Rep. Lee Zeldin hopes to bar “known or suspected terrorists” from purchasing weapons that might be used to attack Americans.
The New York Republican has a plan to allow the Justice Department to intervene when officials believe that a dangerous person is close to obtaining firearms or explosives. It’s not a new goal; the Protect America Act seeks to revive one of the most contentious congressional debates of 2016, when Democrats shut down the House to demand gun control legislation after the Orlando nightclub shooting.
Zeldin hopes that a less-charged political atmosphere might give his bill a better chance of passage than its predecessors. “I don't know if any member of Congress who is in favor of terrorists being able to purchase firearms or explosives,” he told the Washington Examiner. “And it’s unfortunate when there are soundbites dividing members who all agree that terrorists shouldn't be able to acquire firearms or explosives.”
His legislation, which was drafted in 2015, bears the marks of the post-Orlando debate. As Democrats called for “no fly, no buy” — a proposal to ban sales of firearms to individuals on federal no-fly lists — Zeldin agreed that those individuals should receive extra scrutiny. And, in light of the fact that Orlando shooter Omar Mateen had been removed from a terrorist watch list prior to carrying out the attack, Zeldin wants the Justice Department to have access to the names of anyone on the watch lists in the previous five years.
Zeldin’s bill breaks with analogous legislation by requiring the Justice Department to initiate a legal process to block a gun sale. “The burden should be on the government to prove whether someone is a known or suspected terrorist,” he said.
That’s a gesture toward the constitutional question that caused previous "no fly, no buy" style bills — including Zeldin’s — to founder in Congress. Lawmakers, particularly conservative Republicans, opposed those bills on the grounds that they violate the Fifth Amendment guarantee that no American “be deprived of life, liberty, or property, without due process of law.” They believe that a federal law restricting the Second Amendment right to bear arms, because federal officials suspect but can’t necessarily prove that an individual is a terrorist risk, would violate those protections.
Zeldin said he shares those concerns. “While we want to prevent terrorists [from buying weapons], we also don't want to violate the due process rights of law-abiding Americans,” he said.
His bill seeks to navigate the problem through a series of measures, technical and procedural. First, it would require federal officials to scrub their databases of any individuals whose names were added to the list by mistake. Then, the Justice Department would receive a notification whenever an individual who has been suspected of terrorism within the past five years attempts to buy a gun or explosive material. At that point, the attorney general would have the authority to delay the sale “for a period not to exceed 72 hours” and then file an emergency petition to ask a judge to block the purchase indefinitely.
A red flag wouldn’t necessarily lead the DOJ to interdict a sale. “That would have to be a decision that the attorney general would choose to make,” Zeldin said. “Often, in the course of an investigation, different crimes may be committed and they are documented but an arrest isn’t made.”
In any case, the final decision over a sale would be made at a trial, which Zeldin notes would allow the would-be purchaser to contest the matter with a lawyer. That said, the government would have to show only probable cause for suspecting a terrorist connection, rather than proving something beyond a reasonable doubt.
“The standard of probable cause is higher than a standard of showing reasonable suspicion, for example,” Zeldin noted. “The bill itself defines it a little bit further that they have committed or are furthering plan to commit an act of terrorism.”
That’s not good enough for the Republicans most concerned about due process. “If criminal due process mirrored process in [Zeldin’s] gun bill, then every American charged with a crime would be deemed guilty without trial,” Rep. Justin Amash, R-Mich., said during the last round of gun control debates.
Notably, however, the National Rifle Association appears to be giving lawmakers some running room on the subject. Zeldin’s foray into the matter in 2016 didn’t cost him NRA support, as he retained his “A” rating from the nation’s leading gun rights group. The organization’s legislation office did not return a request for comment.
That doesn’t necessarily translate into enthusiasm for the bill, even among members of Congress who might support it. “There are concerns amongst some people who believe that a piece of legislation related to firearms can become a slippery slope as it's going through regular order,” Zeldin said. “There are amendments and things that get added that are bad policy.”
As in most political issues, public opinion will dictate the outcome, he predicted — perhaps following a future attack by a terrorist with a firearm.
“If history is any lesson, this is the type of bill that may not move through Congress and to the president’s desk without another unfortunate shooting that gets the American people asking for it,” Zeldin said.