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Obama to expand background checks, close ‘gun show loophole’ by fiat

With President Barack Obama reportedly set to issue a series of executive orders that would impose gun control measures by fiat rather than by legislative due process, he met with former New York City Mayor Michael Bloomberg on Dec. 16 in a White House huddle with ominous implications for Constitutional law.

According to CNN, Obama has met with a series of gun control advocates — including former U.S. Rep. Gabby Giffords, gravely wounded during a 2011 shooting in Tucson, Ariz. — in recent weeks as his aides complete work on a potential order expected to expand background checks on gun sales by closing the so-called “gun show loophole.”

A timeline on the order — which, CNN notes, has been tangled in legal and administrative questions — was uncertain on Dec. 18.

Despite what Obama perceives as a groundswell of support for executive actions expanding background checks and closing the “gun show loophole,” a new survey revealed Americans do not support imposing more restrictions on semi-automatics because, apparently, the understand that the term “assault weapons” is a politically contrived meaningless vagary that would do nothing to prevent gun violence.

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WHEN ‘WHAT?’ IS IN A NAME
Constitutional experts: State cannot deny rights to those on secret ‘terror watch lists’

On Dec. 10, Connecticut Gov. Dannel Malloy announced plans to issue an executive order barring anyone listed on federal terrorist watch lists from purchasing a gun in the state. While it sounds brave and bold, Constitutional experts say such a policy may be unconstitutional.

The problem, Elizabeth Goitein, co-director of the Liberty & National Security Program at New York University’s Brennan Center for Justice told Time.com, is the watch lists themselves because they are both secret and routinely updated without the due process given to those who are accused of breaking the law, such as court proceedings.

Without a trial, Goitein said, the government can add anyone to watch lists who it believes may be a threat to national security — and exactly how the government defines such a threat isn’t public knowledge. “The government doesn’t release its criteria,” she said. “It’s really a black box.”

The Wall Street Journal has reported that there are 16,000 names on the list, with the FBI’s Terrorist Screening Database including as many as 420,000 names.

In 2014, a federal court found the no-fly list unconstitutional because it denied those listed due process in challenging their inclusion. Since then, according to Time, the U.S. government has provided more information to those who are on the list about why they are on the list, potentially allowing persons banned from air travel to appeal and get their names removed.

Other constitutional law scholars say they have the same due-process concerns. “We generally don’t take away rights based on suspicion,” UCLA law professor Eugene Volokh told Time. “The government has to have some proof. If all the government can say is we suspect you of supporting terrorism, that’s not enough.”

The legal impracticality of imposing such a ban hasn’t dissuaded lawmakers in New York, Massachusetts, Illinois and California from pandering to public fear in grandstanding vows to do so — as Connecticut’s Gov. Malloy did in his bold, brave but empty pledge on Dec. 10.

However, according to ABC News, one state—New Jersey—has been denying gun purchases to those on the terror watch list since 2013.

Under a law signed by Gov. Chris Christie, people buying guns or applying for a firearm permit can be blocked as part of the routine criminal history check, conducted through the National Crime Information Center, of their name appears on the NCIC’s “known or appropriately suspected terrorist” list.

ABC News reports the U.S. Government Accountability Office said in March that people on the FBI’s terrorism watch list successfully passed background checks required to purchase firearms 2,043 times between 2004 and 2014.

It all comes down to which list an applicant is on. According to ABC News, the National Counterterrorism Center says there are about 1.1 million people, including about 25,000 U.S. citizens, on the 2013 version of the international Terrorist Identities Datamart Environment list, a repository of information used globally to compile the consolidated Terrorist Screening Database.

Are those 25,000 names included among the 420,000 names in the FBI’s Terrorist Screening Database and do they include the 16,000 names on the no-fly list?

Who knows? It’s all secret. That is, secret until someone, somewhere, somehow decides a name belongs on a list and, as a result, a U.S. Senator, a Congressman, a grandmother, an 18-month-old is suddenly a suspected terrorist and cannot board a plane.

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STATE ROUNDUP
California again rated nation’s most anti-Constitutional state

The Law Center to Prevent Gun Violence on Dec. 17 issued its annual ranking of states with the least respect for the U.S. Constitution and, for the fifth time since 2010, California earned the dubious distinction.

The LCPGV’s 2015 annual scorecard, which tracks every state’s gun legislation, ranks all 50 states based on 30 policy approaches regulating guns and ammunition, including strengthening background checks, limiting the purchase of multiple firearms per month and reporting lost or stolen firearms.

California has taken the No. 1 slot every year since the center first published its rankings in 2010. California has enacted some unique laws, including the Gun Violence Restraining Order law, which allows authorities to suspend temporarily individuals’ access to guns if they are viewed as posing a significant threat to public safety. In 2015, nine states passed laws preventing domestic abusers from accessing firearms.

This year, the state passed a measure requiring residents with concealed carry licenses to obtain written permission from school officials before carrying firearms or ammunition onto the grounds of K-12 schools or university campuses.

Kansas, which now ranks as the state with the most respect for the Constitution, in 2015 repealed its requirement for residents to have a license to carry a concealed firearm in public.

The center named the biggest legislative success this year as the new universal background check law in Oregon, enacted in May. Federal law requires background checks only on purchases at licensed firearms dealers, not at gun shows and on the Internet. But seven other states—California, Colorado, Connecticut, Delaware, New York, Rhode Island, and Washington—also have laws requiring universal background checks.

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IN THE COURTS
Ruling suspended because visiting judge had no authority to hear D.C. gun-law case

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled on Dec. 15 that a visiting judge who ordered the District to stop enforcing its strict laws for carrying concealed firearms had no authority to hear the case.

The panel said the judge from upstate New York was erroneously assigned to the case after hearing an earlier, related challenge to the city’s gun-control laws.

“We realize that we are undoing the work of litigation to date, but we have no choice,” wrote Judge David B. Sentelle, who was joined by Judges Cornelia T.L. Pillard and Laurence H. Silberman.

The court’s decision means that the case will almost certainly be assigned to a D.C.-based federal judge to hear the ongoing challenge to a provision of the law that requires a person to state a “good reason” to carry a firearm on the streets of the nation’s capital.

D.C. Attorney General Karl A. Racine told Ann E. Marimow of the Washington Post that the ruling “good news for public safety” and said the case probably will be heard “before a judge from our community — something that we have argued is crucial to understanding the public-safety issues at stake.”

Last spring, U.S. District Judge Frederick J. Scullin Jr., ruled the city’s concealed-carry law “impinges” on the Second Amendment right to bear arms. In June, the appellate court overturned Scullin’s preliminary injunction and allowed the city to enforce its rules until a final decision could be reached.

According to the Associated Press, Scullin was initially appointed in 2011 to the court to alleviate a docket backlog. D.C. attorneys appealed Scullin’s injunction, claiming he was not properly assigned to preside over the subsequent case.

Alan Gura, an attorney representing members of the nonprofit Second Amendment Foundation in both cases, told the Washington Post’s Marimow that Scullin’s authority was not “time-limited,” noting the D.C. Attorney General’s Office did not raise concerns about the judge’s authority until after the appellate court highlighted the issue.

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Appeals court says visiting judge had no authority to hear D.C. gun-law case

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