Sen. Christopher Murphy (D-Conn.). was outraged about the lack of gun legislation following the Orlando terror attack, so he decided to talk about it, for 15 hours. While most filibusters work to dissuade a vote, Murphy did it for just the opposite reason, to convince Republican majority leader Mitch McConnell (R-Ky.) to allow votes as part of the next Senate Appropriations Bill, and it worked, the votes are underway.
The push is not for one item of legislation, rather two prominent independent pieces of legislation and many amendments. While they each represent gun control, an analysis of each shows they will be hard to pass — each will require 60 votes to pass — and may be more about giving members an opportunity to say they voted for something that had little chance of ever becoming law.
In other words, it may just be election year optics.
First, Senator Dianne Feinstein (D-Calif.) proposes that all individuals on the terror watch be barred from buying guns and allowing the Justice Department to arbitrate disputes of people who mistakenly end up on terror watch lists. However, just last year a similar proposal failed after the San Bernardino shootings.
The new Feinstein amendment states, “the Attorney General may deny the transfer of a firearm if the Attorney General determines, based on the totality of the circumstances, that the transferee represents a threat to public safety based on a reasonable suspicion that the transferee is engaged, or has been engaged, in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources therefor.”
House Speaker Paul Ryan (R-Wis.), spoke adamantly against this legislation, stating that it evades due process, and has explained he will not allow it to pass in the House. Ryan told the Washington Post on Thursday in regards to the Orlando Massacre that “We want to make sure that something like this doesn’t happen again. Everybody wants that. But as we look at how to proceed, we also want to make sure that were not infringing upon peoples legitimate constitutional rights. That’s important.”
Next, the proposal by Sen. John Cornyn (R-Texas) would, according to a press release from Cornyn’s office, if a person on a terrorist watch list attempted to purchase a gun, “The Attorney General or designee has the authority to delay the transfer of a weapon for up to three (3) business days while relevant law enforcement agencies conduct an investigation. Federal, state, and local law enforcement officials are notified immediately so they can monitor the situation. A U.S. Attorney could permanently block the transfer upon a showing of probable cause before a judge that the individual is involved in terrorism. Further, the Attorney General or designee then has the authority to immediately take the prospective purchaser into custody if a judge determines there is probable cause that the individual is involved.”
The Cornyn proposal has received backing from the National Rifle Association (NRA), which released a statement saying “due process protection should be put in place that allow law-abiding Americans who are wrongly put on a watch list to be removed.”
But in neither the Feinstein nor the Cornyn proposals does there appear to be any requirement that a crime have been committed and a conviction delivered, before the purchase can be blocked. For example, in the Cornyn proposal, yes it has to go before a judge, but if the Attorney General had a judge state that there is probable cause that an act of terrorism has been or will be committed, why is arrest and prosecution then at the Attorney General’s discretion?
In short, shouldn’t the government have to prove its case to a jury and obtain a conviction first? Isn’t that what the Constitution requires via due process under the Fifth Amendment? That “no person shall… be deprived of life, liberty, or property, without due process of law.” Otherwise, there could be the contradictory situation where a purchase was blocked but no prosecution sought. And even then it cannot be that the only crime being prosecuted is the attempt to purchase the gun. There has to be evidence of an actual terrorist plot to commit violence.
Americans for Limited Government President Rick Manning issued a statement offering separately that if somebody on a watch list attempts to purchase a gun, law enforcement would simply be notified.
“During the background check on a gun purchase if a terror watch lists gets pinged, the FBI should be notified with all of the information on the individual,” Manning offered. “The FBI can then decide whether to go to a judge to increase surveillance based upon the individual facts. The citizen isn’t denied rights, but the cops are notified and if they feel there is a danger, they have every right to pull someone in for questioning and even execute a search warrant if the concerns are big enough.”
Manning added, “This doesn’t expand police power at all, but rather just notifies them of activity that may be significant in dealing with someone who has already been pre-identified as a potential terrorist.”
Such an alert system would not run afoul of due process, since it keeps up the presumption of innocent until proven guilty. Cops would still have to go get a warrant to make an arrest for an actual crime.
Instead, on Capitol Hill, amendments are sprouting up on both sides of the aisle muddling any debate on the clear constitutional issues posed by these proposals. In an attempt to seem “ahead on the issue” members are throwing out proposals without much clarity.
The result of this mess is clear, it seems unlikely any of this poor legislation will actually be passed. Which is just as well.
But while a sudden change of heart might seem noble following the Orlando massacre by an Islamist killer, in reality these decisions appears to be far more political — and could prove detrimental to constitutional due process rights if actually enacted into law.
Natalia Castro is a contributing editor at Americans for Limited Government. Robert Romano is the senior editor of Americans for Limited Government.