On December 2, 2015, two terrorists killed 14 people and injured 22 more in a mass shooting in San Bernardino, California. The terrorists had passed background checks at a local gun store and easily acquired the four firearms they used in the shooting.1
Unfortunately, the San Bernardino shooting was not the first time terrorists used firearms to carry out attacks on American soil, and it is unlikely to be the last:
- On November 5, 2009, Nidal Hasan, a US Army major and psychiatrist, fatally shot 13 and injured an additional 32 people at the army base in Fort Hood, Texas. The shooter was under investigation for his terrorist ties at the time.2
- On May 3, 2015, two men with assault rifles approached a convention center in Garland, Texas, that was holding an anti-Muslim art show and shot a security guard. The shooters were killed by a SWAT team before they could continue their plan. Federal authorities had already begun an investigation into the shooters.3
- On July 15, 2015, a man opened fire on two military installations in Chattanooga, Tennessee, killing four people. The man has been described as a “homegrown violent extremist.”4
In total, there have been 17 terrorist attacks in the US since September 11, 2001, with six attacks resulting in fatalities. All six of those deadly attacks involved firearms. These attacks killed 28 people—25 of whom were shot to death.5 According to a 2014 Indiana University study, almost all of these attacks involved “lone wolf” terrorists whose connections to organized terrorist groups like ISIS were limited.6
Needless to say, guns have become a weapon of choice for many terrorists (and terrorist sympathizers) in the US. In 2011, an American-born al-Qaeda spokesman named Adam Gadahn took to YouTube to exhort sympathizers to arm themselves for attacks: “America is absolutely awash with easily obtainable firearms. You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely without having to show an identification card. So what are you waiting for?”7
While the reference to fully automatic weapons is technically incorrect, it is true that federal law does not make a person on the terrorist watchlist ineligible to possess a firearm, despite the clear dangers posed by such a loophole—and the fact that the vast majority of Americans, including the vast majority of gun owners, support closing it.8 The Law Center’s description of federal and state laws regarding the “terror gap” follows below.
Summary of Federal Law
Federal law requires licensed firearms dealers to initiate a background check on gun purchasers. The federal and state agencies that conduct these background checks are only authorized to deny the sale of a gun to a person if the person is legally ineligible to purchase or possess a firearm.9
The nine groups of people that are deemed ineligible by current federal law to own firearms include felons, domestic abusers, and individuals who have been deemed mentally ill10—but federal law does not currently prohibit individuals on the terrorist watchlist from passing a background check and legally buying guns.
While the terrorist watchlist includes more than 700,000 people, about 95% are foreign nationals, making them ineligible to buy a gun in the United States regardless of their status on the watchlist.11 Still, between February 2004 and December 2014, individuals on the terror watchlist were able to buy firearms 2,043 times, due to the federal government’s failure to take legal action to close the watchlist loophole.12 In 2015 alone, known or suspected terrorists underwent background checks to purchase firearms 244 times—and 223 of those transactions, or 91%, were allowed to proceed.13
Support for closing the terror gap is widespread and bipartisan, and those who have supported closing this loophole include President George W. Bush, former FBI Director Robert Mueller, former Attorney General Alberto Gonzales, 9/11 Commission Chairman Thomas Kean, former New York Police Commissioner Ray Kelly, and the International Association of Police Chiefs.14
Summary of State Law
Despite the clear benefit in closing the terror gap, virtually no states have enacted legislation regarding the terrorist watchlist.
New Jersey enacted a law in 2013 that prohibits issuing gun purchase permits to those on the terrorist watchlist.15 The New Jersey State Police has confirmed that people on the watchlist have been denied guns based on this state law.16
Key Legislative Elements
The features listed below are intended to provide a framework from which policy options may be considered. A jurisdiction considering new legislation should consult with counsel.
- State law prohibits gun sales or transfers to, and gun purchases by, individuals on the terrorist watchlist maintained by the Terrorist Screening Center administered by the Federal Bureau of Investigation.
- “Everything we know about the San Bernardino terror attack investigation so far,” Los Angeles Times, Dec. 14, 2015, at http://www.latimes.com/local/california/la-me-san-bernardino-shooting-terror-investigation-htmlstory.html. ⤴︎
- Elisabeth Bumiller and Scott Shane, “Pentagon Report on Fort Hood Details Failures,” New York Times, Jan. 15, 2010, at http://www.nytimes.com/2010/01/16/us/politics/16hasan.html. ⤴︎
- Associated Press, “Gunman’s hashtag ‘#texasattack’ hinted at Texas plot,” The Florida Times-Union, May 6, 2015, at http://jacksonville.com/breaking-news/2015-05-06/story/gunmans-hashtag-texasattack-hinted-texas-plot. ⤴︎
- John Bacon, “FBI: Chattanooga shooter was ‘homegrown violent extremist’,” USA Today, July 22, 2015, at http://www.usatoday.com/story/news/nation/2015/07/22/fbi-chattanooga-shooter-homegrown-violent-extremist/30513541. ⤴︎
- Louis Klarevas, “There Have Been Few Fatal Terror Attacks in America Since 9/11. Almost All Have Involved Guns,” The Trace, Nov. 30, 2015, at https://www.thetrace.org/2015/11/terrorists-guns-united-states. ⤴︎
- Mark Hamm and Ramon Spaaj, Lone Wolf Terrorism in America: Using Knowledge of Radicalization Pathways to Forge Prevention Strategies, Indiana University, Feb. 2015, at https://www.ncjrs.gov/pdffiles1/nij/grants/248691.pdf. ⤴︎
- Igor Volsky, “How Terrorist Sympathizers Exploit America’s Gun Laws,” ThinkProgress, Dec. 4, 2015, at https://thinkprogress.org/how-terrorist-sympathizers-exploit-americas-gun-laws-53009b7adffc#.styxsa1s4. ⤴︎
- Colleen L. Barry et al., After Newtown—Public Opinion on Gun Policy and Mental Illness, New England Journal of Medicine, March 21, 2013, at http://www3.med.unipmn.it/papers/2013/NEJM/2013-03-21_nejm/nejmp1300512.pdf. ⤴︎
- 18 U.S.C. § 922(t). ⤴︎
- 18 U.S.C. § 922(g). ⤴︎
- Eugene Kiely, “Rubio Wrong on Terrorist List,” Factcheck.org, Dec. 7, 2015, http://www.factcheck.org/2015/12/rubio-on-terrorist-watchlist. ⤴︎
- Christopher Ingraham, “From 2004 to 2014, over 2,000 Terror Suspects Legally Purchased Guns in the United States,” Washington Post, Nov. 16, 2015, at https://www.washingtonpost.com/news/wonk/wp/2015/11/16/why-the-nra-opposed-laws-to-prevent-suspected-terrorists-from-buying-guns. ⤴︎
- Eric Bradner, “9-in-10 on terror watch list who sought guns were approved in 2015,” CNN, June 14, 2016, at http://www.cnn.com/2016/06/14/politics/terrorist-watch-list-91-percent-approved-guns/index.html. ⤴︎
- Americans for Responsible Solutions, Capt. Mark Kelly Calls on The Senate to Close the Terror Gap, Help Keep Guns Out of The Hands of Terror Suspects, June 15, 2016, at http://americansforresponsiblesolutions.org/2016/06/15/terror-gap. ⤴︎
- N.J. Stat. § 2C:58-3(c)(9), as amended by 2012 N.J. A.N. 3687. ⤴︎
- Mark Pazniokas, “N.J. already using U.S. watch lists to screen gun buyers,” Connecticut Mirror, Dec. 11, 2015, at http://ctmirror.org/2015/12/11/n-j-already-using-u-s-watch-lists-to-screen-gun-buyers. ⤴︎