NRA Now Backing "No Fly, No Buy..."?
- Thread starter LogicMan
- Start date
If the state already has evidence in support of its reasonable suspicion of criminal activity, why did it wait for the person to buy a firearm?
If the person hasn't engaged in any criminal activity, but someone had a feeling they might in the future, that isn't any kind of real reasonable suspicion, and the state doesn't need an extra 72 hours.
I believe you intended that rhetorically. It would be nice to see the text of any proposed legislation and have a long enough period to give it scrutiny before anything is passed.
The "interest" would be keeping a terrorist from purchasing a weapon. I don't think anyone here should have a knee-jerk reaction to that. If we would have known that the Orlando shooter had terror ties, and the FBI had strong evidence that he did (which I believe they actually had, he admitted to making the ISIS support comments during an interview but passed it off as "joking"), then would anyone seriously sell him a gun during a private transaction? Would you sell a firearm to a person that you KNEW was being investigated for terrorism? I would not, and I dare say the majority here would also not. Keeping a terrorist from obtaining a weapon, when they are likely to commit mass murder, IS A VALID GOVERNMENT INTEREST.
2A rights SHOULD NOT be infringed based on reasonable suspicion. MAYBE probable cause. But the answer to the question is that reasonable suspicion does not require judicial review. Probable cause does. If you are on the list because you are being investigated, but you try to purchase a firearm you must wait. If the state has yet to develop probable cause (better be the standard used) then it would not pass judicial review. So you will get to purchase your firearm
I am LEO. I don't go to a judge and obtain judicial review to do physical surveillance (i.e. watching their house to see their comings and goings). I don't go to a judge to ask permission to search their trash (it is abandoned property). I don't go to a judge to ask permission to send an undercover agent to said person and attempt to acquire evidence of their crimes through conversation, or to attempt to purchase contraband (drugs, stolen property, etc.). In short, I don't ask for permission to investigate. If I went to a judge to seek permission to do these things, the court would be clogged with silly administrative hearings such as this. I do ask for permission from a judge if I plan on a search covered under the 4th amendment. Just as infringing on a 2nd amendment right should face judicial review.
The FBI terror watch list is a list of names that they have active, open investigations on. The 800,000 number sounds like a lot, but keep in mind the vast majority of the names on that list are foreign nationals outside the US.
Not at all what the terror watch list is. It is a list indicating people that are being investigated for suspected criminal (terrorist) activity. The crime very well may have already been committed, and they are simply putting the pieces together. Or no crime may have been committed but they received intelligence stating that the person is involved in terrorism. In the first instance, if they have some good evidence pointing to an individual being involved in a crime, then judicial review would likely deny the purchase of a firearm. In the second instance, judicial review should (better) not deny the purchase just because intelligence received from an obscure source indicated "you are involved." Heresay evidence carries no weight in court, but it can begin investigations.
Remember, you can be guilty of providing material aid to terrorists, conspiracy to commit a terrorist act, and a host of other valid crimes even if the actual terrorist act has not been committed yet. If you make extensive plans to shoot up the court house with Mr. Aloha Snackbar, and you are designated as the guy who is going to purchase the weapon and ammo. You plan with Mr. Snackbar, you even recon your target. You then go purchase the weapon and deliver it to Mr. Snackbar... except Mr. Snackbar is an undercover FBI agent and you are now going to prison for a long time. You never shot up the courthouse, but you made an overt act to further that plan and conspiracy.
There is a valid interest in trying to track down, stop, and prosecute terrorists. Too much ballyhoo is being made about secret lists. It's called criminal intelligence. Remember the Orlando shooter was on the terror watch list while he was being investigated, but was removed when the investigation was closed. It appears there is an effort to use "the list" responsibly. So long as legislation requires judicial review, you aren't barred from firearms simply because you are some arbitrary "secret" list... that probably isn't that arbitrary.
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5whiskey said:
The 72 hour delay doesn't stop a sale, it delays it. "Keeping a terrorist from purchasing" can't be a reason for a 72 hour delay.
If a person is a terrorist, he should already be arrested, not just stopped from a purchase. In any event, if the government knows one is part of a criminal conspiracy, then it doesn't need 72 hours to acknowledge that.
If the state knows that a person is "likely to commit mass murder", it should not just be delaying his firearm purchase, right?
5whiskey said:
Exactly so. A conversation or simple observation don't abridge any constitutional rights. A waiting period to exercise the right does. That's why the state needs some rational basis for doing it.
Either the state already has a reasonable basis for concluding that a person is, is about to or has committed a crime, in which case they can prosecute, or they are investigating whether the person is involved in crime. If a person is merely under investigation, he isn't an adjudicated criminal and it is inappropriate to violate his constitutional rights.
5whiskey said:
In which case you are involved in a criminal conspiracy. Why not prosecute each of those people for criminal conspiracy.
In the absence of judicial review, neither you nor I can know why an individual is on a federal list. That proposed 72 hour delay is chronologically prior to any adjudication.
5whiskey said:
I agree. A 72 hour waiting period for people on a list doesn't do any of those.
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zukiphile, you miss the point entirely. This isn't a nice clean neat world where you instantly go from not being known by law enforcement at all to law enforcement having a case ready for a trial and criminal conviction overnight. Let's say someone involved in an investigation has already discussed conducting an attack with an undercover, but law enforcement is waiting until they make an overt effort toward completing said attack. Conspiracy isn't a conspiracy when you only talk about it. You have to take an action toward committing the crime. You don't have to commit it... Just make an action toward completing it. So you wait until said person makes an overt action before arresting. In the meantime do you want them purchasing firearms.
Even different, sometimes the government has proof enough to arrest someone, however they want to identify all accomplices. If they make the arrest, an undercover may not be introduced to accomplices. Or they may flee or destroy evidence if everyone involved isn't identified/arrested at once. Should the individual still be allowed to purchase a firearm? Even if there is overwhelming proof but they haven't been arrested yet because of the investigation strategy?
You also chose not to answer a specific question I proposed. Would you conduct a private sell of a firearm with someone that you knew was being investigated for suspected terrorism?
As to the waiting period... I've already explained that. You don't need to obtain Judicial review to give permission to investigate. Should it hit that they are trying to purchase a firearm while being investigated, you take the evidence you have collected thus far and present it to a judge. Let the judge decide. If investigators don't meet the timeline, then the purchaser gets their firearm by default. If the judge decides there isn't probable cause to bar a purchase, then the purchaser gets their firearm. If then judge does find probable cause... Well then you are denied.
I would like to see an appeals process incorporated if they go with this type of legislation. At the point they are denied a firearms purchase the cats probably out of the bag that a suspected terrorist is under investigation anyway. No secret anymore. And in case someone ends up on the list for bogus reasons, then they can defend themselves.
Even different, sometimes the government has proof enough to arrest someone, however they want to identify all accomplices. If they make the arrest, an undercover may not be introduced to accomplices. Or they may flee or destroy evidence if everyone involved isn't identified/arrested at once. Should the individual still be allowed to purchase a firearm? Even if there is overwhelming proof but they haven't been arrested yet because of the investigation strategy?
You also chose not to answer a specific question I proposed. Would you conduct a private sell of a firearm with someone that you knew was being investigated for suspected terrorism?
As to the waiting period... I've already explained that. You don't need to obtain Judicial review to give permission to investigate. Should it hit that they are trying to purchase a firearm while being investigated, you take the evidence you have collected thus far and present it to a judge. Let the judge decide. If investigators don't meet the timeline, then the purchaser gets their firearm by default. If the judge decides there isn't probable cause to bar a purchase, then the purchaser gets their firearm. If then judge does find probable cause... Well then you are denied.
I would like to see an appeals process incorporated if they go with this type of legislation. At the point they are denied a firearms purchase the cats probably out of the bag that a suspected terrorist is under investigation anyway. No secret anymore. And in case someone ends up on the list for bogus reasons, then they can defend themselves.
Here's what the ACLU says about it.
https://www.aclu.org/issues/national-security/privacy-and-surveillance/watchlists
The U.S. government maintains a massive watchlist system that risks stigmatizing hundreds of thousands of people—including U.S. citizens—as terrorism suspects based on vague, overbroad, and often secret standards and evidence.
...
government watchdogs have found that as many as 35 percent of the nominations to the network of watchlists are outdated and tens of thousands of names were placed on lists without an adequate factual basis.
...
government watchdogs have found that as many as 35 percent of the nominations to the network of watchlists are outdated and tens of thousands of names were placed on lists without an adequate factual basis.
https://www.aclu.org/us-government-watchlisting-unfair-process-and-devastating-consequences
The result is that innocent people can languish on the watchlists indefinitely, without real recourse.
A bloated and unfair watchlist system does not make us secure, and the ACLU has long called for fundamental reform. If the government is to use watchlists, it must institute narrow, specific criteria for placing individuals on them; apply rigorous procedures for reviewing, updating, and removing erroneous entries; and limit the use of such lists such that they do not amount to punishment without charge. Individuals must be provided with a meaningful, participatory process by which they can challenge their inclusion on a watchlist before a neutral decision-maker.
A bloated and unfair watchlist system does not make us secure, and the ACLU has long called for fundamental reform. If the government is to use watchlists, it must institute narrow, specific criteria for placing individuals on them; apply rigorous procedures for reviewing, updating, and removing erroneous entries; and limit the use of such lists such that they do not amount to punishment without charge. Individuals must be provided with a meaningful, participatory process by which they can challenge their inclusion on a watchlist before a neutral decision-maker.
No, of course not!
But once you take that list and use it to deny a person's rights, THEN there needs to be due process.
Denying people the ability to buy guns because they're on a watchlist is nothing more than the newest creative answer to the question: "How can we restrict the ability of people to buy guns without having to prove them guilty of anything?"
5whiskey said:
Actually, I don't. See below.
5whiskey said:
Emphasis added.
Civil rights aren't about what you want. They are about rights people hold against the government.
Prosecutors face choices every day. If someone is so dangerous that he shouldn't be walking around exercising those rights, the state can sit back and watch, or prosecute. His choice.
That he doesn't like a choice doesn't create a grey area.
5whiskey said:
Pursuing that strategy is a prosecutorial decision that should not in itself curtail a constitutional right. Note that if the prosecutor need to show his evidence in court to block an arms sale, his wider identification strategy is also wrecked.
All of those are his choices.
5whiskey said:
I assumed it was rhetorical because it isn't incisive or pertinent to the issue of whether the government is entitled to block a sale for 72 hours.
I don't mind answering your question though. What I would do would depend on what I know about the person.
I've known americans who actively supported terrorist activities, and my personal contempt for that sort of thing isn't something I would express in mixed company. I wouldn't sell those people a gun, an aspirin, or anything the the one bullet to do the right thing.
However, I am not the government, and a "suspected terrorist" should be simply a citizen with all the rights of citizenship until a court determines otherwise.
5whiskey said:
5, with due respect, you've not explained why a 72 hour delay is related to any legitimate governmental interest.
Are you asserting that individuals are out in the terrorist watch list and only then investigated when they try to buy a gun? That's not rhetorical.
Or are you asserting that people are already investigated before they are placed on the list? In that event, the state doesn't need another 72 hours.
5whiskey said:
I agree. Another way to be sure that someone's rights aren't erroneously violated by inclusion on a standard free government list is not to permit those lists to be given any legal effect.
This is true, however that right could be curtailed and the individual could be arrested when they attempt to purchase a firearm. This would allow investigators time to attempt to identify others involved, but if the individual tries to purchase weapons investigators may decide that time is up and make an arrest. That may be a better option than allowing a known terrorist, with good evidence that could be proven in court, to purchase a firearm. Accounting for time to attempt to identify accomplices would be another purpose of NOT seeking judicial review of barring the firearms purchase until they actually go to purchase the firearm.
In reference to the bold part, your right has not been curtailed until you are actually barred that right. The government could have probable cause to keep you from purchasing a firearm for 6 months, and they would exercise that ability, but you personally have not had that right abridged until you actually attempt to make a purchase and are denied.
I have thoroughly explained it...
No, I have asserted that individuals are on the watch list when an investigation begins on them. You may not have probable cause for arrest, or any GOOD reason to revoke any constitutional rights once the investigation begins. You may not have it 6 months into the investigation. But you are in fact under investigation. The point of the 72 hour window is for the investigators to present evidence to a judge in an effort to block your purchase. You will ask why didn't they present that evidence before the attempted purchase? Why not seek a Judge's order barring the firearms purchase as soon as they established probable cause? Again I say there are many times that police will have probable cause to arrest someone, yet because of investigative strategy they wait. This could be for any number of reasons. However the decision to wait may be terminated by changes in the investigation. In this case, attempting to purchase a firearm may be a change in the investigation worthy of expediting arrest even if you may leave co-defendants and accomplices on the table.
Counter-Terrorism is Chess, not Checkers. There is a lot of strategy involved and there are compelling government interests in doing certain things. I am all for 2A rights, but we don't need to scream like banshees if there is a legitimate LIMITED IN SCOPE proposal that could help keep terrorists from purchasing weapons legally. So long as it does not infringe on the right of your average citizen, or if a mistake is made that infringement is short in scope (72 hours). In the end, you and I are clearly not going to see eye to eye. That's fine, though. That's the beauty of America. We can express our beliefs and opinions even when others don't agree with them. You have been very respectful, despite disagreeing. I appreciate that
Lohman you are correct. "The List" 
itself doesn't bar you from purchasing a firearm, or it shouldn't. Actually, it currently doesn't. If the list itself infringed on 2A rights, then I would not support any "no fly, no buy" legislation. It's purpose is to share with other agencies the fact that someone is being investigated for terrorism. Any legislation I would support would not restrict your 2A rights simply for being on the list. A Judge would have to rule that you can't, and there would be due process via a method to appeal.
itself doesn't bar you from purchasing a firearm, or it shouldn't. Actually, it currently doesn't. If the list itself infringed on 2A rights, then I would not support any "no fly, no buy" legislation. It's purpose is to share with other agencies the fact that someone is being investigated for terrorism. Any legislation I would support would not restrict your 2A rights simply for being on the list. A Judge would have to rule that you can't, and there would be due process via a method to appeal.5whiskey said:
I agree.
5whiskey said:
Your understanding on this departs from the current state of the law on waiting periods for exercise of a constitutional right. A delay that isn't reasonably related to a legitimate governmental interest isn't going to pass the current analytic framework.
How that 72 hour delay reasonably relates to a legitimate governmental interest is what you've not articulated.
5whiskey said:
That's problematic. Having one's name on a list that leads to a delay in the exercise of a right before there is any basis for the curtailment categorically can't reasonably relate to a legitimate purpose.
5whiskey said:
Indeed it may be. However that doesn't take 72 hours.
If X is a known stinker, and I am looking at his friends Y and Z as potentially prosecutable stinkers as well, but I don't under any circumstances want X to buy a firearm from a federally licensed dealer, it doesn't take 72 hours to know that.
If X is known stinker, and it really doesn't matter whether he buys a rifle because he just bought 11 pressure cookers on Amazon, then the state isn't going to use the 72 hour delay anyway.
That's the problem with the waiting period. It doesn't relate to anything useful.
5whiskey said:
Emphasis added.
That's not a good standard. Many extra-constitutional government acts could deny a terrorist a weapon. That isn't a reasonable excuse for such an act.
5whiskey said:
Thanks. We all do this hedonically and I am gratified that you haven't taken vigorous argument as personal animus.
Ahh... but it could take 72 hours to arrange for a hearing by a judicial official. You can not expect the FBI to gather the case file and appear before a Federal Judge within an hour of the NICS check being called in. You have not obtained Judicial review of the case yet for reasons we've already discussed, but now you must get it to deny the purchase while not violating due process. You can't get it within the hour. Getting it within the day would be very hard pressed. What if this occurs on a Saturday and there is no judge to review until Monday? The purpose of the 72 hours isn't to harass someone, it's to allow an investigator time to make their case that the firearm purchase should be denied.
Nor should my argument be construed as any form of personal animus towards you. We disagree and it is what it is.
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This might be a good point to look at the actual proposals (Senate Amendments 4720 and 4749)
Feinstein's proposal - Senate Amendment 4720
Cornyn's proposal - Senate Amendment 4749
Feinstein's proposal - Senate Amendment 4720
(Purpose: To authorize the Attorney General to deny requests to transfer a firearm to known or suspected terrorists)
At the appropriate place, insert the following:
Sec. ___. Hereafter, the Attorney General may deny the transfer of a firearm if the Attorney General determines, based on the totality of the circumstances, that the transferee represents a threat to public safety based on a reasonable suspicion that the transferee is engaged, or has been engaged, in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources therefor. For purposes of sections 922(t)(1), (2), (5), and (6) and 925A of title 18, United States Code, and section 103(g) of Public Law 103-159 (18 U.S.C. 922 note), a denial by the Attorney General pursuant to this provision shall be treated as equivalent to a determination that receipt of a firearm would violate section (g) orof section 922 of title 18, United States Code, or State law. A denial described in this section shall be subject to the remedial procedures set forth in section 103(g) of Public Law 103-159 (18 U.S.C. 922 note) and the intended transferee may pursue a remedy for an erroneous denial of a firearm under section 925A of title 18, United States Code. Notwithstanding any other provision of law, such remedial procedures and judicial review shall be subject to procedures that may be developed by the Attorney General to prevent the unauthorized disclosure of information that reasonably could be expected to result in damage to national security or ongoing law enforcement operations, including but not limited to procedures for submission of information to the court ex parte as appropriate, consistent with due process. The Attorney General shall establish, within the amounts appropriated, procedures to ensure that, if an individual who is, or within the previous 5 years has been, under investigation for conduct related to a Federal crime of terrorism, as defined in section 2332b(g)(5) of title 18, United States Code, attempts to purchase a firearm, the Attorney General or a designee of the Attorney General shall be promptly notified of the attempted purchase.
Cornyn's proposal - Senate Amendment 4749
boatdoc173
New member
great post Logic man--it is the crux of the issue--due process
and their stance that you have to prove your innocence--really?
and their stance that you have to prove your innocence--really?
Its a complicated issue, but the reality that for most Americans they want a simple and easy answer. Getting into a discussion of "due process" and possible government abuses of power causes most non-gun folks' eyes to glaze over. The appeal of saying something like "lets not allow people on a government watch list from buying guns" is politically appealing in its simplicity.
Personally I take a dim view of "government lists" in general. Several years ago I went to the airport and tried to get my boarding pass from the kiosk at the airline for which I had purchased my ticket. The machine would not allow me to get the pass, but stated that I had to check with airline officials. Going to the desk (after waiting on a lengthy line with the folks checking luggage or actually buying a ticket) I finally reached the airline representative, who after plunking my name into the computer, told me to wait while he went for some TSA officials. These officials then asked me to go to a room where they asked me various questions about myself, and directly refused to answer my questions about what it is they were concerned about. For what its worth, I'm a retired Army Lieutenant Colonel, who had carried a Top Secret security clearance while on active duty. I have never been arrested, let alone charged with a crime. After several minutes of questioning I was given my boarding pass. The same thing occurred the very next time I was flying commercially. Fortunately a friend who had been a travel agent informed me of a website where I could download a request form to send to the TSA. I completed the form and a few months later received a letter from the TSA giving me what they call a TSA Redress Number. The letter never says whether or not they have suspicions about me or what list if any I am on, let alone if I have been taken off said list. This was several years ago. Recently I returned from my first overseas trip in 35 years, and when attempting to go through the U.S. Customs/Border Security station in the airport, after completing the questions on the computer that I was directed to, my "receipt", which normally allows a U.S. citizen to quickly go through the security to re-enter the country, came out with a big "X" on it and I was directed to the line for NON-citizens entering the country. Eventually I was "cleared" and allowed to re-enter the U.S. I still have no clue as to why I am subject to this extra scrutiny and harassment. Also FWIW, I asked for assistance on this from my Congressman and was told that he could do nothing about this for me. So forgive me if I am not as trusting of the government as some seem to be and not so willing to see my 2nd Amendment rights possibly withheld because some government bureaucrat incorrectly added me to some government watch list.
Personally I take a dim view of "government lists" in general. Several years ago I went to the airport and tried to get my boarding pass from the kiosk at the airline for which I had purchased my ticket. The machine would not allow me to get the pass, but stated that I had to check with airline officials. Going to the desk (after waiting on a lengthy line with the folks checking luggage or actually buying a ticket) I finally reached the airline representative, who after plunking my name into the computer, told me to wait while he went for some TSA officials. These officials then asked me to go to a room where they asked me various questions about myself, and directly refused to answer my questions about what it is they were concerned about. For what its worth, I'm a retired Army Lieutenant Colonel, who had carried a Top Secret security clearance while on active duty. I have never been arrested, let alone charged with a crime. After several minutes of questioning I was given my boarding pass. The same thing occurred the very next time I was flying commercially. Fortunately a friend who had been a travel agent informed me of a website where I could download a request form to send to the TSA. I completed the form and a few months later received a letter from the TSA giving me what they call a TSA Redress Number. The letter never says whether or not they have suspicions about me or what list if any I am on, let alone if I have been taken off said list. This was several years ago. Recently I returned from my first overseas trip in 35 years, and when attempting to go through the U.S. Customs/Border Security station in the airport, after completing the questions on the computer that I was directed to, my "receipt", which normally allows a U.S. citizen to quickly go through the security to re-enter the country, came out with a big "X" on it and I was directed to the line for NON-citizens entering the country. Eventually I was "cleared" and allowed to re-enter the U.S. I still have no clue as to why I am subject to this extra scrutiny and harassment. Also FWIW, I asked for assistance on this from my Congressman and was told that he could do nothing about this for me. So forgive me if I am not as trusting of the government as some seem to be and not so willing to see my 2nd Amendment rights possibly withheld because some government bureaucrat incorrectly added me to some government watch list.
Obambulate
New member
It's tyrannical. It's thought crime.
Even the "no-fly" list makes absolutely no sense. Why does it even matter who you are? What matters is WHAT YOU BRING ON THE PLANE. Bin Laden could board a flight but how is he gonna hijack a plane, with his toothbrush?
What happens to the person put on a no-gun list? We know he can't buy a gun, but what else? Does his home get SWATted, his firearms collection taken with no compensation?
One example Obama gave as a reason to put someone on these lists is, "visiting an ISIL website". Really? What if you are a journalist writing a story about the ISIL threat? What if you are a citizen who wants to know more about our enemy so he can possibly spot ISIL members here in the U.S.? What if you click on a CNN video of an ISIL beheading? What if you innocently click a link and it redirects you to a "bad" website? Where is the list of websites that will get you on the no-gun list so we can avoid those? What words in emails will get you on the list?
Completely tyrannical.
Even the "no-fly" list makes absolutely no sense. Why does it even matter who you are? What matters is WHAT YOU BRING ON THE PLANE. Bin Laden could board a flight but how is he gonna hijack a plane, with his toothbrush?
What happens to the person put on a no-gun list? We know he can't buy a gun, but what else? Does his home get SWATted, his firearms collection taken with no compensation?
One example Obama gave as a reason to put someone on these lists is, "visiting an ISIL website". Really? What if you are a journalist writing a story about the ISIL threat? What if you are a citizen who wants to know more about our enemy so he can possibly spot ISIL members here in the U.S.? What if you click on a CNN video of an ISIL beheading? What if you innocently click a link and it redirects you to a "bad" website? Where is the list of websites that will get you on the no-gun list so we can avoid those? What words in emails will get you on the list?
Completely tyrannical.
I get the feeling that the gun lobby has been entirely politically outmaneuvered on this one and we have, as a whole, sat back while it happened.
Pretty hard to object to these secret lists with moral authority only when they target you and yet it seems we have allowed just that to happen.
Pretty hard to object to these secret lists with moral authority only when they target you and yet it seems we have allowed just that to happen.