One usually needn’t work too hard to find examples in the New York Times of creative constitutional thinking, but a recent op-ed piece by Gail Collins deserves special attention. In short, Ms. Collins finds it outrageous that persons appearing on the FBI’s Terrorist Watch List (TWL) are not denied the right to own firearms outright. The thrust of her argument is an appeal to analogy: “… if you are on the Terrorist Watch List, the authorities can keep you from getting on a plane but not from purchasing an AK-47.” She cites in support the lame response of Senator Lindsey Graham to this issue in a recent hearing of the Senate Homeland Security Committee in which the topic of discussion was a proposed bill to ban persons appearing on the TWL from purchasing firearms: “when the founders sat down and wrote the Constitution, they didn’t consider flying.”
Didn’t consider flying? Flying, like driving or for that matter transportation by any mode using public facilities, is not a right guaranteed by the Constitution. Such travel is broadly recognized as a privilege and thus subject to regulation by the state. On this point Ms. Collins wins and Sen. Graham loses. Purchasing an AK-47? By the National Firearms Act (NFA) of 1934, sale and ownership of weapons capable of fully-automatic fire (as is an AK-47) is strictly controlled by the ATF; potential purchasers are subject to a background check which presumably includes taking a peek at the TWL. But this misses the point. Despite what Ms. Collins may wish, the right to own firearms is, unlike a “right” to fly, guaranteed by the 2nd Amendment.
Let’s turn our attention to the TWL itself. Who is on this list and what are the legal ramifications of being on it? According to the FBI, “The TSDB [watch list database] contains information on both international and domestic terrorists.” Foreigners (in the present case – international terrorists) are prohibited from purchasing firearms. One group down. That leaves “domestic terrorists.” The FBI states further “only individuals who are known or reasonably suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism are included in the TSDB.” This does not entail that these individuals, by virtue of their appearance on the TWL, have committed crimes.
So, if we agree we can’t sell guns to foreigners of any stripe and further agree that suspected terrorists ought not to fly, Ms. Collins is left with the following crumb of an argument: persons suspected of being domestic terrorists should lose, by fiat, their 2nd Amendment rights to purchase firearms – because we fear they might do something bad. One might respond at this point that the FBI knows what they’re doing and if you’re an average law-abiding citizen you need have no fear of ending up on the TWL and thus having your rights modulated by fiat. However, as we’ve seen in last year’s flap over DHS’s release of the document “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” the current administration is prepared to be quite flexible on the matter of who can be deemed “related to terrorism.”