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

Question

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"?

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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.

Answer 1

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.

Answer 2

Other answers addressed watchlist, but not "mental health" initiative.

Basically, because "mental health" is entirely too subjective, politicised, and also fails due process.

Examples:

• Up until 1987, homosexuality was considered a mental health disorder under DSM (Diagnostic and Statistical Manual of Mental Disorders, the gold standard in USA).

• To make up for it, now there are proposals to consider being politically conservative to be mental health disorder: Psychology Today article: "Is Political Conservatism a Mild Form of Insanity?"; Psychology Today blog: "Conservatism as a Mental Illness". Both are from eminent mental health "professionals".

• Additional things in DSM that could qualify as "mental illness": Autism Spectrum Disorder (scratch off any aspies, if one were to inclined to maliciously abuse the mental health provision of gun control).

• ADHD

Now, based on above views, you can see why conservatives would not be on board with US government using "mental health" as a criteria on whom to deny guns - and based on #1, any fair-minded rational liberal should be as well.

Answer 3

I've listed 2 reasons in my answer which are probable reasons but may not be the only reasons.

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Firstly, gun rights are protected under the United States Constitution. The Second Amendment to the United States Constitution states that:

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.

So, some have argued that it violates the constitution to take away guns from people.

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Secondly, it's also partly due to the lobbying powers of the NRA, as described in this article by Romper.

Given everything that's happened of late, the Senate rejecting gun safety legislation appears to make so sense whatsoever — unless, of course, we consider the continuing and maddening congressional deadlock, the sinful lobbying powers of the National Rifle Association (NRA), and the deeply-felt belief among many in the American public that more guns — not fewer guns — will keep us all safe.

According to numbers crunched by the Center for Public Integrity, the NRA has been behind $46 million in campaign expenditures since Citizens United upended campaign finance laws in 2010.

In a 2013 interview with Mother Jones, gun policy expert Lee Drutman said that congresspeople are well-aware of the NRA's influence in their own states or districts. "They know what the NRA is capable of doing and the kinds of ads they're capable of running," he said.

This fear of an NRA backlash might, at least in part, explain why Republican senators continue to vote against gun control legislation that's popular with their own conservative constituents.

(emphasis mine)

This article by The Washington Post also explains it in its headline:

Senate will vote down new gun laws today because of an intensity gap that favors the NRA

And also in the article:

But, but, but: The Post’s in-house pollster, Scott Clement, flags a 2013 Pew Research Study, which found that people who prioritize gun rights over gun control are four or five times more likely to contribute money to advocacy groups, contact public officials, sign petitions and express their views on social media.

Thus, Congress is reluctant to act on the gun control laws and prefer to maintain the status quo.

Answer 4

Basing gun ownership rights on the watch list is controversial because the watch list is often incorrect.

Basing gun ownership rights on mental health state is controversial because mental illness is still a stigma in our society and as most are illnesses are on a spectrum, often subjective as to severity. It could also encourage people to purposefully avoiding seeking treatment for their mental illness.

Answer 5

The other answers correctly point out the crux of the issue:

• people acting to preserve a right^[1] provided by the constitution
• a right provided by the constitution cannot be taken away without due process

Specifically to the example you provide: there is no due process in the maintenance of a terror watch list.^[2] (and I'm OK with that, read entire answer)

You:

• could be on a terror watch list right now, and not know it
• would not know who decided you are on the watch list
• could know of no reason for being on the list
• wouldn't know how to get off the list

Said by one:

The constitution gives you a right. A well-meaning but tired civil service employee eating soggy sandwiches out of a vending machine at 2 AM in the basement of a federal building cannot take your constitutional right away.^[2]

The watch list process is a black box. I'm OK with that

Why are gun control measures so controversial?

Some see a simple common sense gun control measure.

But others see something else. Many believe that tyrannical government government sneaks up on you; chipping away at your rights and liberties bit by bit until one day your rights are gone. So one person's seemingly innocuous gun control measure is another person's beginning of a unstoppable slide into tyranny.

Or others simply see bad law. Sometimes bad ideas become law. Then a future court upholds the bad law. There is a track record of this happening. It's almost impossible to reverse bad law and restore rights.

In this atmosphere, each side views the other as foolish unreasonable fanatics.

(substitute policy or regulation for law as you read, they are nearly the same in impact)

About those watch lists; no fly lists

They are just and good for those purposes [my opinion, pending references]. People don't have a constitutional right to fly. People don't have a constitutional right to freely enter the US without screening, etc. If not a constitutional right, the standard of due process is substantially lowered.

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^{[1] rights to be defined loosely here due to differing definitions. Some comments below assert that the constitution confers no rights, only what the government cannot do.}

^{[2] due process is something like a court proceeding or formal hearing, with notices, evidence, argument, rebuttal, reasoning etc.}

Answer 6

You mention three instances:

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.

The no-fly list is not controlled at such a level that it is helpful for this. The false positive rate is much higher than the false negative rate of existing gun laws. For example, Senator Ted Kennedy was on the list for a while. Why? Someone using the alias T. Kennedy had been put on the list. So everyone whose name matched T. Kennedy was then on it.

This is manageable in travel, as there are other options. People who can't fly can still take a train, bus, ship, or car to their destination. But if extended to guns, this would cause two problems. One, gun rights can't be removed without due process, which would make it harder to put people on the no-fly list. Two, there's no easy way to know if one is on the list.

Note that you are also mixing two things. There is a no-fly list which restricts access to planes and a broader terrorism watch list that is basically, we're investigating this person -- let us know if he or she does anything suspicious. The terrorism watch list does not restrict people from flying, only the no-fly list does. This legislation would have banned people on the investigation list from buying guns.

There also are no examples of someone being on the terror watch list and buying guns that were later used in a shooting. It was a solution without a problem.

I remember that also legislation to prevent people with mental health issues to acquire guns was stopped.

I suspect that you are remembering incorrectly. Or that you are remembering a mischaracterization of the legislation. You don't provide a citation, but I'm guessing that you are talking about the Social Security disability ban. That would have banned people on Social Security disability who met certain other criteria from buying guns.

The problem with that is that the people involved do not have "mental health" issues. They have mental disability issues. They're not as a group crazy, violent, or dangerous. They're people who have their Social Security checks sent to someone else because they don't handle money well.

It is possible that the Sandy Hook shooter would have been on this list. It's unclear how this would have affected things, since he didn't buy the guns that he used. They were owned by his mother, who would not have been covered.

You also quoted

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.

This is the closest to a minimal gun law of the three examples. Currently it is possible for someone to legally buy a gun from another private individual who is a stranger to that person. The Manchin-Toomey bill is presumably the referenced legislation. It would have expanded existing regulations to include transactions between strangers.

Note that gun shows would not have received special treatment under this law and do not receive special treatment now. The vendors at gun shows are already required to run background checks same as when they are at their places of business. The "loophole" is that if two private individuals meet at a gun show, one can sell a gun to the other legally under the laws for individual sale. It is unknown if this happens frequently, since there is no federal record of such sales.

Completely online sales are illegal now. What is legal is things like Craigslist.org, where people advertise that they either have or want a gun. The actual transaction takes place in person. Again, these individual sales are not covered under existing laws. Or you can make the purchase online and then pick up the gun at licensed dealer. Again, an in-person transaction (and with dealers involved, one that already requires a background check).

This legislation foundered because gun-proponents wanted additional wording to protect buyers from being put in a federal gun registry. Gun-opponents wouldn't sign off on such language, because they thought that it would impact existing registries at the state level. The two sides couldn't reach a compromise.

It's also worth noting that it was not voted down but filibustered. While Democrats may have voted against it, some Republicans voted for it. Overall, in 2013, fifty-four for and forty-six against in the vote.

Note that the general question of why it is difficult to pass gun legislation in the United States has already been asked. That's why I'm concentrating on the specifics of this question and not talking about the more general issue. You can read more about the more general issue at the other question.

Answer 7

This proposal would be less controversial if the terror watch list and the no-fly list were well defined processes with substantive due process. But this list is incredibly opaque and boarding a plane is the only way to find out you're on it

"When I went online to check in with Southwest, they wouldn't let me. I figured it was some glitch," he explained. "Then I got to the airport and went to check in. The woman had a concerned look on her face. She brought over her supervisor and a few other people. Then they shut down the lane I was in, took me to the side, told me I was a selectee and scrawled [something] on my ticket."

Hayes finally contacted Southwest on Tuesday, ahead of another flight, to ask why he couldn't check in. A customer service supervisor told him he wasn't going to be able to get a boarding pass before arriving at the airport.

"So I asked if I was on the government's terrorist watchlist, and she said 'Yes.'"

And the substantive due process is severely lacking (emphasis mine)

The Ibrahim case marks the first and only successful challenge to the terrorist watch-listing program, which arose following the 9/11 attacks. But Ibrahim's case, as just one of hundreds of thousands of individuals who have been placed on such lists, shows the system's opacity. First, the only surefire way to even determine if one is on such a list in the US is to attempt to board a flight and be denied. Even after that happens, when a denied person inquires about his or her status, the likely response will be that the government “can neither confirm nor deny” the placement on such lists.

How did she get on the list? An FBI agent checked the wrong box

As explained in Alsup’s opinion, the whole dispute stemmed from an errant check placed on a form filled out by FBI agent Kevin Kelly. At trial, Agent Kelly admitted his mistake, and government lawyers actually conceded that Ibrahim doesn't pose a threat to national security and never has. The mistake was not a small thing, Alsup wrote.

At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list. She got there by human error within the FBI… the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit—human error, yes, but of considerable consequence.

This process is problematic in of itself. It's no wonder that people balk at it being an objective reason to remove other rights.

Answer 8

The crux of this is not the degree to which guns are or are not protected by the Bill of Rights, though that does come into play when comparing these restrictions vs being able to travel on commercial airlines, for example. We are talking about a restriction being placed upon only some citizens based upon a suspicion, a hunch, or some kind of association without overt and illegal acts.

It is the fact restrictions being placed on specific people or groups, without any sort of due process, that makes these restrictions controversial.

For instance, I, myself, think the "neccessary for a well-organized milita" portion of the Second Amendment gives the government the ability to place considerable restrictions upon private ownership. This is a view that was consistently held, for the most part, by the Supreme Court up until the Heller ruling. So, I don't necessarily have a problem with the idea of the government putting restrictions on gun ownership or how they can carry. However, I have no doubt that these kinds of laws would fail under equal protection and due process considerations as soon as they would be enacted, first at the lower federal courts, and then all the way up to SCOTUS.

For what it's worth, my opinion about the validity of the laws isn't slanted by any kind of loyalty to the idea that gun rights are absolute and sacrosanct.

Answer 9

The resistance to arms control has fundamental reasons.

Suspicion of authority is normal in a freedom loving society. Watch lists and mental health are regarded as secret, subjective, opaque, and arbitrary.

People are conscious of the many threats to personal freedom that exist in the world and would not like to risk loosing their right to use arms as a final solution should the threat materialize before them.

Answer 10

The accepted answer only really talks about (terror) watch lists.

The other (not properly addressed above, IMHO) problem is how wide on casts the "mental illness" net. There already is some US federal legislation (or at least regulations) prohibiting sale of firearms to some mentally ill, more specifically:

A person is prohibited from possessing firearms, ammunition or explosives if he or she has been found by a court to have a "mental defect" -- defined as a mental illness or incompetence -- or "has been committed to a mental institution."

The DOJ actually had a 1990 study "Identifying Persons, Other Than Felons, Ineligible to Purchase Firearms: A Feasibility Study" which confirms that the above restriction is indeed accoridng to The Gun Control Act of 1968 (18 U.S.C. 922(g)(4)). This pretty old study found that there were apporixmatly 2.7 million Americans falling under this interdiction but that only 67% of such records were adequately centralized to be checked against (p. xii).

Now the question asked here is why this is controversial; the same report gives at least some clue, namely the difficulty in enforcing this rule.

Furthermore, the same report clearly states (same page) that given US case law (United States vs. Hansel) voluntary admissions to mental health institutions do not qualify for this interdiction. I don't need to read any article to fathom that at least some see this part as controversial and will have proposed more encompassing rules... and actually some of that did become political football:

Early into his first year in the White House, Trump signed a measure that got rid of a regulation aimed at keeping guns out of the hands of people who were either receiving full disability benefits because of mental illness and couldn't work or people who were unable to manage their own Social Security benefits and needed the help of third parties. Using the Congressional Review Act, Republican majorities in the House and Senate voted to revoke the rule that former President Barack Obama issued as part of a series of efforts to curb gun violence after similar measures failed to pass through Congress. Trump signed the bill in private, without his typical public signing ceremony meant to draw attention and fanfare. He also rolled back an attempt by the Obama administration to clarify and broaden the statutory definitions of the terms that disable individuals who had been committed to mental institutions or adjudicated as mentally incompetent from buying guns. The measure, proposed by Obama in 2014, had been making its way through the rule-making process but was stymied after the election by the new Trump administration, according to federal documents shared with CNN by the advocacy group Democracy Forward.

Furthermore, the federal legislation is not end of the story; a 2007 review prefaces with substantial variation of the state-level laws in this area:

For nearly 40 years, federal law has barred certain individuals with a history of mental health treatment from purchasing, receiving, or possessing firearms. State laws are a patchwork of different regulations, some much more inclusive than the federal statute, others that parallel it closely. In some states, such laws are nonexistent. For the past 20 years, it has been possible to petition for relief from the federal prohibition; however, this is not the case with all state laws. The mechanisms for relief under state laws, when present, vary significantly, and not all require the input of a mental health professional or even of any physician.

Furthermore, the same review finds that in actual implementation, the federal checks were rather patchy, at least up to 2004, the period for which data was obtained by this study. Only about 10% of the number of adjudications estimated in the 1990 DOJ report made it to the NICS Index by 2004:

In the first 12 months during which background checks mandated by the Brady Act were performed (November 1998 to November 1999), more than 4,400,000 background checks were performed. Of these, 81,006 (1.8% of the total) resulted in denial of applications to purchase firearms. The majority of these denials (56,554, or 69.8 percent) were due to felony indictments or convictions, and a further 9.9 percent were due to misdemeanor domestic violence convictions. Only 70 individuals (0.1% of the denials) were denied because of a history of mental illness. In comparison, there were 3,072 (3.8%) denials for drug addiction.

One reason that only a small number of individuals who have a history of commitment or adjudication as mentally ill are denied purchase of firearms is that states supply mental health records to the NICS Index on a voluntary basis. No provision in the Brady Act requires states to forward mental health information to the federal government. In 2004, fewer than half the states contributed such data to the NICS Index. This low rate of participation means that it is possible for a person whose mental health treatment occurred in one state to apply for a firearms purchase in another state without having his or her history revealed as part of the background check.

Nevertheless, by the end of 2004, the NICS Index contained 221,478 active records of “mental defective/commitment.” Of these, 129,507 (59%) were supplied by states and 91,478 (41%) by the Department of Veterans Affairs. An additional 492 records were provided by the FBI. Thus, another reason for the small number of denials on grounds of mental illness may be that individuals with these backgrounds are not applying for firearms purchases in significant numbers. An FBI report summarizing the implementation of the national background check system indicates that between 1998 and 2004 approximately 4 percent of the 406,728 firearms denials were on grounds other than a criminal record (including substance abuse), including immigration or citizenship status, history of dishonorable discharge from the armed forces, and mental illness (the category was not further broken down in the report).

Answer 11

The second amendment said nothing about no-fly lists or mental health.

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.

The purpose of a militia being to fight a better organized foe than any one citizen can on their own, the second amendment is designed to allow citizens to fight the government if it means defending the 'security of a free State'. If the government could single out individuals for removal of gun rights by putting them on watchlists without any sort of due process, the entire point of the second amendment is defeated.

In some cases, people have either open warrants or some other characteristic indicating criminal activity and then they find themselves on this list

http://www.foxnews.com/travel/2015/09/09/8-ways-can-end-up-on-no-fly-list.html

Ignoring the constitution, the debate typically revolves around defending yourself. If the article above is correct, you could have constitutional rights removed for having a warrant out on you. I've known people that have had them for being too poor to pay tickets. Do you think they have the right to defend themselves?

To your point about people with mental health, do you think they have a right to protect themselves? What constitutes a mental health problem?

Answer 12

On the surface, those seem like common sense restrictions: no one on a terror watch list should be allowed to own a gun legally.

The issue becomes contentious due to the criteria used to put people on a terror watch list, or declare them to have mental health problems.

The former requires no court action, just a bureaucratic procedure, usually initiated by law enforcement agencies.

The latter is far more vague: mental health issues can take a variety of forms, many posing no danger to anyone.

It can also be argued that the concept is applied unevenly. Are people on a terror watch list or judged to have mental health issues, denied the ability to purchase or drive a vehicle? As we've seen in Europe lately, using vehicles as deadly weapons has become a fashion statement for terrorists.

Opinion, not answer: we'd be far better off refining enforcement of existing laws. Dylan Roof, the cretin who shot up the church and killed 9 people, was under indictment for drug offenses, and should not have been able to buy a gun. But, due to a very faulty information system, he wasn't flagged out when he did buy a gun. In 2017, information systems have been refined to a point where there is no excuse for that.

Answer 13

A response to the mental health question that has not been brought up is a right to privacy. Individual's health information is personal and has been protected in numerous ways by law as well as medical board regulations. Most notable is the HIPAA regulation regarding consent of disclosing medical information and proper protection for personal health information. There is also precedence in the position of protecting individual health information regarding limits on employers to require disability information, and other similar protection considerations.

As Bobson rightly states in his comment, a legal solution to the issue posed by HIPAA protections would be consent to confirm the state of your mental health, prior to being issued a gun license. The HIPAA guidelines only require the consent of the patient. this is similar to employers requiring drug tests. However, in the case of government mandates, there are much stricter guidelines. It is often argued that the ninth amendment of the Bill of Rights, can be extended to personal health information, and therefore the government would likely have a much more difficult time making this a legal requirement.

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Another issue to consider when considering action imposed on those with mental illness is that they are often episodic. It is unclear how you could identify someone based on history, if it is not clear that it will extend to future events. Although, it can be addressed with a proper definition of what mental illnesses would be considered for restriction - One has not been provided.