing, Earnest did not explain the discrepancies between the two lists. But in a Monday tweet, the White House referred to the "terrorist watch list," suggesting the larger list, citing a Government Accountability Office report that concluded from 2004 until 2014, more than 2,000 people in that database were able to purchase a gun.

Sen. Marco Rubio, R-Fla., a 2016 presidential candidate, said Sunday on CNN he believes "the majority of people on the no-fly list are oftentimes people that basically just have the same name as somebody else who [does] belong on the no-fly list."

It is not immediately clear which list Democrats want to give a larger role in the gun purchasing process.

The defeated [Sen. Dianne] Feinstein amendment would have prohibited individuals included on the consolidated database. Yet, in statement after statement since last Wednesday's attack in San Bernardino, Calif., Obama and his chief spokesman have referred to the federal no-fly list.

Here's what may really be happening:

But a Feinstein aide, who spoke anonymously to be candid, said her boss always has targeted the larger list. The aide pointed out that database includes the no-fly list and several others that are maintained by security agencies such as the FBI and National Counterterrorism Center.

But the aide said Feinstein has sometimes referred to the no-fly database rather than the broader one her legislation actually covers for this reason: "That's more relatable to the average person — people have heard of the no-fly list, not necessarily [ones like] the National Counterterrorism Center's TIDE database.

"I'd imagine that's why White House officials have referred to no-fly as well," the aide said.

But there's more. I've read through the actual Feinstein amendment (SA 2910), and there's only one reference to terrorist watchlist records at the very end, demanding that the attorney general make sure privacy and civil liberties are protected. But I see nothing in the actual legislation that even requires the attorney general to confine his or her refusal to allow citizens to own a firearm based on inclusion in a watchlist. Here's what it says:

"The Attorney General may deny the transfer of a firearm under section 922(t)(1)(B)(ii) of this title if the Attorney General—

"(1) determines that the transferee is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism; and

"(2) has a reasonable belief that the prospective transferee may use a firearm in connection with terrorism.

The law further explains that its definition of terrorism applies to both international and domestic situations. The attorney general is further permitted to withhold information from the parties whose gun purchases are denied on the basis of protecting national security. Those who are denied to have the power to challenge the attorney general's decision, but the legal burden of proof required of the government to deny somebody a gun would be "preponderance of the evidence," a looser threshold than required to convict somebody of a crime. The threshold of probability is simply "more probably than not."

This proposed law actually appears to be much broader than we're being told. It appears to possibly be even stronger than its critics warn about (with the usual caveat that I'm not somebody who writes laws for a living, so I may be missing something). 

Photo Credit: DonkeyHotey / photo on flickr

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  • SugarFree||

    Damn, Reason. Maybe you should layoff Marco Rubio and criticize Dianne Feinstein and the Democrats for a change.

  • Diane Reynolds (Paul.)||

    They got a lolpic of her!

  • DEATFBIRSECIA||

    I thought that was William Devane!

  • Diane Reynolds (Paul.)||

    Initially, I thought it was Willem Dafoe.

  • Crusty Juggler||

    Willem Dafoe is not that good looking.

  • Copernicus would chip||

    I always thought Dafoe would have made a great Howard Roark.

  • Tundra, well-chilled.||

    She looks like the judge from The Wall album art.

    "Good morning, worm your honour!"

  • ||

    Trump's never actually tried to restrict my civil rights

  • JW||

    If you live in Atlantic City, he has.

  • Swiss Servator||

    "Hey, not my house!?!"

  • ||

    Don't be absurd, no one lives in AC. Well, no one human, that is.

  • Rhywun||

    I used to *love* visiting AC as a kid, and that was before the casinos. The beach, the rides, the weirdo carnies. I had no idea there was a 40,000-person ghetto behind the Boardwalk.

  • Diane Reynolds (Paul.)||

    warning that there more than 700,000 possibly innocent Americans on federal watchlists that could be affected and lose their rights without any due process.

    Politifact wasted no time at all declaring Rubio's statement to be "mostly false."

    Are we watching the slow final transformation of Democrats now trusting that which they signaled they didn't trust at all in 2008?

  • Diane Reynolds (Paul.)||

    Oh, by the way... is this another red-letter example of a "thing" becoming useful for a different "thing" for which it was intended... because once you have the powers yadda yadda...

    If there was only a way to teach the younger generations these lessons (mine included) so we don't constantly repeat these easily foreseeable mistakes.

  • commodious spittoon||

    I'm beginning to think, and maybe this paints me as unforgivably naive, that Democrats did in fact intend this to be an open-ended confiscation/denial tool rather than merely wanting to look Tough On Terror.

  • Diane Reynolds (Paul.)||

    For that matter, here's a relevant question: Which watchlists are we even talking about here? Democrats keep saying the no-fly list in their memes/arguments, but in fact the no-fly list is just a small subset of the full terror watchlist. Those who are on a watchlist but not the no-fly list are subjected to further security screenings in airports, but are permitted to fly.

    I suspect it'll be whatever list turns out to cover the most people.

  • B. Woodrow Chippenhaus||

    Ah, so the U.S. Census.

  • Just say Nikki||

    But the aide said Feinstein has sometimes referred to the no-fly database rather than the broader one her legislation actually covers for this reason: "That's more relatable to the average person — people have heard of the no-fly list, not necessarily [ones like] the National Counterterrorism Center's TIDE database.

    "I'd imagine that's why White House officials have referred to no-fly as well," the aide said.

    So they're lying shitheads who admit they lie, but the problem is with Marco Rubio.

  • Tundra, well-chilled.||

    Well, the fucker does hydrate a lot.

  • Idle Hands||

    the fucking gall of these people.

  • ||

    They can't possibly be able to surprise you at this point.

  • Diane Reynolds (Paul.)||

    I have a new theory... well, let me call it a question... is it possible that Democrats are entirely unserious about using the no-fly list as a litmus test for gun-ownership?

  • Idle Hands||

    that is just their initial proposal, it's all outlined in the art of the deal.

  • ||

    I think they think they're playing a clever game of gotcha - "see, you Republicans are OK taking away the constitutional right to travel based on being the subject of an investigation, wouldn't the same logic lead you to deny this one other little right?"

  • Diane Reynolds (Paul.)||

    That's what I'm wondering. I'd give them begrudging respect if that's all this was.

  • Crusty Juggler||

    I do not think they think that far ahead.

  • Diane Reynolds (Paul.)||

    This isn't 3d chess, Crusty. It's politics.

  • Crusty Juggler||

    The leader of their party based a nationally televised speech around a hashtag. I think they make it up as they go along.

  • Diane Reynolds (Paul.)||

    That just means he's in touch with those boss, groovy and bitchin' things the young kidz are into! He's hip, cool and totally fly!

  • Enjoy Every Sandwich||

    "Queen to queen's level three"

  • ||

    Crom knows I do see a lot of stuff lately on social media like, "If we make women go to one clinic in the entire state to get an abortion, and they have to be lectured by a doctor and be shown pictures of dead babies, why don't we have that kind of thing for gun purchases?"

    Hopefully at least some of the people posting this get the point that "If that kind of thing is dumb for one, it's dumb for the other as well" but unfortunately I think a lot of people think that the only problem is which one has all the crazy rules around it.

  • macsnafu||

    If only we had ABSOLUTE CONTROL over everyone, nothing bad would ever happen! /sarc

  • MJBinAL||

    I always find the progressive position on abortion silly.

    According the progressives, it is perfectly ok to....

    Regulate who will perform medical operations or procedures
    who may get medical operations or procedures
    where medical operations or procedures may be performed
    how many medical operations or procedures maybe performed
    what medications you may get
    what you may use medications for
    and of course who may give or receive organs for transplant (oh and you can't be paid)

    BUT, abortions (a medical operation) are special and must not be regulated at all, cause woman's privacy!

  • Lorenzo Zoil||

    If it weren't for the gun side of the discussion the Republicans would be tripping over themselves to get this done. What better path is there to damage political opponents than conviction without due process?

  • Rhywun||

    I've been speculating that this is their end-run around the 2A. I thought I was joking.

  • ||

    Dude, they are always looking for an end run around multiple amendments. They may be incredibly inept most of the time, but they never stop trying.

  • Notorious UGCC||

    The quoted language would not confine the AG to any existing list. She could devise her own.

    The point is the AG can make up (in both senses) lists of people who can be denied civil rights - first it's the right to travel by plane, then it's the right to bear arms (if the Dems get their way).

    I'd really harp on the parallels to banning orders. If not, we're more likely to end up in that place.

  • bacchys||

    I've been readings a lot of idiots insisting there's no right to fly, hence it's okay to inconvenience others (but not them).

    This impulse isn't limited to the left.

  • dchang0||

    Most human rights advocates would say that there is a fundamental human right to freedom of movement (travel). It may not be a right to fly, but some points A to points B can only be practically reached by air travel.

    For instance, one could not boat nor drive nor practically hike to the South Pole. A plane is the only practical way to get there.

    So I would say that there IS a right to fly, even if it is not enshrined in the US Constitution.

    Yes, there are plenty that insist driving is not a right either (and some that do: http://www.apfn.org/apfn/travel.htm), so I guess basically they are saying that one can only enjoy their right of freedom of movement by walking or swimming (although swimming/boating in certain bodies of water is regulated or prohibited) or perhaps bicycling (although bicycles are treated the same as cars in many ways under many state vehicle codes).

    As the saying goes, a right isn't a right if you can't freely exercise it...

  • bacchys||

    I've been readings a lot of idiots insisting there's no right to fly, hence it's okay to inconvenience others (but not them).

    This impulse isn't limited to the left.

  • bacchys||

    I've been readings a lot of idiots insisting there's no right to fly, hence it's okay to inconvenience others (but not them).

    This impulse isn't limited to the left.

  • Slim Strontem||

    And the definitions of "terror" would evolve, etc., etc.

  • Enjoy Every Sandwich||

    The law further explains that its definition of terrorism applies to both international and domestic situations. The attorney general is further permitted to withhold information from the parties whose gun purchases are denied on the basis of protecting national security.

    So they could easily deny gun purchases to anyone deemed a political enemy but allow them for friends. Mmmmm tasty arbitrary power!

  • Je suis Woodchipper||

    How is any of that Constitutional?

    Obama is the greatest gun salesman in the history of gun salesmen.

  • Crusty Juggler||

    What is "constitutional?"

    We have feelings - they are what matter.

  • Tundra, well-chilled.||

  • Notorious UGCC||

    I think they're just trying to float the most radical ideas imaginable, plus hyperbole and indignation, until the "moderates" throw in the towel and stop resisting. Then we get "common sense" gun laws. Which, after the next crisis, will turn out to be inadequate, so we get stricter ones.

    Repeat until we're the UK.

  • Tundra, well-chilled.||

    I read somewhere that he's sold in the neighborhood of 100 million units. Salesman of the decade, for sure.

  • Bill Dalasio||

    Fuck.

    The assholes pushing this shit almost deserve to get their way about being able to rescind constitutional rights by inclusion on the "watchlist".

    Then the fuckers deserve to get stuck with President Trump to administer those rules.

    The problem is that the rest of us would also get stuck with whatever pack of douchenozzles winds up with the power.

  • Diane Reynolds (Paul.)||

    Well, we already have some documented evidence that everyone commenting on Reason is on a watchlist.

  • ||

    When President Trump creates a secret list to deny voting rights to "terrorists" it would be wonderful to hear the whining.

    It would almost be worth it to hear some of my proggie neighbors down at the precinct voting area being told that "Sorry, you are on the no-vote list. You cannot have a ballot".

  • Bill Dalasio||

    Yeah, but he'd take the same rights away from the rest of us just as quickly.

  • Ken Shultz||

    There will never be a President Trump.

    If he wins the nomination, despite all the registered Republicans who despise him, Hillary will win.

    Trump can't even get a majority of Republicans to support him. Why would he win with marginal Democrats and swing voters?

  • sasob||

    If he wins the nomination, despite all the registered Republicans who despise him, Hillary will win.

    Call me a conspiracy nut if you wish, but more and more I'm thinking that's been the plan all along.

  • MJBinAL||

    I am not a Trump supporter, but I believe you are mistaken. Trump has a lot of support on the Democratic side, many of them formerly known as "Reagan Democrats" who also detest Hillary. If Trump gets the nomination , he is quite likely to win.

  • Bubba Jones||

    Wood

    Chipper

  • Ken Shultz||

    "Sen. Marco Rubio spoke out in opposition on Sunday, warning that there more than 700,000 possibly innocent Americans on federal watchlists"

    Progressives see that as a bonus--no one who owns a gun is innocent in their opinion.

    I don't really care what Rubio thinks, but Longmire would be against denying people guns based on a federal watch list.

  • Bubba Jones||

    In practice, the people denied a transfer would never know why and would never get a chance to challenge the preponderance of the evidence.

  • Diane Reynolds (Paul.)||

    They've they've already prepondered the evidence.

  • d3x / dt3||

    You misspelled "raped"

  • Gahan||

    I wonder if such a law would pass constitutional muster even if it made it through the legislature. Even if you accept the premise that people too dangerous to fly are also too dangerous to own a gun, the fact remains there is no constitutional right to board a plane. I really don't see how this would fly (no pun intended) without repealing the 2nd amendment.

  • Scott S.||

    Granted this hasn't made it to SCOTUS yet, but at least one judge on these cases has ruled that flying is indeed a right, and that's why the government had to implement decent due process for people to appeal being placed on the no-fly list.

  • MJBinAL||

    Even if you believe (as many do) that the right to board a plane is constitutionally protected, it is not a specifically enumerated right like the second amendment. I believe the SC would slap this down pretty hard.

  • kbolino||

    the fact remains there is no constitutional right to board a plane

    While true, the 9th Amendment makes it irrelevant. The government can't deny something on the basis that you don't have a right to it.*

    * = If the courts did their job

  • ||

    "the fact remains there is no constitutional right to board a plane"

    I would disagree. But my view of the Constitution is the opposite of the average politician: government has no rights other than those specifically enumerated in the Constitution. The government can infringe the rights of no citizen except in ways specifically enumerated in the Constitution.

    For example: the government has no constitutional right to keep me from boarding a plane.

  • Rhywun||

    Q: Do airlines have the right to refuse a passenger?

  • sasob||

    I fear I'm a bit more extreme: governments have no rights whatsoever; they have only powers, which are delegated to them by their citizens, and which can be withdrawn by those citizens at will.

  • sasob||

    And further - the citizens can delegate only such powers that each would hold by individual right as an individual. Nice theory, of course. Good luck trying to implement it.

  • Sevo||

    "the fact remains there is no constitutional right to board a plane."

    Really? Do you think the constitution grants rights? Do I have a constitutional right to drink a beer at a ball game? I don't see it anywhere in there.

  • bacchys||

    The right to travel is a fundamental right. Flying is simply a mode of travel. Restrictions and regulations of travel therefore require the government show a compelling purpose and that the given regulations have a substantial likelihood of meeting that purpose.

    There is a difference between a private actor (an airline) and government regulation.

  • MJBinAL||

    The government position is (right or wrong) that they are not forbidding travel in general and you are free to use alternative travel methods. They say that travel by airline is uniquely vulnerable to terrorism and therefor they can exclude that risk so long as they allow alternative travel methods.

    A tenuous thread I admit, but it is the thread.

  • Diane Reynolds (Paul.)||

    Push for Gun Curbs Tied to No-Fly List Puts Republicans on the Spot

    With domestic gun violence becoming increasingly common, Democrats have used the latest attack, apparently by supporters of the Islamic State, to frame the issue as a matter of national security. The tactic has put Republican presidential candidates on the spot and created some fissures within the field as those seeking the nomination try to balance defending Second Amendment rights and protecting the public.

    http://www.nytimes.com/2015/12......html?_r=0

  • B. Woodrow Chippenhaus||

    With domestic gun violence becoming increasingly common

    Liars gonna lie.

  • d3x / dt3||

    Well, they are largely assholes, so having fissures would make sense.

  • sasob||

    Thought that was fistulas.

  • Ted S.||

    The move doesn't protect the public, anyway.

  • simplybe||

    The Federal government will not infringe on the right of citizens to own and bear arms. What is so hard to understand about that.

  • Je suis Woodchipper||

    somebody talk me down from splurging on a bolt action in .375 ruger. STAT!

  • d3x / dt3||

    Why that caliber?

  • Je suis Woodchipper||

    Because I want to see how much of the lungs and heart I can obliterate back into the intestines. IOW no legit reason. It's just a beautiful rifle.

  • d3x / dt3||

    I don't know a lot about that round. Better than .300 Win Mag or .338 LM? Or just different?

  • JPyrate||

  • TimothyLane||

    Politifact can be really good in dealing with specific factual claims, even frequently doing a good job of admitting that their beloved liberals are lying. But all too often they treat liberal opinions as unchallengeable fact rather than finding out the real facts of the matter. I have observed this repeatedly over the last few years.

  • josh||

    this is mostly true.

  • In League with the Dark Ones||

    How is this not a bill of attainder?

  • josh||

    it's strange that something like politifact became the de facto arbiter of what reality is. i think we've actually replaced facts with that weird barometer that used to measure applause at old rock-n-roll shows and somehow people are ok with that.

  • JPyrate||

  • JPyrate||

    A picture communicates a million words to those who understand Art Mr. Shackford. =)

  • JPyrate||

    "This proposed law actually appears to be much broader than we're being told."

    Law, and politicians that subvert the Law are funny like that. =)

  • ernestm||

    I am on the terrorist watchlist, and I object that I am able to buy guns. If republicans support that its own administration should not ban gun purchase from people on the watchlist it created, then it is irrefutably as guilty of terrorism as the people it condemned, I state with the utmost conviction, as I have direct experience on this issue for eight very long years.

    It started in 2006, when I was writing how Infants in Iraq are born with mutations, attributed to radioactivity from decaying depleted uranium (DU) in US military munitions. United Nations members overwhelmingly believe DU is a WMD. The retired supreme court attorney Vincent Bugliosi read my blogs, agreed with me, wrote a book stating President Bush should be tried for murder of innocents. In 2007, the DoD found out what I was doing. It threatened me with prison for life without trial, declared me a 'known terrorist sympathizer,' and only dropped their continued assault on my freedom because I am 'too poor to be a threat.'

    President Bush himself stated, "From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime" (Sept 20, 2001). On that grounds, I, a pacifist seeking only possible legal accountability for war crimes, was threatened with life imprisonment, but the same party supports sale of weapons to known terrorists? The republicans have condemn tnemselves on their own grounds for persecuting me.

  • bacchys||

    Well, you're on a terror watch list. You should be imprisoned for life without trial.

  • Win Bear||

    They would use the expanded watchlist. It makes you subject to intrusive poking and questioning at the airport and coincidentally also denies you the right to buy guns. All Americans are on it, except for Democratic party VIPs (top government officials and donors).

  • Peter||

    I suspect that they would play it safe by denying everyone.

  • Rockabilly||

    The prog and commie gun grabbers are digging themselves a deeper hole with their lies and communist sense ideas. Their minds , twisted with marxist notions, are alienated from reality.

    Their notion - that crooks, kooks, and terrorists would comply with their un Constitutional laws is more absurd than the French love for Jerry Lewis.

    https://www.youtube.com/watch?v=wW7EAYIFbaQ

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