The Supreme Court’s invalidation of Chicago’s handgun ban in McDonald v. City of Chicago will prove a landmark victory for gun rights. The Second Amendment, considered a dead letter for much of the twentieth century, now applies to the states as well as the federal government.
Some have yet to come to grips with what the decision will mean for the scope of permissible gun laws and regulation. New York City Mayor Michael Bloomberg responded that the decision makes it clear that:
We can work to keep guns out of the hands of criminals and terrorists while at the same time respecting the constitutional rights of law‐abiding citizens.
The mention of “terrorists” above is a reference to proposed legislation, sponsored by Sen. Chuck Schumer and Rep. Peter King, to bar anyone on the FBI’s terrorist watch list from purchasing a firearm. Bloomberg supports this legislation, calling the ability of persons on the watch list to purchase firearms the “terror gap.”
Bloomberg’s proposal is to treat those placed on the watch list as if they had already been convicted of a crime. He supports this with the claim that people on the watch list have tried to purchase firearms more than 1,200 times, and 91 percent of those sales were approved by the national instant background check system.
There is plenty of reason to believe that there are a lot of names on the list that don’t belong there. The Justice Department’s internal review found that many placed on the list “were processed with little or no information explaining why the subject may have a nexus to terrorism.” This same watch list is routinely lampooned in the press for having swept up toddlers among those the government wants to treat as a danger to society. Yet the government makes it extremely difficult to get mistaken names off the list.
If this legislation passes, it sets the stage for the government to preemptively bar someone from exercising any constitutional right because they are on a double‐secret probation list. This is an on/off switch for the Bill of Rights.
That’s not how liberty works.
You enjoy a right to be free from governmental intrusion unless and until you have shown yourself incapable of exercising that right responsibly. That determination can only be made in a court of law.
Plenty of people are already prohibited from purchasing or even possessing firearms under this constitutional standard. Convicted felons are a good example. They have committed a crime serious enough to warrant a restriction on their ability to exercise certain liberties. A prosecutor brought charges, a jury convicted, and a judge sentenced.
The proponents of Bloomberg’s legislation claim that the right to keep and bear arms under the Second Amendment is different than other liberties. It involves guns, and guns are dangerous.
Liberty is dangerous, too.
No freedom worth having comes risk‐free. Guarantees of liberty, such as those in the Bill of Rights, must apply even in the face of foreseeable hazards.
Take the Fourth Amendment, which requires law enforcement officers to obtain a warrant before searching your home, subject to reasonable exceptions such as when they are in hot pursuit of a fleeing suspect. To enforce this, any evidence seized in violation of the warrant requirement does not get used against you in court.
This protection applies to everyone, criminals included. Is there an argument that police officers should be able to search a house whenever they have a hunch that it will produce evidence? Yes, but we have decided as a society that requiring authorities to obtain a warrant before gaining access to your home is a necessary safeguard against arbitrary and intrusive government.
The Fourth Amendment protects liberty by placing limits on government, and as a result, there is a risk that some criminals may escape capture, prosecution, and incarceration. But our society is better off as a whole when the government must get approval from a judge to intrude in any citizen’s home.
To suggest that someone should be prevented from exercising an express constitutional liberty by virtue of having their name on a government watch list makes the exercise of all our liberties subject to arbitrary judgments by the government. Bloomberg’s proposal to close the “terror gap” sets the precedent for closing the “freedom gap.”
Or, as the Founding Fathers called it, the Bill of Rights.