[Editor's note: This story was updated on Wednesday, Sept. 1, 2010.]
(Commentary) - The only thing stupider than allowing a known foreign terrorist into the United States may be allowing that terrorist to buy guns.
Current U.S. law allows this to happen. It also allows known terrorists on the no-fly list to buy guns. Perhaps worse still, the U.S. government has approved background checks for watch-listed terrorists to possess explosives in the United States.
From March 2009 through February 2010, according to prepared congressional testimony from Eileen Larence, the Government Accountability Office’s director of homeland security and justice issues, 272 National Instant Criminal Background Check System (NICS) checks turned up individuals on the terrorist watch list. All but one was for a firearms purchase. The other was for explosives.
“One of the 272 transactions involved an explosives background check, which was allowed to proceed because the check revealed no disqualifying factors under the Safe Explosives Act,” Larence testified.
Of the 271 firearms-background checks that revealed the prospective gun purchaser was on the terrorist watch list, only 22 resulted in the would-be purchaser being denied a gun. The other 249 transactions were allowed to proceed.
Some of the watch-listed terrorists allowed to buy guns were on the no-fly list. “According to FBI officials, several of the 272 background checks resulted in matches to watch list records that—in addition to being in the FBI’s Known or Suspected Terrorist File—were on the Transportation Security Administration’s no-fly list,” Larence testified. “In general, persons on the no-fly list are deemed to be a threat to civil aviation or national security and therefore should be precluded from boarding an aircraft. According to FBI officials, all of these transactions were allowed to proceed because the background checks revealed no prohibiting information under current law.”
According to Larence’s testimony, presented to the Senate Homeland Security Committee in May, in the six years from February 2004 through February 2010, 650 separate individuals on the terrorist watch list went through NICS background checks because they were trying to purchase guns or secure a license for explosives. Because some made multiple transactions, the total number of attempted gun or explosives transactions involving watch-listed terrorists who underwent FBI NICS checks during the period was 1,228.
Ninety-one percent of these transactions--1,119--were approved.
What is going on here? The law, as it currently stands, does not prevent a “known or suspected terrorist” (KST) from purchasing guns and explosives in the United States.
As the GAO’s Larence told the Homeland Security Committee, “being on the watch list does not automatically disqualify someone from possessing or receiving firearms or explosives. Rather, there must be a disqualifying factor such as a felony or immigration violation.”
Daniel D. Roberts, assistant director of the FBI’s criminal justice information services division, told the Homeland Security Committee that the FBI cannot even necessarily stop a terrorist it has under active investigation from purchasing a gun. When a KST under active FBI investigation seeks to purchase a gun and undergoes a NICS check, Roberts told the committee, “the FBI case agent is immediately notified and placed in direct contact with a FBI NICS examiner to determine whether there is any information in the case file, or known to the case agent, that would disqualify the KST under the Brady Act from possessing a firearm. Since this process was initiated in 2004, approximately 1,200 such encounters have occurred, and in approximately 90 percent of those, no prohibiting information was found to deny the transfer.”
When the prospective gun buyer is a foreign national, they also check his immigration status. “If the transferee indicates that he or she is not a U.S. citizen then the NICS also queries the databases of the Department of Homeland Security to ensure that the transferee’s immigration status does not preclude them from obtaining a firearm.”
Now, two things need to be kept in mind in light of these facts: 1) the inalienable individual right of law-abiding Americans to keep and bear arms, and 2) the fact that this right exists so Americans can defend their other rights, including their rights to life and property, against, among others, terrorists.
Foreign nationals who are known or reasonably suspected to be terrorists have no moral right to carry or purchase guns in the United States. The GAO testimony indicating that 650 separate individuals on the terrorist watch list had gone through firearms or explosives NICS background checks over a six-year period did not indicate how many of these were foreign nationals and how many were U.S. citizens. I asked GAO if they could provide me with this information, but they were unable to do so by my deadline. [Update as of Wednesday, Sept. 1, 2010, 10:40 a.m.: The GAO informed me that it in preparing its testimony it did not get the data from the FBI on how many of the 650 people on the terrorist watch list who went through firearms and explosives NICS background checks were foreign nationals and how many were U.S. citizens.]
It is a fair assumption, however, that many of these prospective gun purchasers were not American citizens.
When Timothy Healy, director of the FBI’s Terrorist Screening Center, which runs the terrorist watch list, testified in the Senate Homeland Security Committee last December, he indicated that the overall list (the Terrorist Screening Database) then contained about 400,000 people, of whom less than 1 percent was on the no-fly list. Only about 5 percent of that 1 percent were “U.S. persons”. “Consequently,” Healy testified, “the no-fly list is a very small subset of the terrorist watch list currently containing approximately 3,400 people, of those approximately 170 are U.S. persons.”
Surely, the foreign nationals on the terror watch list, not to mention those on the no-fly list, can be instantly denied any opportunity to buy a gun in the United States without violating either the letter or spirit of the Second Amendment.