Mimesis Law
19 April 2019

Gun Control & The “No Buy List”: What Are We Getting Into?

June 20, 2016 (Fault Lines) — In the wake of the Pulse massacre in Orlando, we’ve been inundated by the usual calls to DO SOMETHING in order to prevent the tragedy that has just occurred. One of those proposals, which has come up before, is a “no buy list,” in which “suspected terrorists” would not be allowed to purchase guns. There’s been almost no discussion, however, of how one becomes a suspected terrorist in the first place. This is important, because if we’re going to pass laws impinging on our constitutional rights, we should at least know what we’re getting into.

To begin with, there are actually two separate lists that we’re concerned with, the Secondary Security Screening List (people on this list can fly but are subjected to extra security), about 1.8 million people; and the no-fly list proper (about 50,000 people). Also, as of 2009, only about 5% of people on the larger list were U.S. citizens or green cards holders.[1]

So how does one end up on the list? In 2013, the Intercept published the National Counterterrorism Center’s policy manual on the watch lists.

From Section 3.15:

Nominations of U.S. persons shall be made based on information from sources of known reliability or where there exists reasonable corroboration or context supporting REASONABLE SUSPICION. (emphasis orgininal).

Appendix 1 of the manual defines “reasonable suspicion.”

  1. To meet the REASONABLE SUSPICION standard, the NOMINATOR, based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known, or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or relating to TERRORIST and/or TERRORIST ACTIVITIES. There must be an objective or factual basis for the NOMINATOR to believe that the individual is a KNOWN or SUSPECTED TERRORIST. Mere guesses or hunches are not enough to constitute a REASONABLE SUSPICION that an individual is a KNOWN or SUSPECTED TERRORIST. (Emphases n original, terms in capital letters are also defined in Appendix 1)

Sound familiar? It should, as the language is similar to Terry v. Ohio, a Supreme Court case that governs when the police can detain an individual and search him for weapons:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. […]And in determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

The “reasonable suspicion” standard is the lowest standard of proof in criminal law. Basically, the legal standard for ending up on a watch list requires the same burden of proof that it would take for a police officer to stop you on the street or pull your car; which doesn’t even rise to what they would need to arrest you.

That may not be a bad thing. The watch list occupies a gray area between national security and criminal law, and a preponderance standard for inclusion on what’s essentially a counter-intelligence tool might not be practical, and a reasonable doubt standard definitely wouldn’t be. But regardless of which standard is used, there’s a bigger problem, at least to the extent which the list is applied to Americans: the lack of judicial review.

Sections 1.62-1.71 of the NCTC manual describe the procedure for removing someone from the lists. Basically, it’s up to the agencies themselves to decide when someone gets on or off. The Department of Homeland Security has a program called TRIP, which can be used to petition for a change in status, but it’s a purely Executive process, with no safeguards for procedural due process in place. Essentially, the proponents of a “no buy” list are proposing a way to limit Second Amendment rights in the same way Fourth Amendment rights have been limited. And even the Fourth Amendment has been shot full of more holes than Sonny Corleone, unlike the no-fly list 4A violations are still subject to judicial review.

There are currently two proposals in the Senate that would establish some sort of “no buy list.” One, proposed by Dianne Feinstein (D-CA)

would allow the Justice Department to block gun sales to individuals on the federal terrorist watch list if authorities had a “reasonable belief that the weapon would be used in connection with terrorism.”

However, according to Greg Sargent of the Washington Post:

This new group is flagged by virtue of having been investigated for terror in the last five years. (emphasis original).

People blocked in this fashion, too, can appeal it to the NICS. But if their appeals are denied, it’s unclear that they’d have any recourse at that point, beyond suing the Attorney General.

The other proposal, advocated by Sen. John Cornyn (R-TX)

would let the government delay a gun sale to a suspected terrorist for 72 hours. Prosecutors would need to go to court and convince a judge there was probable cause in order to permanently block the sale.

“The role of the courts is to be an independent third party and evaluate those so the government doesn’t abuse its authority,” he said.

Democrats argue that 72 hours is too short and does not give the Justice Department enough time to block the sale. Sen. Charles Schumer, D-N.Y., asserted that it is “intended to never deny a gun, or almost never, even to a terrorist.”

Basically, Feinstein’s proposal for the no buy list includes a reasonable suspicion standard and is without meaningful review; while Cornyn’s proposal has a hard clock, requires a probable cause standard, and is subject to judicial oversight. Schumer is correct in that if there’s going be a no buy list, 72 hours is too short a time period—the bad guys would simply adopt the wily strategy of purchasing a gun at 5:01 pm of a three day weekend.

One’s position on gun control (and everything else, for that matter) matters less than how well thought out that position is, and how well you’ve thought through the consequences. There remains a serious bottom line question of the constitutionality of any of these ideas.

So before jumping on the “no buy list” bandwagon because it’s a cool rhyme, ask:

  1. Who makes the list?
  2. How do you get on the list?
  3. By what criteria?
  4. How do you get off?

If you can’t answer those questions, you’re part of the problem.

[1] Since the Christmas, 2009 Underwear Bombing, both lists have expanded considerably. It’s unclear whether the 5% figure is still valid.

4 Comments on this post.

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  • Keith
    20 June 2016 at 10:05 am - Reply

    “Schumer is correct in that if there’s going be a no buy list, 72 hours is too short a time period—the bad guys would simply adopt the wily strategy of purchasing a gun at 5:01 pm of a three day weekend.”

    Why is it too short? What makes this statement objectively obvious?

    Is there no emergency standby judge at a courthouse? Is there no overtime pay available for DoJ lawyers? Are the locations where they store the reasons for denial paperwork inaccessible on holidays?

  • DaveL
    20 June 2016 at 2:28 pm - Reply

    Democrats argue that 72 hours is too short and does not give the Justice Department enough time to block the sale.

    Let’s be realistic here. 72 hours (3 business days, actually, so forget the long-weekend trick) is the time period currently allowed for processing an ordinary NICS background check. It was established in the early 90s, in the days when the Intel 486 was new and dial-up modems were state of the art. There are tens of thousands of felony crimes on the books, and regular readers of this blog ought to know that indictments aren’t very hard to come by. Once that’s done the feds have all the time in the world. 72 hours is plenty of time to block a sale, even with no modification to current law, if that’s what they really wanted to do. The US DOJ opens tens of thousands of criminal cases every year, a few dozen, maybe a few hundred more per year wouldn’t make a difference.

    The only way it could make a difference would be if they wanted to block tens of thousands of purchases per year or even more.

    Sen. Charles Schumer, D-N.Y., asserted that it is “intended to never deny a gun, or almost never, even to a terrorist.

    That’s actually a fairly accurate characterization of how often people on the watch list actually purchase guns legally through licensed dealers, and go on to commit terrorist acts with them. As far as I can tell, there have been only 2 such incidents since the list’s inception: the Garland, TX attack in 2015 and the 2009 Little Rock, AR shooting. Given the millions of sales per year nationwide, I’m comfortable with ‘almost never.’

  • E Hines
    21 June 2016 at 2:09 pm - Reply

    From the first cite in OP: Nominations of U.S. persons shall be made based on information from sources of known reliability or where there exists reasonable corroboration or context supporting REASONABLE SUSPICION. (emphasis orgininal).

    Who were the sources of “known reliability” and what was the “reasonable corroboration or context supporting REASONABLE SUSPICION” that put Ted Kennedy and Stephen Hayes on a no fly list? Yes, these were errors; their existence argues against mere presence on a list as being adequate.

    On the question of going into court within 72 hours and showing probable cause, I’m puzzled: courts and lawyers really are closed and unavailable after 1700 Friday afternoon until Monday (Tuesday) morning? Too, the folks on the lists (or at least the vast majority of them, the rare Kennedys and Hayeses notwithstanding) already are under suspicion, and so they’re already on lists with associated evidence. How is not a simple pull from one of the existing databases that they’re on–an unclassified one in particular–to produce the evidence that supports probable cause?

    Eric Hines

  • No-Fly No-Gun Is Such A Bad Idea It May Actually Be Good
    29 September 2016 at 9:26 am - Reply

    […] the terrorist watch list and the no-fly list, since our government acknowledged their existence. This is for good reason. The lists are full of inaccuracies, populated with totally innocent people with foreign-sounding […]