Opinion
On April 16, Director of National Intelligence Tulsi Gabbard made good on a promise to expose the ways in which the Biden administration had weaponized the federal government against its political adversaries by releasing the Biden-era “Strategic Implementation Plan for Countering Domestic Terrorism” (SIP). The document offers a chilling look at how the federal government sought to curtail Americans’ Second Amendment rights under the dubious guise of combatting “domestic terrorism.”
According to the opening paragraph of the document, “This Strategic Implementation Plan (SIP) provides direction and guidance for implementation of the National Strategy for Countering Domestic Terrorism” and “actual implementation of the SIP should be approached in adherence to the principles which seek to ensure that US. Government efforts to address [domestic terrorism] remain consistent with the rule of law and American values.”
Apparently, the Biden administration’s idea of “the rule of law and American values” didn’t include the Bill of Rights. The document endorsed diminishing the Second Amendment rights of all Americans to target so-called “domestic terrorists.”
The document noted that a goal of the SIP was that “Lethal means for perpetrating acts of domestic terrorism are reduced.” An action item in this purported effort, which just so happened to align with the longtime goals of the institutional gun lobby, was the following,
Action 4.1.1a: Rein in the proliferation of “ghost guns”; encourage state adoption of extreme risk protection orders; and drive other executive and legislative action. including banning assault weapons and high-capacity magazines.
The Biden administration did take several steps aligned with the SIP.
In the gun control context, “ghost guns” typically refers to privately-made firearms that are manufactured for personal use without government interference and are not required to be imprinted with a a serial number under federal law. In April 2022, the Biden Department of Justice (DOJ) approved ATF final rule 2021R-05F, Definition of “Frame or Receiver” and Identification of Firearms, which overreached the agency’s authority under federal law in an attempt to curtail home manufacture of firearms. The rule, as it pertains to certain unfinished frame patterns and firearm build kits, was upheld by the U.S. Supreme Court in March in the case Bondi v. VanDerStok.
Banning privately-made firearms entirely would violate the Second Amendment. In New York State Rifle & Pistol Association v. Bruen (2022), Justice Clarence Thomas’s opinion made clear that in order for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. Specifically, the opinion noted:
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
Since before the Founding, Americans have enjoyed the right to make their own firearms without government interference. As there is no historical tradition of the government restricting the right of Americans to make their own firearms for personal use, attempts to eliminate this right do not pass constitutional muster.
So-called “extreme risk protection orders,” better known as red flag gun confiscation orders, grant the government the authority to confiscate a person’s firearms without due process of law, let alone an actual criminal conviction. As enacted, the laws can extinguish a person’s Second Amendment rights based on weak and nebulous standards of proof and without a hearing for the target of the order to be heard and to present evidence.
These confiscation order schemes treat the Second Amendment as a second-class constitutional right. Moreover, as with attacks on privately-made firearms, red flag laws have no historical basis. Red flag supporters have even touted the unconstitutional measures as “innovative.”
The Biden administration used taxpayer money to fund a red flag law clearing house at the Johns Hopkins Bloomberg School of Public Health – named for Billionaire gun control bankroller Michael Bloomberg. With an assist from Congress, the Biden administration also used tax dollars to fund red flag confiscation order regimes in several states.
The inclusion of red flag measures in the SIP document as a tool to supposedly combat “domestic terrorism” is especially concerning. This suggests that the Biden administration may have been seeking to create due process-free mechanisms to strip the Second Amendment rights of political adversaries who had committed no crime under a questionable “domestic terrorism” justification.
As for “banning assault weapons and high-capacity magazines,” the inefficacy of that policy was illustrated for all during the 1994-2004 Clinton gun ban. In District of Columbia v. Heller (2008), the Supreme Court made clear that the Second Amendment protects the ownership of firearms “in common use” “for lawful purposes like self-defense.” The AR-15 is the most popular rifle in the U.S.
As with the actions of criminals generally, the potential behavior of an actual “domestic terrorist” should not be used as a justification to undermine the Constitutional rights of all Americans. However, the Biden administration’s actions are even more chilling given what that regime and some of its predecessors tried to target under the rubric of “terror.”
First consider some of the language used in the document. The item, supposedly targeted at “terrorism,” notes that it seeks to ensure “[n]orms of non-violent political expression and rejection of racism and bigotry are strengthened” and to “mitigate xenophobia and bias.” Another goal is to guarantee “Americans have increasing faith in democracy and government.”
What is asserted as “racism” and “bigotry,” however, are constantly shifting concepts that politicians often use in bad faith to attempt to discredit their opponents. In almost every such case, the right to hold and express such beliefs is protected by the First Amendment and is often well within mainstream discourse. Protected speech should never be the basis for government surveillance or used as a justification for diminishing other Constitutional rights.
As for “faith… in government,” a healthy skepticism of government is an integral part of the American tradition and, given the behavior outlined in the document at issue, downright prudent.
Second, previous federal governments have repeatedly attempted to target their political adversaries under a “domestic terrorism” framework.
In 2023, it came to light that the Biden FBI was targeting devout Catholics under a “domestic terrorism” justification. A report on the episode from the U.S. House of Representatives Committee on the Judiciary and the Select Subcommittee on the Weaponization of the Federal Government explained:
The Committee on the Judiciary and the Select Subcommittee on the Weaponization of the Federal Government have been investigating the Federal Bureau of Investigation’s (FBI) categorization of certain Catholic Americans as potential domestic terrorists. While the FBI claims it “does not categorize investigations as domestic terrorism based on the religious beliefs—to include Catholicism—of the subject involved,” an FBI-wide memorandum originating from the FBI’s Richmond Field Office did just that. Under the guise of tackling the threat of domestic terrorism, the memorandum painted certain “radical-traditionalist Catholics” (RTCs) as violent extremists and proposed opportunities for the FBI to infiltrate Catholic churches as a form of “threat mitigation.”
In early 2022, a group of Republican senators confronted the Biden administration for what they cited as a scheme by the Merrick Garland-led DOJ to label concerned parents who attended school board meetings as “domestic terrorists.” In a letter, the senators reminded the Secretary of Education of some obvious truths: “Parents are not ‘domestic terrorists’ and it is appalling that anyone would suggest that exercising the constitutionally protected freedoms of speech and assembly would be characterized as a threat.”
Consider the 2009 Obama-era U.S. Department of Homeland Security report “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.” The report explicitly targeted Second Amendment supporters and returned military as potential terrorists, stating,
The possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks.
Further targeting gun rights supporters for heightened scrutiny, the report went on to explain:
Weapons rights and gun-control legislation are likely to be hotly contested subjects of political debate in light of the 2008 Supreme Court’s decision in District of Columbia v. Heller in which the Court reaffirmed an individual’s right to keep and bear arms under the Second Amendment to the U.S. Constitution, but left open to debate the precise contours of that right. Because debates over constitutional rights are intense, and parties on all sides have deeply held, sincere, but vastly divergent beliefs, violent extremists may attempt to co-opt the debate and use the controversy as a radicalization tool.
Previous federal governments have shown a repeated willingness to target their political opponents by abusing the empty “domestic terrorism” label. Addressing actual dangerous criminals, let alone anyone an overreaching federal government might disfavor, cannot be the justification for a wholesale assault on Constitutional rights. Gun owners must recognize the federal government’s Constitutionally bankrupt “domestic terrorism” label and justifications for the political effort they are and inform others of this cynical strategy to undermine Constitutional rights.
About NRA-ILA:
Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess, and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: www.nra.org
