04 December 2015

Watch Lists and Gun Control- A Letter to My Fellow Liberals

Hi fellow liberals.  It’s me, Mike.  Can we talk for a minute?  Now you know I love each and every one of youalthough  the “nominate #Bernie or I’m gonna take my bat and ball and go home” crowd really tests me—and I think I’ve been a staunch advocate for gun control, but we’re going just a little bit crazy.  There’s a lot of complaining about the defeat of a bill that would have prevented people on the terrorism watch list from buying guns.  What’s not to love, right?  They’re on a TERRORISM WATCH LIST for crying out loud! 

Here’s the problem.  Those people have not been convicted, or even charged, with any crime.  At all.  That’s a real problem.  Our Constitution, for good or ill, prevents the government from stripping away rights without due process.  And, yes, buying a gun is a right.  Sure, we could have a big argument about the militia clause in the Second amendment.  Sources on the ratification debate sure look like the framers of the amendment envisioned militia service in conjunction with the right to keep and bear arms (hunting also comes up…protection against one’s own government does not).  This dovetails nicely with the general fear of standing armies, which citizen militias were supposed to make redundant.

But let me clue you in on a dirty little secret, one the right has known for years: the Constitution means precisely what five justices say it means.  No more, no less.  There is no Platonic form of the Constitution, no absolute meaning waiting to be discovered.  Since the justices have determined that the right to keep and bear arms is an individual right, it is.  Even stranger, their decision means it’s been there all along.  Until another set of justices decides differently.

Which is the long way around saying that any action to control access to firearms has to contend with the civil right in the Constitution.  As long as gun buying is a right, then, it cannot be arbitrarily taken away.  For instance, by some bureaucrat adding your name to a watch list.  And passing a law?  I would guess that any such law would run afoul on the prohibition on bills of attainder right there in the Constitution (Article One, Section Nine, Paragraph 3).

Now I don’t for a moment think that the GOP voted against the bill for any reason other than that it’s in the pocket of the NRA.  Or perhaps as a simple negative reaction to Democratic proposals. But it’s possible to cast the right vote for the wrong reasons.  The watch list is notoriously faulty, with thousands of names on it that shouldn’t be—remember Ted Kennedy? 

And, of course, passing a law that blocks people on the watch list from purchasing guns is an opportunity for abuse.  We’re positively giddy that we might stop suspected Islamist terrorists from purchasing guns.  But, and this may be a bit of a slippery slope argument, would it be hard to imagine a future Richard Nixon having political opponents placed on such a list?  What other liberties might we permit to be curtailed by administrative fiat?  Best to avoid the temptation altogether, and that means stopping here, by protecting the due process and equal protection rights of an admittedly unpopular group.


So, really, stop your squawking unless you’re just trying to score cheap political points.  Focus your efforts on real reforms: universal background checks, waiting periods, licensing and insurance requirements…and not on “fixes” that accomplish nothing.  Every time we take our eyes off the prize, and try for a quick feel-good score, we lose a valuable opportunity to engage the public on actual reform.  And that’s a tragedy.