December 13, 2021
By David Codrea
“Between the No-Fly List and the NICS List, there are two secret lists the government uses to strip American citizens of their constitutional rights,” Rep. Paul Gosar (R-AZ) tweeted. “But they do so in secret. With no charges. No hearing. No due process. It is a remnant from Soviet Russia, and it needs to end.”
He was referring to an October 28 letter that he wrote to Attorney General Merrick Garland about reports the government was denying guns to citizens who don’t fit into any of the 10 classes of legally enacted “prohibited persons” categories, including convictions for crimes punishable by imprisonment for a term exceeding one year, fugitives from justice, and the like. His concern was that people not so prohibited by law were still being denied their rights, including through “false positives.”
“The background check system confuses the names of law-abiding individuals with those of criminals, resulting in thousands of ‘false positives’ every year,” author and Crime Prevention Research Center President John Lott argues. Rather than refute that it happens or demand that it stops, the antis came out in furious force to smear and try to discredit Lott.
He’s an easier target for them than Congressional Research Service, which operates out of the Library of Congress to provide public policy analyses for our representatives and senators to consult when crafting legislation. In a 2019 analysis of denials, denials appealed but sustained and denials overturned over a 20-year period, CRS found “The majority of these overturned denials were due to misidentifications.”
An often-used anecdote to illustrate the dangers such systems pose to innocent people is the story of the late Sen. Ted Kennedy being prevented from boarding an airliner. Those who would deny the ultimate effect parse words on the cause, saying Kennedy was not on the No-Fly List, he was merely “‘misidentified’ as someone on the ‘selectee list.’ Those on the selectee list ‘must undergo additional security screening before being permitted to board.’”
“Kennedy ultimately boarded his flights and didn’t miss any flights,” the apologists at FactCheck.org assure us. See? No harm, no foul!
We don’t know what effect Kennedy being a powerful senator with the head of TSA’s boss on speed dial might have had on expediting a happy resolution and if an “average citizen” would have fared as well, or at least avoided a backroom sigmoidoscope examination. In any case, no such on-the-spot “additional screening” exists to let a transaction proceed in cases where gun owners are improperly denied by the National Instant Criminal Background Check System, and that’s a point Gosar made to Garland.
“If an individual initiates [a challenge] by requesting, in writing, the reason for the denial from the agency that conducted the NICS check ... federal law requires the denying agency to respond to the request within five business days,” Gosar noted. “If the record is found to be inaccurate, the denying agency is legally obligated to correct that record [underscoring in original].”
So unelected bureaucrats have assigned to themselves the power to deny fundamental rights supposedly guaranteed in the Bill of Rights and it’s on the innocent would-be gun owner caught up in their screwup to prove his innocence -- and hope he won’t need to take out a second mortgage to cover lawyer fees if the government gets it wrong again. Meanwhile, as Martin Luther King once observed, a right delayed is a right denied. And for the hapless citizen who lacks the wherewithal to fight it, the phrase “Sucks to be you” comes to mind.
If citizens denied the means for self-protection are robbed, hurt or worse in the meantime, especially by a perp s a gun, the antis will just use that as another opportunity to tell everyone how “gun violence” requires yet more “commonsense safety laws.”
The thing about Gosar writing to Garland is he was reacting to something that happened recently to Republican activist (pejoratively described as “far right” by leftist media) and former congressional candidate Laura Loomer, who had her Florida Concealed Carry permit denied, “despite the fact that she had a gun at the time she was in the NICS database.”
“Even after being denied, Loomer had to make several more inquiries as to why she was denied,” Gosar explained. “If she had not contested her application denial, Loomer could have still legally had a gun in Florida without carrying, and she never would have known that the FBI had banned her from being able to own a firearm. This begs the question, was the FBI trying to entrap Ms. Loomer, and how many other American citizens who are also in the FBI NICS database have not been notified that they have also been banned from owning and possessing firearms?”
“Innocent individuals on the secretive NICS list have been dangerously disarmed,” Gosar charged. “Of particular concern is the secretive Federally Denied Persons File. To the extent your Department is keeping secret and unconstitutional lists, it should create a clear route of recourse for innocent citizens unfairly and unlawfully listed without due process.”
Good luck getting people who are against an armed citizenry to go along with that.
For her part, Loomer claims she has no disqualifiers on her record and has been targeted because of her political beliefs. When she finally finds out, we’ll know for sure: Either there is a secret list, the lawfulness of which is not defined, or those “false positives” the left ridicules are something the government has no intention of fixing on its own, and there’s no real momentum to demand it.
In any case, the desire to apply “No-Fly List” tactics to gun purchases has been a big wish list item for the antis for years. A “noteworthy” recent attempt was billed as “bipartisan,” with “Republican” sponsor Senator Susan Collins of Maine joining with Jeff Flake, Lindsey Graham and Pat Toomey on the “Terrorist Firearms Prevention Act.”
The bill never received a vote, per the GovTrack.us legislative website, which nonetheless noted “its provisions could have become law by being included in another bill. It is common for legislative text to be introduced concurrently in multiple bills (called companion bills), re-introduced in subsequent sessions of Congress in new bills, or added to larger bills (sometimes called omnibus bills).
That the effort keeps coming up is evidenced by its try,try again past. Having been thwarted in 2005, former New York Rep. Carolyn McCarty reintroduced the “No Fly, No Buy Act of 2009,” with the stated objective “To increase public safety and reduce the threat to domestic security by including persons who may be prevented from boarding an aircraft in the National Instant Criminal Background Check System, and for other purposes.”
“Right now, people on the No-Fly list can walk into a store and buy a gun.,” Barack Obama weighed in. “That is insane. If you’re too dangerous to board a plane, you’re too dangerous, by definition, to buy a gun… And so I’m calling on Congress to close this loophole, now.”
What’s insane is the only danger didn’t just come from being denied a gun.
“Under the New McCarthyism, a prosecutor could send a gun-owner to federal prison without needing to show the person had ever committed a crime, or had taken any steps preparatory to committing a crime, but merely that the person’s name was on a list compiled by a federal agent and the person had owned, used, or tried to buy a gun,” author and attorney David Kopel warned. “By federal law, anyone on the prohibited persons list for guns is barred not only from buying a gun, but even from holding a gun for a moment. A name can also be placed on the no-fly list based solely on information supplied by a foreign government — information which may often be reliable, but sometimes may not be.”
If being on that list is going to prevent you (but not criminals or real terrorists) from buying firearms, who thinks the next step won‘t be to confiscate the guns you already own? (That’s where registration lists, which the National Institute of Justice acknowledges are necessary for “universal background checks” to “work,” can come in so handy, especially when supplemented with so-called “red flag laws.”) And if you are one of those real terrorists and are dumb enough to fill out a Form 4473 and submit yourself to a NICS approval, what better way to be tipped off that you’ve been “made” than to be helpfully told the feds won’t allow your firearm transfer to proceed?
And then there are the arbitrary disqualifiers. I remember years back how one guy found himself on a list for the heinous crime of taking a giant, inflatable pink pig to political rallies to protest government waste! And the pressure is on to expand the disqualifiers even beyond the animal-shaped balloon owner menace. We have the FBI and the Joint Terrorism Task Force to help further expand the dragnet by circulating flyers asking gun dealers and ranges to be on the lookout for such deadly threat giveaways as shaving beards, paying in cash, or traveling an “illogical” distance to a gun-related event. Seriously, for those of you who don’t remember it, I’m not making this up (check out https://www.scribd.com/document/425144485/FBI-Notice-00 for yourself).
Now recall that not too long ago, the San Francisco Board of Supervisors declared the NRA a terrorist organization. Then note a 2019 Rasmussen Poll, that found: “[N]early one-out-of-three Likely Democratic Voters (32%) favor declaring the gun rights group a terrorist organization in the community where they live. Fourteen percent (14%) of Republicans and 20% of voters not affiliated with either major party agree. Twenty-eight percent (28%) of Democrats say Americans should be prohibited by law from belonging to pro-gun rights organizations like the NRA, a view shared by 15% of Republicans and 10% of unaffiliateds.”
What must they think of Gun Owners of America?
And, of course, the media cheerleaders for disarmament have always been happy to stir the pot. Remember the words of columnist and cartoonist Ted Rall who said of open carry demonstrators: “These town hall terrorists could be declared enemy combatants and bundled off to Bagram with the stroke of a pen. If ever there were a reason for suspending civil rights, this is it.”
“God. The smirks those jerks wear!” Rall ranted. “Run a Google Image search on ‘Klansmen’ or ‘lynching.’ Same ones.”
Bring it all to the present and the narrative is still being fueled, this time by FBI Director Christopher Wray and Attorney General Merrick Garland, both of whom aggresively use the same “domestic terrorist/white supremacist” rhetoric “perfected” by the Southern Poverty Law Center to smear Americans who believe in the whole Bill of Rights.
Using lies and political prejudice to deny rights without due process is un-American and tyrannical. Or as the Queen of Hearts declared in Lewis Carroll’s purposefully absurdist classic, Alice’s Adventures in Wonderland, “Sentence first — verdict afterwards.” There was a time when even children understood that to be monstrous and evil.
About David Codrea
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.