The answer to whether or not we could have done better in identifying the threat the Tsarnaev brothers posed is almost certainly YES. The reasons for that answer are unlikely to sit well with Second Amendment purists. Yet, the need for change in the form of universal background checks for gun purchases is unmistakable
So this is the patchwork nature of our war on terror: If you are a "suspected threat to aviation" the government can bar you from flying on commercial aircraft. If you are an American citizen tagged as a supporter of terrorism, the government can indefinitely detain you without a trial and even without charges being filed. If you are an American citizen living in Yemen, say, and are suspected of terrorist ties you can be killed by a drone's hellfire missile strike — also without a trial.
But if you are a foreign or domestic terrorist or sympathizer living in the United States, whether connected to Al Qaeda or the Taliban or white supremacists, or even a radicalized loner, you can – in 33 states – walk into a gun show and purchase any kind of a weapon you want. You can even purchase something as deadly as a .50 caliber sniper rifle capable of penetrating some armored vehicles. You can do this without a background check or waiting period and without notice to any national agency, not to Homeland Security, not to the FBI, not even to ATF — the federal agency tasked with investigating illegal use of firearms.
Only seven states require background checks on all gun sales at gun shows (California, Colorado, Rhode Island, Connecticut, Oregon, New York, and Illinois). And even if you are on the federal terrorism watch list (a list of some 450,000 people that is much more extensive than the simple no-fly list) you can buy guns at a gun show without any federal agency knowing, because there is no federal gun show background check requirement at all.
As a recent Salon piece notes, the federal government can prevent a firearm sale for only 11 specific reasons — suspected ties to terrorism, or even suspicion that a gun would be used in an attack, are not one of them. Moreover, between February 2004 and December 2010, over 90% of the 1,453 people on the federal terror watch list that tried to buy a gun were allowed to.
The organization Mayors Against Illegal Guns notes, "American-born terrorist Azzam al-Amriki touted the ease with which, '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.'" Representative Peter King (R-N.Y.), who's sponsored a measure addressing the issue in every Congress since 2007, comments, "right now federal law prohibits nine categories of dangerous persons from purchasing or possessing firearms. Remarkably, persons on the terror watch lists are not among these."
Tamerlan and Dzhokhar Tsarnaev, the brothers accused of the Boston Marathon bombing last week also engaged in a deadly firefight with police. They had with them bombs, handguns, a rifle and more than 250 rounds of ammunition. The guns were unlicensed and how they obtained them is still under investigation.
Equally stunning; current federal law allows someone to purchase as much as 50 pounds of explosive "black powder" – the apparent explosive the Tsarnaev brothers used in their pressure cooker bombs – and unlimited amounts of "smokeless powder" and "black powder substitute" without a background check. Several news outlets have reported that Tamerlan Tsarnaev walked into a New Hampshire fireworks store two months before the Boston bombing and bought fireworks containing three pounds of black power. This, the NY Daily News reports was the same store that sold Times Square bomber Faisal Shahzad the firecrackers he used to build his failed car bomb.
I believe that the Constitution – including the Second Amendment guaranteeing the right to keep and bear arms – is a vital document enumerating civil liberties and protections the nation must accord all its citizens. But as Abraham Lincoln averred, and the Supreme Court has echoed, the Constitution is not a suicide pact. The courts have allowed First Amendment free speech rights to be tempered as to time and place. The courts have allowed exigent warrantless searches under the Fourth Amendment. Fifth and Sixth Amendment rights against self-incrimination and to be informed of the right to counsel may be briefly delayed when public safety is threatened.
I do not believe the Second Amendment rights of any law abiding American citizen would be impaired by requiring that all gun sales, whether by licensed dealers or between private parties, be subject to state and federal background checks. Nor would a law allowing the FBI to bar sales of guns or explosives to anyone failing to pass such a check (whether because of prior criminal record or terrorist connections) in any way infringe such a law abiding citizen's rights under the Second Amendment.