24 April 2013

A Question Of Regulatory Priorities When It Comes To Terrorism

The question of what sort of laws and policies are necessary to prevent terrorism, or at least to make it harder to carry out terrorist acts can be a difficult one that requires careful balancing of the public interest in security against personal civil liberties. 

For example, questions regarding whether there should be some legal authority for preventative detention of suspected terrorists without the probable cause necessary for a criminal arrest, and involving the targeting of U.S. citizens and their companions who may be innocent to be killed with armed drones, can be hard ones.

But, as the examples below illustrate, many aspects of the existing set of laws and policies on these subjects defy common sense.  Seemingly very serious threats are regulated quite lightly, while other aspects of American life that pose far lesser threats to public health and safety are sometimes regulated much more strictly.

Mortars Are Easier To Buy Than Sudafed, Oral Contraceptives Or A Gun

In the United States, you can buy a mortar and mortar rounds over the counter (although not the full strength version, although it contains some gunpowder and easily modified to replace firework colors with more gunpowder), over the counter, for $100 with nothing more than a merchant's voluntary decision to take a copy of your ID.  No license, no permit, no background check, no entry in a centalized database is required.
One of the suspected Boston Marathon bombers purchased two large reloadable mortar kits from a fireworks store in New Hampshire, an executive with the pyrotechnics company said Tuesday.
Tamerlan Tsarnaev paid $199 cash for two “lock and load” kits, each of which contained four tubes and 24 shells, said William Weimer, vice president of Phantom Fireworks. Such kits cannot be legally sold in some states, including Massachusetts and California.
It takes a background check to buy a gun from a retail vendor and certain groups of people are not legally allowed to buy them.  You are required by law to show ID and be entered in a centralized database to buy Sudafed (an allegery medication that can be used as an ingredient to make methamphetamines).  You need an actual doctor's prescription to buy oral contraceptives that have fewer health risks than asprin.  But, none of that is required to buy your own artillery set, or the gunpowder needed to charge these rounds to full military strength.

Of course, there are some people in the United States who have been banned from possessing and using small mortars for a while as recently as a month ago.  Those would be U.S. Marines.

People On Terrorism Watch Lists Can Legally Buy Guns And Routinely Do

The United States also has a national terrorism watch list that is routinely used to prevent people from getting onto commercial airplanes even after their possessions are carefully searched by TSA officials.  But, people on the national terrorism watch list are still free to buy firearms even when the background check done for someone purchasing a gun from a retail vendor shows that they are on it.  On average, five people on the national terrorism watch list buy a gun each week.
Under current laws, if a background check reveals that your name is on the national terrorism watch list, you're still free to walk out of a gun dealership with a firearm in your hands — as long as you don't have a criminal or mental health record.
Data from the Government Accountability Office show that between 2004 and 2010, people on terrorism watch lists tried to buy guns and explosives more than 1,400 times. They succeeded in more than 90 percent of those cases, or 1,321 times.
I recognize that the national terrorism watch list has flaws.  The grounds for putting someone on it are very flimsy, and the process for finding out that you are on it or getting yourself removed from it are flawed.  This tool needs to be fixed.  But, the notion that it should be easier to buy a gun than to get onto a airline after TSA inspection of your baggage is pretty problematic. 

While Michael James Barton, a former counterterrorism official during the Bush Administration quoted in the linked story argues that the constitution protects gun purchases but not travel, there actually is a well recognized express protection of the right to engaged in interstate travel without undue interference.

While one justification for allowing people on a national terrorism watch list to buy guns is that this avoids tipping them off while allowing the federal government could follow up on gun purchases by people on a national terrorism watch list, there is no indications that it actually does so, or even that it has sufficient resources to do so.

It is also widely acknowledge that there a huge holes in the background check requirement to purchase guns in many states making it easy in practice for felons and people with restraining orders against them to actually buy guns in practice, that many people barred from buying guns are not routinely stripped of the guns already in their possession when a background check trigger kicks in, and that the background check database is woefully incomplete, particularly with regard to keeping track of people who have been committed for mental health issues - something that pending legislation in Congress with widespread support, even from gun rights groups, may change.

Knives On Planes Almost O.K.'d, Shampoo And Toothpaste, Not So Much

Then again, until yesterday, the TSA was planning to permit passengers to carry knives on commercial flights (of the same size as the box cutters used in the 9-11 attacks) (as well as "ski poles, lacrosse sticks, billiard cues and up to two golf clubs").  

It still has no plans, however, to discontinue its ban on carrying regular sized shampoo and toothpaste tubes or bottled water in carry on luggage, or its requirement that all abled bodied adults have their shoes X-rayed before flying unless they have a pre-approved safety clearance.

Ordinary People In The U.S. Are Allowed To Own Tanks With Operational Weapons

There are several hundred to 1000 private tank owners in the United States according to the Wall Street Journal.  The tank can even have live weapons if the owner obtains the functional equivalent of a concealed weapon permit (although obviously, tanks are not themselves concealled weapons).
A tank in the U.S. can have operational guns, if the owner has a federal Destructive Device permit, and state laws don't prohibit it. The permit costs $200, and the applicant must swear he hasn't been a "fugitive from justice," "adjudicated mentally defective" or convicted of "a misdemeanor crime of domestic violence." A local law-enforcement official, usually a sheriff or police chief, has to sign off on the application.
Tanks generally aren't street-legal, so owners usually drive them off-road or on other private property. Some say local authorities sometimes make exceptions for parades, a quick test drive or a trip to the gas station.
There Are 488,065 Privately Owned Legal Machine Guns In The United States

Incidentally, while private ownership of fully automatic weapons (i.e. machine guns) is highly regulated, it is possible for a private citizen in the United States to get a permit to own and possess one, and there are quite a few such permits are outstanding (488,065 as of 2012 up from about 240,000 in 1995).
There were 30,220 registered machine guns in Virginia as of March, according to figures compiled by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.
That's more than any other state in the nation.

Florida and California, with far larger populations than Virginia, ranked second and third in the number of registered machine guns, with 29,128 and 28,774, respectively.

Nationally, there are nearly 500,000 registered machine guns, according to an annual report compiled by the ATF. . .
Private citizens who want to legally own a machine gun face a lengthy approval process. Meeting the standard requirements for gun ownership — including no felony record, no psychiatric commitments and no domestic assault convictions — is just the beginning.
After passing a background check, applicants must submit their photograph and fingerprints to be used in a registry maintained by the ATF. Also required is a signed statement from the chief law enforcement officer in the locality where the applicant lives, stating there is no indication the machine gun would be used illegally.
Like tank ownership, the requirements that must be met to legally own a machine gun are similar to those for a concealled weapon permit in many states (although in Colorado and a many other states, a concealled weapons permit is easily available after a brief training course to almost anyone who can legally buy one).

There is no indication that the officials who have to sign off on permits to own tanks with operational firearms or machine guns have access to information regarding whether or not the applicant is on the national terrorism watch list which they can then use as a cue to investigate for themselves.

Also, keep in mind that once a permit is issued in one local jurisdiction where a local sheriff may be lenient in granting permits to obtain a firearm, nothing prevents the machine gun owner (at least for all practical purposes) from taking the machine guns to a new jurisdiction and using them there.  This is a list common denominator system of regulation.

It is worth noting, however, that many privately owned machine gun owners have multiple machine guns, so the number of privately owned machine gun owners is significantly smaller than the number of private owners of machine guns.  But, with that many machine guns in circulation, the risk that one could fall into the wrong hands, for example, via burglary or a relative who gains access to a legal owner's gun safe, is real.

The Second Amendment Is Unique In The World And Only Recently Enforceable In The U.S.

The United States is the only country in the world with constitutional protections for the right to bear arms.  Several Latin American countries that once copied the U.S. and had similar protections have repealed those protections in the last half-century.  It has been more than a century since a new constitutional protection for the right to bear arms was adopted by a country. 

Moreover, while the Second Amendment was adopted in 1791 as part of the Bill of Rights, the first time that a court determined that it created an enforceable individual right against the federal government (at least in the case of ownership of handguns for self-defense) did not come until 2008 in the case District of Columbia v. Heller, 554 U.S. 570 (2008).  The question of whether that right was enforceable against state and local governments, as well as the federal government, was not resolved until the case of McDonald v. Chicago (2010).  Before 2008, the not fully resolved but majority view was that the Second Amendment was a collective right that prohibited the federal government from banning state militias, rather than an individual right to bear arms for personal self-defense.  McDonald v. Chicago made clear that the Second Amendment was not primarily just a federalism protection.

Even those cases and precedents decided since 2008 have upheld many gun control laws, including all current nationally applicable gun control laws, as reasonable regulations of the right to bear arms.  The laws struck down have overwhelmingly been nearly complete bans on handgun ownership enacted by big city municipal governments like the one struck down in the original Heller case in Washington D.C.

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