Cornell Law Review

Below is an excerpt from Beware the “Terror Gap’s” Introduction:

There are undoubtedly holes in national security law. In fact, terrorism would not be such a considerable threat if there were not gaps and vulnerabilities that terrorists could discover and exploit. This is simply the nature of the current “cat and mouse” game.’ ^{11. 14 See generally Bonnie Kristian, As ISIS Spreads, the U.S. Must Not Play Cat and Mouse, HUFFINGTON POST (Aug. 12, 2016, 10:23 AM), http://www.huffing tonpost.com/entry/as-isis-spreads-the-us-must-not-play-cat-and-mouse-us57addbc4e4b03d06fe8494b3 [https://perma.cc/JN53-336B] (arguing that the United States, as the cat, should instead adopt a strategy of defense against ISIL, the mouse).} For national security officials, the goal is to recognize and isolate the gaps, constrict them to create a temporary solution, and then close them permanently.

One such gap is the loophole in U.S. law that allows individuals appearing in the TSDB to legally purchase firearms—this is the “terror gap.” ^{22. 15 Closing the Terror Gap, EVERYTOWN FOR GUN SAFETY SUPPORT FUND (June 17, 2016), https://everytownresearch.org/documents/2015/12/closing-terror-gap .pdf [https://perma.cc/2HEQ-B7SY]; see Berman, supra note 12.} Certainly this gap has been recognized and isolated: with the increasing threat of terrorism on U.S. soil, ^{33. 16 See, e.g., Lilly Chapa, Domestic Terrorism Is on the Rise, ASIS INT’L: SECURITY MGMT. (Dec. 4, 2015), https://sm.asisonline.org/Pages/Uprooting-Home
grown-Terror.aspx [https://perma.cc/U73D-MXDR (arguing that individuals who have no connection to terrorist groups are increasingly carrying out acts of domestic terrorism).} as exemplified by the Orlando and San Bernardino tragedies, Congress can agree that guns are too easily getting into the hands of terrorists. ^{44. 17 For a discussion of what constitutes “terrorism,” see infra note 33.} Although there have been legislative attempts to close the “terror gap,” no statutory remedy has emerged that would successfully marry U.S. firearms regulations with the terrorist watchlist system. ^{55. 18 See infra Part II} Yet the lack of coordination between the current gun background check system and the terrorist watchlist system is allowing individuals, like Omar Mateen, to slip through the system. The United States must find a permanent solution to fill the gap, one that reduces the threat of gun-driven terrorism, adheres to the Second Amendment guarantee for an individual’s right to bear arms, and avoids the constitutional pitfalls all too common when there is a tightening of national security laws.

In this Note, I will argue that closing the “terror gap” requires a reexamination and modernization of the interaction between the watchlist system and firearms regulations. I will suggest that direct statutory reform will fail, and I will offer a solution to indirectly close the loophole that combines construction of a modernized, refined watchlist system based on a tier structure with a system of “sticks and carrots” on the state and local level. In Part I, I will provide the relevant background information related to current terrorism statutes and definitions, the watchlist system, and firearms regulations. In Part II, I will examine past and recent attempts at closing the loophole, including Former President George W. Bush’s attempt after 9/11, Senator Diane Feinstein’s (D-CA) amendment, Senator John Cornyn’s (R-TX) amendment, and Senator Susan Collins’s (R-ME) bi-partisan approach. I will explain why these initiatives have not been successful. Part III offers a new approach. I will conclude by suggesting that whatever mechanism is used to close the loophole should not be considered a compromised or “second-best” solution.