Joyce Lee Malcolm is the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University. Her work was cited in the U.S. Supreme Court opinion in District of Columbia v. Heller.
Rahm Emanuel’s famous advice, “You never want a serious crisis to go to waste,” is once again in play. Rather than focusing on how the Islamic terrorist who perpetrated the worst mass shooting in our history escaped our security measures, or how we might launch a more effective attack on ISIS, we have calls from Hillary Clinton and other Democrats for more domestic gun laws. Back come the calls for reinstating the assault weapon ban and baring those on the “no-fly” or “terror suspect” lists from purchasing a firearm. This was President Obama’s response last January to the terrorist attack in San Bernadino that killed 14 people and wounded 22. The focus on new gun control measures diverts attention from serious government failures and the threat we face from Islamic militants. Further there are problems with these gun proposals.
First the assault weapon ban. During the Bill Clinton administration the government passed a so-called assault weapon ban on 18 types of rifles and shotguns. The definition of an “assault weapon” however is, as a recent Wall Street Journal editorial reminded us, “purely political because the difference between a regular rifle and what Washington calls an assault weapon is mostly cosmetic.” In the public mind the label “assault weapon” congers up visions of an Uzi or AK-47. But the weapons the government designated assault weapons included common firearms that simply had cosmetic features that made them look like military weapons, they were not machine guns. The gun used in Orlando was a Sig Sauer MCX. Such popular hunting rifles are owned by millions of law-abiding Americans. More importantly the ban had no effect on crime. The listed weapons were used in only about 2% of gun crimes before the ban and less than 3% in 2002 when the ban expired. Government studies of the dramatic decline in gun crimes over the past twenty years failed to find any of the reduction due to the assault weapon ban.
As for keeping people whose names are on the FBI’s terror watch list and the no-fly list from buying a firearm, sensible as it may sound it would work a grave disservice to those whose names are there in error. These lists are compiled in secret and include people who have no specific evidence against them and whose names merely sound like, or are spelled like, someone else’s. The late Senator Edward Kennedy was surprised to find his name on the no-fly list. That list is classified so it is uncertain how many names are on it but estimates vary from 21,000 to 47,000. For the past five years the American Civil Liberties Union has challenged the law’s operation. Last year the ACLU complained that in twelve months the government’s secret list of suspected terrorists banned from flying to or within the United States had more than doubted. They estimated that 35% of the nominations to the terrorist lists were outdated while the government no-fly list included tens of thousands of names placed on the lists without any adequate factual basis. Nor has the government any way to correct these errors and permit people to clear their names. The ACLU has been suing to change the list’s redress process to provide meaningful due process. Their challenge is on behalf of fifteen American citizens and lawful residents who found themselves on the list unable to fly. These include two Marine Corps veterans, one of whom is disabled, a US Army veteran, and a US Air Force veteran. Now these individuals and others like them would also be stripped of their basic right to be armed for their self-defense.
Ironically many of the people who demanded American intelligence agencies be stripped of the ability to track bank transactions and monitor patterns of telephone calls to and from suspected terrorist groups, tactics they see as threats to privacy and speech rights, insist on depriving individual Americans of their right to be armed on the mere suspicion they pose a danger. If we are to prevent further attacks it is imperative that the political conversation shift, and shift promptly to better ways to track terrorists and combat the terror threat from ISIS.