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Republican Senate candidates are up in arms over 2nd Amendment

In a debate, Chuck DeVore and Carly Fiorina argue for allowing those on the no-fly list to buy guns. Tom Campbell, a professor of constitutional law, is incredulous.

May 12, 2010|George Skelton | Capitol Journal

So let me get this straight: Some guy is deemed too dangerous to be allowed aboard an airplane, but he can leave the terminal and buy an AK-47?

After all, he hasn't actually committed an act of terrorism.

We wouldn't want to "infringe" on anyone's 2nd Amendment rights.

The National Rifle Assn. might get upset and retaliate against any politician who allowed that.

But like most policy issues, this is not all black and white.

There is a reasonable argument for letting the fellow arm himself. Otherwise, he'll be denied a constitutional right without due process of law. He may well have been placed on the federal government's "no-fly" list secretly and erroneously — as was the late U.S. Sen. Edward M. Kennedy, and as was the sister-in-law of California U.S. Senate candidate Carly Fiorina.

But ironically, this sounds more like an argument from the civil libertarian left than from the tough-on-crime right.

The issue arose during a debate last week between the three candidates for the Republican Senate nomination: Fiorina, the former Hewlett-Packard chief executive; Tom Campbell, a former congressman; and Assemblyman Chuck DeVore of Irvine.

Gun rights haven't been a contentious issue in the Senate campaign, but three factors made it pertinent in the debate. It came only five days after the botched terrorist bombing attempt in New York's Times Square. It highlighted one very sharp difference between the moderate Campbell and conservatives Fiorina and DeVore.

And currently pending in the Senate is a bill that would allow the FBI to block gun sales to people on its "terrorist watch list." The sponsor is Sen. Frank. R. Lautenberg (D-N.J.). California Democratic Sen. Dianne Feinstein is a lead co-sponsor. And supporting the measure is Sen. Barbara Boxer (D-Calif.), who is up for reelection and will face one of the three Republican contenders in November.

"In America today, someone can be a known or suspected terrorist, barred from boarding an airliner, yet they can turn around and purchase firearms," Feinstein says. "That makes no sense. Closing the 'terror gap' in America's gun laws is an urgent matter of national security."

In case you missed it, this was the brief but revealing debate exchange:

Moderator: "Should people on the no-fly watch list be allowed to purchase a gun? [Actually, the "no fly" and "terrorist watch" lists are separate, but the basic idea's the same.]

Campbell: "Ahh, NO." [As in: Duh, why do you even ask?]

DeVore: "Yes, if they haven't been convicted of a felony."

Fiorina: "Yes."

Moderator: "OK."

Campbell (always calm and civil): "Oh, my goodness."

DeVore: "It's called the 2nd Amendment, Tom."

Fiorina: "That's why Tom Campbell has kind of a poor rating from the National Rifle Assn., right there."

Campbell: "… I can't believe what I'm hearing. Wait 'til you're off the no-fly list, then exercise your 2nd Amendment rights. That is not an infringement on anyone's 2nd Amendment rights. And it seems somewhat unusual to take that position — except, perhaps, in a Republican primary."

DeVore: "So a bureaucrat or an intelligence officer can abridge your rights without a trial? That's very interesting."

Fiorina: "… The no-fly list has been unfortunately way too large. And I know people who have been on it, who have been stopped. And if we permit anyone who is on that no-fly list to have their 2nd Amendment rights taken away from them, that's a terrible problem. You're seeing an example of an issue where Tom Campbell is far too close to Barbara Boxer for my taste."

Right here we should reprint the awkwardly written 2nd Amendment: "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."

Americans have argued for 221 years over exactly what that means. In 2008, the Supreme Court ruled for the first time that the right to bear arms applies to individuals. The militia, in essence, comprises all of us, according to my foremost authority: longtime constitutional law professor Campbell.

I asked Campbell about the first half of the 2nd Amendment: Couldn't that be interpreted to mean that we, the militia, must be regulated to assure the nation's security? And how does that mesh with allowing suspected terrorists to arm themselves?

"Perfect," he replied. "Somebody on the no-fly list would be a pretty good candidate to be regulated."

Campbell added: "Virtually every right in the Bill of Rights is subject to reasonable restrictions. There's free speech, but you don't have a right to use a megaphone in a residential neighborhood on a weekend morning.

"The Supreme Court has ruled there's a constitutional right to travel. But if you're on a no-fly list, you can't travel by airplane."

Hold on, DeVore said when I called him. "You don't have a constitutional right to get on an aircraft. That's not enshrined in the Bill of Rights. But the right to own a gun is enshrined."

A person denied an airline boarding pass still can travel by bus, train or steamship, he noted.

Denying gun purchases for people placed arbitrarily on the no-fly list violates both the 2nd and 5th ("due process") amendments, DeVore contended.

People can be placed on the no-fly list without ever knowing it until they check in at the airline ticket counter.

Fiorina's sister-in-law unhappily learned that way. Apparently she had the same name as a suspected terrorist. It took her a long time to escape the list.

"If you're falsely on the list, sue to get yourself off," Campbell asserted.

He apparently has never tried to sue government bureaucrats.

Still, on public safety, list me as a conservative. A common-sense conservative guided by caution. Don't allow anyone to arm himself if there's even a remote possibility he might be a terrorist.

george.skelton@latimes.com

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