Democratic leaders won’t stop talking about their plan to ban anyone on the terrorism watch list from purchasing a gun, and it’s not hard to see why. President Obama’s approval rating on the issue of terrorism is in the gutter, and talking about the terror watch list gun ban helps shift the debate to an issue on which Democrats have popular support. A Quinnipiac poll released December 3 asked voters: “Do you support or oppose changing current gun laws to ban those on the U.S. government’s terrorist watch list from purchasing guns?” The result: 77 percent backed a ban while only 18 percent opposed it.
“Congress should act to make sure no one on a no-fly list is able to buy a gun,” President Obama said in his Oval Office address after the San Bernardino terrorist attack. “What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?”
There are actually several strong arguments against the Democrats’ proposed terror watch list gun ban, as many conservative writers and an increasing number of mainstream news outlets have made clear.
The Democratic proposal relies on a secret list and mere suspicion to strip some Americans of their constitutional rights. It provides no process for Americans wrongly placed on the list to get their names removed. The FBI is already alerted during the criminal background check process anytime someone on the watch list tries to purchase a gun, and it is already illegal for almost all of the people on the list to buy a gun. According to the National Counterterrorism Center, only 25,000 of the 1.1 million people on the watch list are U.S. citizens and legal permanent residents, and the Gun Control Act generally prohibits both illegal aliens and legal aliens who have “been admitted to the United States under a nonimmigrant visa” from buying guns. There have nevertheless been some high profile cases of innocent U.S. citizens–including former senator Ted Kennedy and The Weekly Standard‘s Stephen F. Hayes–being erroneously placed on the terror watch list.
What’s been lost in the debate is the fact that Republicans have an alternative to the Democratic proposal. Under Republican legislation sponsored by Senator John Cornyn, the federal government may delay the sale of a firearm to someone on the watch list for up to 72 hours. During that time, if the government can show a judge there’s “probable cause”–the same legal standard used to obtain a search warrant–that the individual is plotting terrorism, then the gun sale is denied outright. The measure received 55 votes in the Senate. It it secured the backing of staunch conservatives like Ted Cruz, Mike Lee, and Marco Rubio as well as moderate Republicans Susan Collins and Lisa Murkowski and moderate Democrats Joe Manchin and Joe Donnelly. The only Republican to oppose it was Mark Kirk.
The Democratic bill sponsored by Senator Diane Feinstein, by contrast, simply allows the federal government to ban anyone on the watch list from buying a gun. The government’s decision may be challenged in court by the prospective gun buyer, but the government’s decision will be sustained if a “preponderance of evidence” indicates that the attorney general has a “reasonable belief” that the prospective gun buyer may be engaged in terrorism.
In other words, the GOP bill puts the burden on the government to get judicial clearance, while the Democratic bill puts the burden on the individual to prove his innocence. The GOP bill requires the government to show “probable cause” to a judge, while the Democratic bill relies on a lower legal standard that a “preponderance of evidence” shows the attorney general has a “reasonable belief” that the prospective gun buyer may be a terrorist.
Why isn’t the Republican proposal good enough for Democratic leaders? “It lets the horse out of the barn. You get a gun and then after 72 hours, you know, the government can say you shouldn’t get one,” Senator Chuck Schumer of New York told me at a press conference on December 8. “What happens in those 72 hours if you buy the gun and within 24 hours you create the kind of mayhem we saw in San Bernardino? It makes no sense.”
What really makes no sense is Schumer’s statement. The claim that the Republican bill would allow a suspected terrorist to walk out of a store with a gun is simply false. In fact, the transfer is blocked during the 72 hours the investigation may take place, and the sale will be prohibited if the government can show probable cause to a judge.
A Schumer aide later clarified that the New York senator was trying to make a different point. “All an attorney on behalf of a purchaser has to do is delay the injunction for 72 hours, which is incredibly easy to do given the slow pace of our judicial system. Then the sale goes through – that’s the point he was making,” Schumer aide Matt House wrote in an email.
“That’s not what Sen. Schumer said. He falsely claimed that under the Cornyn proposal, a known or suspected terrorist would be able to purchase a gun right away, then potentially have it taken away,” a Cornyn aide replied. “Under Sen. Cornyn’s proposal a known or suspected terrorist would be blocked from purchasing a firearm while the Justice Department investigates. And under the Cornyn proposal, an attorney for the purchaser has no ability to delay the government from showing probable cause in an emergency court proceeding.”
So who’s telling the truth–the Schumer aide or the Cornyn aide? Ken White, a criminal defense attorney and former federal prosecutor who writes at the libertarian-leaning Popehat.com, writes in an email that “it’s hard to tell what the proceeding would look like. But I see nothing suggesting that the defense lawyer can demand a continuance or say ‘I’m not available that day.’ And I imagine if this passed courts would come up with a procedure — probably magistrate judges for the feds, just like for search warrants and complaints.”
Even if Schumer’s aide is correct that the judicial system would simply be too bogged down to hold a hearing within 72 hours of an attempted gun purchase, that’s a problem that could be remedied by simply hiring more judges. Although if only 25,000 U.S. persons are on the terror watch list, there couldn’t be that many disputes over gun purchases in the first place.
So Democrats have not provided a truthful or strong argument against the Republican proposal. (When I asked Schumer’s spokesman if Democrats had any other objections to the GOP terror watch list legislation, he didn’t reply.) It really shouldn’t be hard to reach a compromise on the issue. Of course, it’s entirely possible that Democrats aren’t sincerely interested in closing the so-called terror watch list “loophole” instead of merely having it as a campaign issue. If it were as important as Harry Reid, Nancy Pelosi, and Barack Obama now claim it is, one would think they would have held a vote on it during the two years when Democrats had overwhelming majorities in Congress and controlled the White House. But during that time–when Democrats actually had the power to pass something–neither then-Speaker of the House Pelosi nor then-Majority Leader Reid held a single vote on gun control.
