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The No Fly, No Buy Act

May 15, 2009 - by Donny Shaw

Here’s a new piece of legislation that combines the most loathed issue on OpenCongress, gun control, with one of most notorious examples of mismanaged bureaucracy in recent years. The No Fly, No Buy Act, which was introduced into Congress by Rep. Carolyn McCarthy [D, NY-4] on May 13, would take all the names that appears on the TSA’s No-Fly list and put them automatically into the National Instant Criminal Background Check System database.

The no-fly list is designed to stop terrorists from boarding planes, but many people have been put on the list in error and people with the same name or a similar name to someone on the list – “false positives” – are held up at the gate and sometimes prevented from flying. This has included such unlikely terrorist suspects as Senator Ted Kennedy, Rep. John Lewis, and former Senator Ted Steven’s wife, Catherine Stevens (Wikipedia has a good rundown of notorious “false-positive” cases). The no-fly list is kept secret, so there is no way to know before going to the airport whether your name or a similar name has been put on it. Transferring the full no-fly list onto National Instant Criminal Background Check System would create similar problems for innocent people trying to buy guns. In fact, it could be worse.

When “false positives” try to board a plane, they are generally allowed to board after some additional questioning and showing airline officials or TSA officers additional identification. But, under this bill, when these people go to buy a gun, they won’t be able to be cleared until going through the TSA redress process, which generally requires mailing notarized copies of birth certificates and takes who knows how long to complete. Alternatively, they could submit an appeal National Instant Criminal Background Check System operations center. Either way, McCarthy’s legislation does not make any changes to the process for dealing with mistaken identities. Gun sellers would not be permitted to determine that a “positive” match is, in fact, false.

In announcing the introduction of her legislation, Rep. McCarthy said: “For far too long, the ‘terror gap’ has left a wide open loophole in our nation’s gun safety laws that could allow terrorist to acquire guns the same way any law abiding citizen can." A press release from her office explains:

Newly released FBI data documents 230 occasions in 2006 where persons on the violent gang and terrorist watch list were able to purchase guns. Furthermore, in January 2005, the GAO reported that in a five-month period—February 3, 2004 through June 30, 2004—NICS checks resulted in an estimated 650 terrorist-related record hits in their databases. Of these, 44 were found to be valid. However, 35 of these transactions were allowed to proceed because being identified as a known or suspected terrorist is not grounds to prohibit a person from being transferred a firearm under current law.

There is an alternative measure to deal with the issue already in Congress: the Denying Firearms and Explosives to Dangerous Terrorists Act. That bill would empower the Attorney General to determine that a person is “known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support thereof,” and deny them the ability to buy guns.

So the question at this point for Congress, if they are to tackle the issue of suspected terrorists buying guns, comes down to these two proposals: empowering an unaccountable official to hand select people he suspects are terrorists, or automatically transferring a secret suspect list that is notoriously prone to error and misuse. Or is there a better option?

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