Why are gun restrictions based on terror watch list and mental health so controversial in the US?

  • The latest (but not recent) episode I remember is this vote from June 2016, when the US senate rejected restrictions on sale of weapons to people on the terror watch list.

    These are people that the same government deems too dangerous to allow on planes, but apparently preventing them from acquiring weapons is "against freedom"? (or something along those lines?)

    On a similar line, I remember that also legislation to prevent people with mental health issues to acquire guns was stopped.

    Why is this? What in the US political culture makes it so difficult to approve this kind of legislation? Is it all based on the slippery slope "if they take them away from them, then they will take them away from me"?


    Note: I am not interested in answers that only say "the republicans" here or "the democrats" there, both parties have stopped similar legislation:

    But the Democratic-controlled Senate voted against legislation pushed by the president that would have expanded background checks for firearm purchases to gun shows and online sales.

    The general question was already asked. So only the more specific issues should be covered here.

    I would challenge the notion that mental health disqualification is in principle controversial in the U.S. In fact, the NRA itself has endorsed such legislation at times. The fact that the administration used an executive order to impair mental health regulation of guns is not because any significant share of the population felt that this was problematic. It is a symbolic move to be pro gun rights even though the matter struck down was uncontroversial and merely carries out a law that has been on the books under-enforced for decades.

    Keep in mind that the no-fly list is a list of people who the government *doesn't actually have any evidence on with which to charge them with a crime.*

    Also worth noting that the fabled "no-fly list" is literally *just a list of names* with no other identifying information. This is why you hear stories about babies being detained or people legally changing their name to get off the list. Restricting people on these lists from buying guns would restrict a lot of otherwise innocent people with the same name as well.

    To amplify other answers regarding the Second Amendment, I recommend the article, In Defense of the Second Amendment, by Dr Gary North. It tracks the correlation in history of freedom to the availability to the general public of effective weaponry.

    Regarding the mental-health rule mentioned, one can find letters of support for its congressional overruling from various groups here: https://waysandmeans.house.gov/hj-res40/. The ACLU's letter, e.g., states "We oppose this rule because it advances and reinforces the harmful stereotype that people with mental disabilities, a vast and diverse group of citizens, are violent"; the Bazelon Center for Mental Health Law argues there that the SSA had no statutory authority to issue the rule; etc. Useful reading material if one is looking to understand why that particular rule was controversial.

    There are those of us who believe that if guns were allowed to be taken away due to one being placed on a watch list, those who want to take away guns would simply place any and everyone they could on such watch lists. Currently, all (or most) US citizens have their emails read by the NSA and their phones tapped. It isn't out of the imagination to think that many or most gun owners could simply be placed on watch lists.

    This question is three different questions: edit #2 has morphed this question from "a) even minimal gun laws" to "restrictions based on b) terror watch list and c) mental health". c) is very different to b). Further, this question is about **federal gun laws**, since several states independently maintain their own lists of mentally ill people prevented from buying guns.

  • Americans hold that they have a right to bear arms. This is codified in the Second Amendment to the Constitution (the first ten amendments are called the "Bill of Rights")

    A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

    In general, the government is not allowed to restrict the rights of a particular person without due process of law. There is no due process of law involved in being put on a watch list, and there is no due process to check whether you are on one and to appeal your placement. (As of this answer, the only time the no fly list has actually been challenged in court it was found unconstitutional, so lawmakers may also want to overhaul the process itself before expanding its use, or get rid of it completely)

    In comparison, it is generally accepted in America that a person convicted of a felony loses their right to own guns even after they have served their sentence. This is because, contrary to being put on a watch list, they were convicted of a crime in an open court, after being afforded their various rights around due process of law.

    To answer the question about the slippery slope, there is a camp of people whose primary motivation for upholding due process is that the people can use them to resist an authoritarian government. However, the more general argument is simply that the government has no business taking away arms without due process of law. The people have a right to have them, so the government does not have the power to arbitrarily take them away.

    Regarding the watch list: US Senator Ted Kennedy was at one time added to a no fly list. I'm sure he was able to get it corrected quickly, but most citizens don't have the same resources and access to government that he had.

    @Leatherwing http://www.factcheck.org/2015/12/ted-kennedy-and-the-no-fly-list-myth/ differs with you on the Ted Kennedy thing..,

    He was not on the terrorist no fly list. But he was prevented or delayed from doing something that he had every right o do because his name was similar to someone who was on a list. It demonstrates the lack of due process available to those added to these type of secret lists. They are not a valid way to determine whether a persons rights should be impacted.

    Your comment about their objection to a lack of due process is spot on. People are blocked from flying all the time even though they aren't terrorists. "Mentally ill" is a vague term that could apply to large swaths of the population that pose no danger while in possession of a firearm. I doubt anyone objects to keeping guns away from terrorists and crazed maniacs; they are just worried they'll be labeled one of those things mistakenly and with no recourse.

    @Leatherwing to be fair, *no one* wants to sit next to Ted Kennedy on a plane.

    FYI due process is also an explicit constitutional right, in the 5th and 14th amendments.

    @blip : Especially now that he's been dead for over seven years

    There's another reason you don't really discuss in your last paragraph: the right to defend one's self from crime. I don't have any sources handy, but my recollection is that some US courts have ruled that the government doesn't have any actual *responsibility* to protect you from harm. (Someone sued the government because the police failed to respond quickly enough or something along those lines, if I recall correctly.) The ruling was reasonable, but the implications are worth considering.

    Excellent answer. This is exactly the reason. Even the rather-far-left and normally anti-gun ACLU is opposed to the legislation that was proposed regarding mental health patients for exactly this reason - the legislation lacked due process. The cynic in me suspects that the legislation was proposed knowing that it would be shot down for that reason exactly so that certain politicians could have a talking point of "My opponent voted to allow terrorists and mental health patients to have guns!" with no context of why the bill was actually shot down. Sadly, both parties engage in such nonsense.

    This answer seems factually correct to me; but one question remains open -- why on earth (yes, we Europeans tend to roll our eyes discussing some of the idiosyncrasies of American culture and politics) --, so, **why on earth** is it apparently impossible to **friggin' implement** a due process?? There is due process for obtaining a drivers or pilot license or a crane operating license; all occupations which are deemed dangerous enough to the general public to require proper eyesight and qualification. Why not one for operating a gun?? It seems such a no-brainer.

    @PeterA.Schneider From what I know Americans fear that the government might some day make obtaining the gun license incredibly hard and expensive to ban guns in practice while not openly banning them by law.

    @PeterA.Schneider Many Americans, and the politicians they elect, pass law under the assumption that the government will abuse it any way they can, which makes any law that can restrict a recognized right hard to pass. There is also varying gun control in individual states, since gun control is seen by some as a state issue rather than a federal one.

    @PeterA.Schneider Also, as I mentioned in my answer, there is due process to restrict the right if someone is convicted of a felony, and also if they are found to be a danger to themselves or others by a court (due to e.g. mental illness). Due process for something like the terrorism watch list would look like the court sending a notice one day that you are suspected of terrorism and have to stand trial for a crime you haven't committed in order to see whether or not you can exercise one of your rights as a citizen. I think you can see why some might find the whole idea unappealing.

    @IllusiveBrian You state the obvious: Due process guarantees that an individual's rights are not inappropriately (i.e., illegally) curtailed. But obviously certain rights are denied for people on that list -- including the right to live, and some minor ones, like free commerce and movement and privacy (no commercial flights, surveillance). Re "law that can restrict a recognized right hard to pass": Apparently it wasn't that hard for the Patriot Act. I understand -- people were afraid in 2001 and wanted to be secure. But that would be applicable to weapons as well. 10k die each year from guns.

    @PeterA.Schneider I mentioned in my answer that the no-fly list was found unconstitutional the one time it has ever been challenged, it just affects so few people that it's difficult to get a good combination of someone with standing and someone who actually wants to go through the hassle of pursuing the case. I'm not sure what you mean by "right to live" though. If you want to have a question about why US voters don't overwhelmingly support gun control in general, feel free to ask another question.

    @PeterA.Schneider Ah, I thought you were still referring to the no fly list. The targeted killing list had never been used against an American citizen until al-Awlaki, so its respect for due process has never been officially challenged. It also crosses over into the stickier field of "imminent threats," whereas there has never been a claim that someone has to be an "imminent threat" to be put on the no fly list or terrorism watch list. Please don't take this to mean I think extrajudicial killings are good and just, I'm just pointing out that there is a difference between them and gun control.

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Content dated before 7/24/2021 11:53 AM