Months before he loaded his SUV with propane tanks and fireworks and drove to Times Square, police say, Faisal Shahzad went to a firearms store and bought a rifle. It was found in his other car at Kennedy Airport, where his name showed up on the no-fly list in time to keep him from escaping.
Sen. Frank Lautenberg, D-N.J., is one of many people wondering why a suspected terrorist can be barred from flying but not from purchasing a gun. It "defies common sense," he says, that "the rights of terrorists are placed above the safety of everyday Americans."
Well, not exactly. Anyone convicted of terrorism has no right to buy a gun, since felons are barred under federal law. And Lautenberg neglects to mention that in denying constitutional rights to people merely suspected of dangerous connections, he would deny rights to lots of peaceable "everyday Americans."
His bill, the subject of a recent Senate hearing, gives the attorney general the power to block gun sales to anyone the government suspects of being a terrorist. Never mind the obstacle known as the Second Amendment, which according to the Supreme Court protects an individual right to own guns for personal use.
Someone arrested, tried and found guilty of a crime loses that particular freedom. But Lautenberg's bill would strip the right from many people without forcing the government to show they've done anything wrong.
It's not entirely clear what it takes to be tagged in the government's terrorist watch list, which includes more than a million names and has been plagued with errors. "How you get on is a mystery, and how you get off is extremely difficult," says Mike German, a former FBI agent now with the American Civil Liberties Union.A 2009 evaluation by the Justice Department's inspector general found that many nominations "were processed with little or no information explaining why the subject may have a nexus to terrorism." The FBI also "did not consistently update or remove watch list records when appropriate."
If you get put on the list by mistake, you may find yourself permanently exiled to the Twilight Zone. The program under which innocent Americans may challenge their designation "does not always provide meaningful solutions," according to the inspector general of the Department of Homeland Security.
Supporters of the bill lament that, according to a report by the Government Accountability Office, people on the watch list have tried to buy firearms more than 1,200 times, with 91 percent of the sales going through.
That could mean al-Qaida has a good-sized secret domestic arsenal by now. Or it could mean that a lot of people thought to be a mortal threat were about as bloodthirsty as Jill Biden.
The more interesting question is whether any of the purchases led to terrorist violence. If supporters of the bill had examples to flog, you can be sure they would. In any event, the FBI keeps track of anyone on the list who buys a gun and sometimes steps up surveillance in response.
The proposed law wouldn't have impeded Shahzad because he didn't make the list until after he bought the rifle. Nidal Hasan, the alleged Fort Hood shooter, failed to get a nomination.
Barring gun sales on the basis of mere suspicion might be permissible except for that pesky Second Amendment. The Constitution doesn't specifically enshrine the right to ride in a commercial airliner or even the right to travel. The right to own a gun, by contrast, is right there in black and white.
Not only that, but someone blocked from boarding a plane can always travel by train, bus, boat or car, says UCLA law professor Eugene Volokh, which is one reason courts have upheld restrictions on flying. "But this completely prohibits you from even possessing a gun," he notes, once you've gotten notice that you are forbidden to buy one.
All this would happen without the normal requirements of due process, which makes it unconstitutional as well as unwise. Note to the federal government: You are entitled to deny firearms to anyone engaged in efforts to commit acts of terrorism -- just as soon as you can prove it.