When “Suspected” Is Close Enough (Update)

Well before facts were known, there were cries for denying guns to “terrorists” as the cure to mass murder.  It began when the shooters were characterized as “three white” people, which made some argue that the only reason for reluctance to call this terrorism was that the shooters didn’t have brown skin and funny names.

But then, it turned out they did, when it was revealed that the shooters were Syed Rizwan Farook, 28, and Tashfeen Malik, 27, so the arguments immediately flipped around for those determined to push their political and racial agendas no matter what.

And in jumped Senator Diane Feinstein with a bill to deny the purchase of guns to anyone on the FBI’s terrorist watchlist. It wasn’t a new proposal, but one whipped out whenever hysteria presents an opportunity.

The measure has been introduced repeatedly since 2007. The Government Accountability Office has documented that over years of congressional blockage, hundreds of suspected terrorists on the watchlist bought guns.

No, neither Farook nor Malik were on the terrorist watchlist. Indeed, aside from the facile prejudice derived from their funny names, they had nothing to do with terrorism.

But by late Thursday, no evidence had emerged that Mr. Farook had communicated with anyone of “significant investigative concern,” one official said, and no evidence that he was tied to, or inspired by, any terrorist group.

And Farook, a United States citizen, had lawfully purchased guns.

The two handguns that were recovered were bought by Mr. Farook, and all four weapons were bought legally, Chief Burguan said. A senior federal law enforcement official said the assault rifles were bought by a third person who is not considered a suspect.

But that didn’t prevent anyone from using the opportunity to push an agenda that bore no relationship to anything.

In the hours after the attack in San Bernardino on Wednesday, President Obama specifically mentioned that legislation as an important security measure. “Those same people who we don’t allow to fly can go into a store in the United States and buy a firearm, and there’s nothing that we can do to stop them. That’s a law that needs to be changed,” he said on CBS News. The George W. Bush administration backed the terrorist-list bill in 2007.

The last sentence is tossed in by the New York Times to deflect any criticism that this is a partisan thing. It’s not. But it doesn’t make the current administration’s backing any more attractive either, despite the Times’ editorial blaming the other party for blocking the perpetual handmaiden law from protecting America from a mass murder where it wouldn’t have applied anyway.

The evolving situation has forced Republican leaders and presidential candidates to contort themselves: talking tough on terrorism, yet ignoring the fact that the two were armed to the teeth with two .223-caliber assault rifles and two 9-millimeter semiautomatic pistols, and hundreds of rounds, all purchased legally.

While the nation suffered through the shock of another bloody massacre, on Thursday every Senate Republican except Mark Kirk of Illinois voted against legislation to prevent people on the F.B.I.’s consolidated terrorist watchlist from purchasing guns or explosives.

Recognizing that their editorial bears no factual connection to anything, the Times skirts its agenda thus:

But when a mass shooting at home calls attention to laws that put guns into the hands of suspected terrorists, they ask for a moment of silence, while taking action that speaks volumes.

Not that this proposal would have changed anything, but that the mass shooting “calls attention” to an otherwise unrelated agenda seemed like the perfect opportunity to pick the flesh off the bones of the dead for its own purposes. Nice.

Nor did the law “put guns in the hands” of anyone. No one forces anyone in America to buy, own or use a gun.  As a typical northeastern city slicker, I don’t personally care for guns, don’t own any and have no desire to possess any. Nobody has put a gun in my hands, though I could certainly buy one if I desired. I don’t.

But what I am not is a fair weather friend of constitutional rights. Unlike the Times, I don’t prefer the amorphous claims of rights about safety and feelings, but the ones protected by the Constitution.  All of them, not just the ones that serve my purposes. Which brings me to the point of what’s terribly wrong with this hypocritical and deceptive notion.

The proposal is to deprive individuals of rights based upon being “suspected” terrorists.  The word “suspected” means that they have been convicted of nothing, are guilty of nothing in the eyes of the law, and yet would be deprived of constitutional rights. And the Times is good with depriving Americans of rights based on suspicion.

Even more bizarre, they approve of constitutional deprivation based on “the F.B.I.’s consolidated terrorist watchlist,” such as the no-fly list, the secret magic lists that provide no clue how one gets on, or off, or why, or why not. Some unknown government agents puts a name on a list in a computer and, poof, they are no longer entitled to the full panoply of rights the Constitution provides everyone else. Because they are “suspected.”

The desperation of this effort to characterize rejection of this ridiculously illiberal notion of depriving people of constitutional rights based on vague suspicion would be an outrage under any other circumstances. Except when it comes to guns. While accusing those voting against this misbegotten concept of “contorting” themselves, the only contortion apparent is that the New York Times’ adoration of civil rights ends at the barrel of a gun.

As Jesse Wegman, from the Times’ editorial board,  twitted at me yesterday in response to my standing firm in favor of constitutional rights:

Because that’s the only argument to be mustered when the hatred of guns confronts the Constitution.  I pretty much share Jesse’s feelings about guns. He doesn’t share my feelings about the Constitution. And that could explain the shamelessness with which opportunists seize upon a tragic mass murder to further an agenda that wouldn’t have prevented it anyway, but would have elevated suspicion to a satisfactory reason to deprive Americans of constitutional rights.

Update:  Eugene Volokh weighs in on suspected terrorists.

I can’t see how that’s constitutional. And though the bill would have let the buyer go to court to challenge the attorney general’s decision, the attorney general would simply have had to show by a preponderance of the evidence that the two elements were satisfied — that the attorney general appropriately suspected the buyer and that she had a reasonable belief about what the buyer may do. Plus the evidence supporting the attorney general’s position might never be shared with the buyer, which may make it impossible for the buyer to fairly challenge it, or aired in open court.

This seems like over-thinking the problem. But as Eugene also points out, there isn’t much chance this would prevent a terrorist who wanted to get his hands on a gun from getting one, thus reducing it to a pointless gesture designed to undermine gun ownership without providing any real benefit anyway.

24 thoughts on “When “Suspected” Is Close Enough (Update)

  1. Jake DiMare

    Reasonable people may debate the meaning of the second amendment, particularly with regard to regulation of firearms.

    However, when it comes to finding the necessary public support for change, on this subject, reason has historically not been a successful strategy. Of course, whipping up the hysterical masses with emotionally charged rhetoric hadn’t accomplished much lately either.

    1. SHG Post author

      Reasonable people cannot debate the Supreme Court’s opinion in Heller. Regardless of whether one agrees (which is largely an irrelevancy since the Supreme’s don’t rule based on popular vote), it is the law. Debate it all you want at cocktail parties and in lecture halls, but respect constitutional rights when it comes to government. Of that, there is no debate.

      And don’t forget, people also want to debate why criminals should be allowed to get off on “technicalities” like illegal searches, or why people should be allowed to utter “hate speech” when it hurts other people’s feelings.

      1. Jake DiMare

        Heller struck down some specific regulations but also specifically stated the right to bear arms is not unlimited. The debate continues. Citizens, for good reason, can not purchase shoulder fired rockets, squad automatic weapons, or hand grenades. As a resonsible handgun owner, I hope I live to see the day when assault rifles are beyond my reach.

        1. SHG Post author

          Thank you for your enlightened interpretation of Heller. When did you become a lawyer? Or is every “responsible” handgun owner imbued by god with the knowledge of what’s right and wrong with the Second Amendment so that he can use his non-lawyerly feelz to explain constitutional rights to the world?

        2. DaveL

          Did I read a different blog post than you? I thought we were talking about using due-process-free “watch lists” as a rationale for denying what the Supreme Court has already agreed to be a constitutional right, not anything to do with “assault rifles”.

        3. LarryArnold

          Do you mean “assault weapons?” As a “reasonable handgun owner” you might go back and check what Heller was all about. In D.C. any firearm with a detachable magazine, including a semiauto pistol, was classified as a prohibited “assault weapon.”

      2. Scott

        Do you not expend a great deal of verbiage yourself on the merits, or lack thereof, of SC decisions related to the 4th, 5th and 6th amendments? Why then is it unreasonable to debate Heller?

        1. SHG Post author

          Because this isn’t a post about relative merits of Heller; because it’s my blawg; because my post dictates the topic; because I say so. Debate all you want. Elsewhere.

          1. Scott

            Duly noted. I was not suggesting debating it here and now, merely being somewhat taken aback by “[r]easonable people cannot debate the Supreme Court’s opinion in Heller” considering you often seem to take issue with other SC decisions. I certainly don’t find you unreasonable. Staunch perhaps.

            1. SHG Post author

              You miss my point. Regardless of whether Heller is right or wrong, it’s now the extant interpretation of the Second Amendment and a constant in the debate. To argue the merits of Heller ignores the point of *this* issue. It’s like the law that flying is a privilege, not a right. I don’t agree with it, but that doesn’t change the fact that it’s the law.

  2. Dale Savage

    My biggest concern with mass killings in the U.S. (4 or more people dead from single incident) is that the problem is not unique nor is it one that has not been addressed by other similar countries who took action and succeeded in minimizing and in some case eliminated mass shootings deaths altogether. It seems the only choice we have is to amend the 2nd amendment to get any sought of effective change. This’s not a typo. i have lived in a country that suffered from mass shooting deaths (Australia) even on a larger scale than the U.S. (in terms of deaths in a single incident). The government took swift action amid the same battle cries that are heard in this debate today, the decision even costs some major political leaders their jobs come re-election. The social benefit of this change in Australian gun laws has been 20 years without a single incident of mass shooting deaths.

    As you are aware the two schools of thought about our constitution 1) is that it is set in stone and must be interpreted as it was exactly written or 2) it is a living breathing document that must comport with the times in which we live. The reality is a third option that I find most people apply and that is to pick and choose option one or two depending on their agenda.

    My point being this, there is a problem in the U.S. with mass shooting deaths and we have the knowledge and ability to make changes, if not to eliminate them, certainly to reduce the numbers of incidents based on the observations of how other countries similar to the U.S. have tackled the problem. However, to get to that place, the changes that need to occur are far greater than what anyone is currently talking about. In Australia it was not the leftist government that brought about the sweeping changes but rather was the conservative government in place at the time. I don’t see any other way to stop this problem other than a constitutional amendment b/c there is to much money against any kind of meaningful legislative change. Is this a drastic view, absolutely. Unrealistic, recent history would answer in the affirmative. But tacking this beast takes such measures, we know that. If we care to look outside our borders, there are working models that can guide us but are we willing to have the courage to take such steps, so far the answer has been a resounding “Hell no.”

    1. SHG Post author

      There are a great many very controversial, very dubious, assumptions in your comment. My inclination is to trash your comment because it goes so absurdly far afield of anything remotely related to the post, and I have no interest in tolerating a worthless discussion about the efficacy of the Second Amendment here.

      To the extent that there is a sufficient movement to amend the Second Amendment, that would address the problem. But until then (and that is NOT the subject of this post, and no further comments on it will be allowed), the law remains the law. And, from what I see, there is no national support to suggest that the Second Amendment should be changed. So let’s deal with reality rather than fantasy.

      1. Dale Savage

        Dealing with the reality would be to make meaningful change to the current status quo that is failing horribly. The reality is that too many people are not willing to face the actual problem. It’s not complicated but many try to make it complicated b/c that serves their agenda. The political band aids that you posted are exactly that, which is why I posted what I did, none of them hit the mark of what needs to happen to resolve this problem. If we want to solve the problems of mass shootings, whether by ticked off people, suspected terrorists or actual terrorists then we need to recognize the the lack of change and advocates supporting no change in gun law, hasn’t changed a single thing.
        My point to you and the rest of the arguments that are mentioned in the post is that you are all wrong and have taken your eye off the ball, or more apt you never had your eye on the ball in the first place. That’s dealing with the REALITY you so quickly dismissed, deciding what the problem is before you can constructively address it. What I suggested solves the issue of arguing whether “Suspected is Close enough” is constitutional or not b/c you never even get to there. Many people have jumped on the bandwagon of San Bernardino incident and tried to turn it from a mass shooting to an act of terrorism as if that will somehow make it a completely different beast to deal with that has a completely different resolution than just a mass shooting. Clearly I disagree.

        On a side note I appreciate the fact that you did not remove the post and took the time to respond, whether we disagree or not I enjoy you banter even if I end up on the grumpy side of it.

        1. SHG Post author

          If you want to lead the charge to repeal the Second Amendment, go for it. I’m going to make the wild assumption that it won’t be repealed and deal with the existing reality that we have a Second Amendment, it establishes a fundamental individual right to keep and bear arms, and, that being the case, I will honor it just as I ask that cops honor the amendments I embrace, like the 1st, 4th, 5th, 6th and 8th. I will love them all, because if I don’t, I give up my principled expectation that my favored amendments are honored by others.

          Now, that said, you’re free to discuss repeal of the Second Amendment all you want. Just not here. And come for the grumpty banter, stay for the Bananas Foster. 😉

  3. Jay

    So, I hate to be cynical (or conspiracy nuttty), but my gut reaction to the “terror watch list” is it is simply a list the government can use to deprive people it does not like the right to fly. Now they get to take away the guns of people they don’t like as well. In other words the title of the list is just there for effect, it’s really just the government’s enemies list. The fact that they would put forth this proposal after a case that has nothing to do with terrorism just seems to add legitimacy to my conspiracy addled theory. Spooky stuff. Kind of amazing that anyone would think that THIS is a good idea. Giving the government the authority to deny rights without due process to anyone on a whim is pretty much just tyranny. I’d love to see how the NYT folks will feel about this proposal once Trump is president.

    1. angrychiatty

      Hate guns. But anyone here who thinks this is a trustworthy method of gun control should be required to read your prior writings on the Ibrahim case, including the government’s pimpy ass move of putting one of the plaintiff’s witnesses (her daughter) on the list to make it difficult or impossible for her to testify.

  4. John Barleycorn

    Don’t miss page one of “that” newspaper today (12/05/15)

    “They distract us with arguments about the word terrorism. Let’s be clear: These spree killings are all, in their own ways, acts of terrorism.”

    “No right is unlimited and immune from reasonable regulation.”

    In other news….The Big Wheel is making a comeback.

  5. Pingback: A President’s Heart and Mind | Simple Justice

  6. Tommy Gilley

    The scariest element to this whole debate in my mind is the public and legislatures ease with which they take this suggestion. I’ve had personal discussion with non gun control advocates who think this is a good idea.

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