Should people lose rights because they are sympathetic to, but do not actually help, terrorist groups? Should law enforcement be the arbiter of those sympathizers who should be placed on “watch lists”? 

Democrats said “yes” to both questions recently as they released a report showing that 35 gun purchases during the first half of last year were made by people on terrorist “watch lists” and called it a major public security risk. Their solution? Ban the sale of guns to people law enforcement places on the “watch list.”

Evening news broadcasts, such as CBS, led their segments on the report denouncing the sales: “As incredible as it sounds . . . .” Democratic Senators such as Hillary Clinton, Jon Corzine, Ted Kennedy, Carl Levin, Charles Schumer, and Frank Lautenberg quickly came out strongly saying that “suspected” individuals should be prohibited from buying guns.

The 35 “suspected” purchases, out of 3.1 million total transactions, were allowed because background checks found no prohibiting information. No felonies or disqualifying misdemeanors, for example. They were neither fugitives from justice nor illegal aliens. Nor had they ever disavowed their US citizenship.

The FBI was alerted when these sales took place, but the transactions weren’t stopped because the law didn’t prohibit them. “Suspects” didn’t have to be foreigners. They may have simply been individuals classified by law enforcement as sympathetic to militia groups or other undesirable domestic organizations. Ironically, this debate occurred as the U.S. Supreme Court slapped down state laws that use police reports to set prison sentences because police reports are not reliable. Being on the “watch list” would also just rely on police reports. There would be no adjudication by a judge, no trial by jury, before being placed on the list. Some politicians have recently experienced being on a “watch list” firsthand. 

Sen. Ted Kennedy was understandably upset last year and publicly complained to the Senate Judiciary committee when he was prevented from flying on an airplane because his name was placed on just such a “watch list.” Rules did not allow him to be told at the airport why he was being denied a ticket, but fortunately for him being a U.S. senator meant the problem was solved with a few telephone calls.

Ultimately, though, despite all the fears generated, background checks simply aren’t the solution. The Federal Brady Act has been in effect for 11 years and state background checks even longer. But despite all the academic research that has been done, a recent National Academy of Sciences report could not find any evidence--not a single published academic study--that background checks reduce any type of violent crime.

Surely, it would be nice if these regulations worked. But it's hard to believe they will be any more successful stopping terrorists. Criminals and terrorists share a lot in common, starting with the fact that what they are doing is illegal. In addition, terrorists are probably smarter and engage in vastly more planning than your typical criminal, thus making the rules even less likely to be successful.

People need to remind themselves that a “watch list” is only that. It is not even probable cause. If you had probable cause that these suspects had done something illegal, you could arrest them. 

Yet Sen. Carl Levin, for example, has been more solicitous of the constitutional rights of foreign combatants held in Guantanamo to "due process" then he is to the rights of Americans. He believes Americans can lose their rights to own a gun without an evidentiary hearing.

Democrats may think that people on "watch lists" should be denied their rights to own a gun, but what is next? Why not just make the system much “more efficient” and simply put all people “watch lists” directly in prison?

John R. Lott Jr. is a resident scholar at AEI. Sonya D. Jones is a law student at Texas Tech University.