Democratic lawmakers who’ve called for legislation that would bar suspected terrorists from purchasing firearms are meeting pushback from lawmakers and attorneys who say that the measure eviscerates individual rights.
“We don’t deprive a person of rights in this country simply because the executive branch put that person on a secret list,” Rep. Justin Amash, R-Mich., said in a statement made available to the Washington Examiner‘s media desk.
“If the government believes that a suspect is plotting an attack, then it should charge that person and present evidence in court,” he added. “The [proposed measure] instead denies rights to a person who hasn’t been charged with or convicted of anything. It has far-reaching implications and undermines all our civil liberties, not just the Second Amendment.”
A shooting last weekend at a gay nightclub in Orlando, Fla., has given a sense of renewed purpose to Democratic lawmakers, including Sens. Diane Feinstein of California, Chris Murphy of Connecticut and Joe Manchin of West Virginia, who’ve pushed to see stricter gun control measures passed in Congress.
Feinstein has presented a bill that would block the sale of firearms to persons who appear on the federal government’s so-called terror watch list. The terror database, which was established in 2003 under the Bush administration, includes people suspected, but not convicted, of terrorism.
The gun control measure currently championed by Murphy, Manchin and Feinstein would apply not only to those who are listed now on the watch list, but it would also apply anyone whose name has appeared on it in the last five years.
But opponents of the Feinstein proposal, including Amash, argue the measure could violate the Fifth Amendment to the Constitution, which requires “due process of law,” and says no one can be held to answer for a crime “unless on a presentment or indictment of a grand jury.”
“Feinstein and the senators who support her proposal treat due process, one of the foundations of our constitutional republic, as though it is a ‘gap’ or ‘loophole,'” the Michigan congressman said.
Manchin and Murphy disagree, however, and have dismissed these concerns as distractions.
“The problem we have, and really the firewall we have right now, is due process. It’s all due process,” the West Virginia senator said Thursday on MSNBC’s “Morning Joe.”
“[C]an’t we say that if a person is under suspicion, there should be a five-year period of time that we have to see if good behavior, if this person continues the same traits, maybe we can come to that type of agreement?” he asked. “But due process is what’s killing us right now.”
Later that same day, Murphy said Fifth Amendment-related arguments against the Feinstein proposal were “ridiculous.”
“It’s a red herring,” he said on MSNBC.
“The fact of the matter is that there hasn’t been a single Republican coming onto the floor to protest the lack of due process for individuals who are on the terrorist watch list who can’t fly on planes,” the senator added.
However, not everyone is so dismissive of the concerns voiced by Amash.
Gabriel Malor, an attorney in Washington, D.C., told the Examiner the proposed legislation opens wide the door to the abuse of individual rights.
“The terrorist watch list was never intended to be used to adjudicate individual rights. The watch list is an investigative tool used primarily by law enforcement upon certain triggering events, like an arrest, to collect information on suspicious persons and make that information available to appropriate authorities,” he said.
“As an information-collection tool, the watch list lacks all of the features that due process requires before the government can deprive an American of rights: namely, notice, a neutral arbiter, the ability to confront witnesses and examine evidence, a reasoned decision and the ability to appeal.
“Linking the watch list to the deprivation of a constitutional right is obviously, heinously and stupidly unconstitutional. So of course the Democrats want to do it,” Malor added.
Ken White, an attorney who co-authors the libertarian popehat.com blog, concurred with Malor, and argued the proposed gun legislation poses a real risk the rights guaranteed by the Constitution.
“The huge due process concern is about limiting any constitutional right based on what amounts to an arbitrary, mostly unreviewable, mostly secret, frequently clearly incompetent list of people,” White told the Examiner. “It’s hard to imagine a bigger due process violation.”
“The list is notoriously full of people who have done nothing at all,” he added.
He’s not alone in characterizing the watch list as shady: As recently as 2014, the New York Times’ editorial board described the “no fly list,” which is based on the terror database, as “overbroad” and “shadowy.”
White continued, “It really doesn’t matter what right [the list is] being used to deny, whether it’s the right to bear arms, the right trial or any other right. It’s the government putting you on a list according to secret justification that they won’t share.
“When you try to challenge it in court, the litigation drags on for years. The secrecy procedures will deny you information about why you’re on the list, and it’s very rare to be taken off. If you do manage that, it’s only after years of litigation, effort and money,” he added.
Originally, he continued, the list was used to justify denying people the right to travel. Now, Democratic lawmakers are considering using the list to deny people their Second Amendment rights. Who knows what’s next, he said.
“Imagine a list like that being used to deny someone the right to speak, or the right to vote or anything like that,” White said.
Asked specifically about Manchin and Murphy, White said their attitudes were “completely contemptible.”
“Either stupid or dishonest to be saying it,” he said, adding, “there is no rational basis to believe that a list restricting any right based on this list is going to be treated any differently.
“What the Democrats are really saying is, ‘Because this restricts gun rights, we don’t give a s—-t.’
“And before, to be honest, the Republicans and most of the Democrats would say, ‘Because this is related to terrorism, we don’t give a s—-t.’ I’m disgusted with them all,” he concluded.
Spokespersons for Murphy and Manchin did not respond to the Examiner’s multiple requests for comment.
