War on Terror

To Keep Your Second Amendment Rights, 'Show You're Not a Problem'

Why are avowed civil libertarians so eager to abandon due process and the Bill of Rights?

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Office of Mike Thompson

In a recent interview with The Washington Post's Greg Sargent, Rep. Mike Thompson (D-Calif.) defends the Denying Firearms and Explosives to Dangerous Terrorists Act, which would strip people on the FBI's so-called Terrorist Watchlist of their Second Amendment rights: 

Sargent: People have raised some fairly serious concerns about the Terrorist Watchlist and No Fly List—that there is no due process, that it essentially violates the presumption that people are innocent until proven guilty.

Thompson: Number one, it's not a prohibition against someone from buying guns if you're on this list. It's a pause to make sure that you should rightfully be on the list. If there is someone who's name is on the list and they shouldn't be there, it doesn't stop you from being able to buy a gun. It's just going to delay your ability to buy a gun until that's clear.

There are a number of reasons that you can be prohibited from buying a gun. You can be a domestic abuser. You can be dangerously mentally ill. You can be a felon. This just adds one more column—that is, if you're on that list, unless you get cleared, and show you're not a problem, I don't believe you should be able to get a gun.

All of the disqualifications that Thompson mentions involve more due process than he would give people on the watch list. People accused of felonies or of domestic-abuse misdemeanors must either plead guilty or be convicted based on proof beyond a reasonable doubt. People who are compelled to undergo psychiatric treatment generally have to be proven a threat to themselves or others by "clear and convincing" evidence. By contrast, the bill that Thompson supports deprives people of their constitutional rights based on mere suspicion.

The Denying Firearms and Explosives to Dangerous Terrorists Act sounds highly selective, focusing not just on terrorists but on "dangerous terrorists" (leaving the harmless ones alone?). But the bill gives the attorney general essentially unlimited power to block gun sales, provided he "determines" that the buyers are "appropriately suspected" of involvement in terrorism and "has a reasonable belief" that they "may" use the firearms "in connection with terrorism." As Scott Shackford noted last week, that language suggests blocked buyers need not even appear on the Terrorist Watchlist, which is supposedly limited to individuals "reasonably suspected of being involved in terrorist activity" but may include more than 1 million people, perhaps two-fifths of whom have "no recognized terrorist group affiliation." 

The "pause" imposed by the attorney general becomes a full stop unless a buyer appeals the determination within 60 days, at which point the government need only prove by "a preponderance of the evidence" (which amounts to any probability greater than 50 percent) that the attorney general met the statutory requirements. In other words, the government must show it's more likely than not that the attorney general's suspicions were reasonable, which is even easier than showing it's more likely than not that the appellant actually is a terrorist. If there is, say, a 30 percent chance that a reasonable suspicion is correct, this standard would amount to a 15 percent chance that an appellant is a terrorist. Furthermore, the government can avoid showing the appellant evidence against him by claiming that doing so would jeopardize national security.

As far as Thompson is concerned, that's plenty of due process, since to reclaim your Second Amendment rights you need only "show you're not a problem." I think that is what Sargent had in mind when he noted that critics of the bill believe "it violates the presumption that people are innocent until proven guilty." Thompson, who has received the highest possible rating from the American Civil Liberties Union (ACLU), does not seem to understand why that's a problem:

Sargent: What about just the implications of the Terrorist Watchlist and No Fly List? Don't those in and of themselves raise concerns? What they do is they presume guilt without any sort of due process or charge.

Thompson: They presume these are people we ought to watch. Hence the "Terrorist Watchlist."…If you're on that list, they don't round you up and lock you up. They're watching you.

Sargent: But you are denied the right to travel.

Thompson: That's true. And I believe should be denied the right to buy a gun.

Sargent: You said that this doesn't actually deny you the right to buy a gun. Are you saying it forces you into a process by which you appeal and determine whether you're supposed to be on the list?

Thompson: Correct….If it's justified that you should be on that list, then under this bill you wouldn't be able to buy a gun. You wouldn't be able to buy explosives.

Sargent: To clarify, even if you are forced to go through the process, the end result is that you could end up being denied a gun even though you haven't been charged or convicted of anything.

Thompson: That's correct.

The Senate rejected a similar bill on December 3, the day after the San Bernardino massacre, by a vote of 54 to 45. Only one Democrat, North Dakota's Heidi Heitkamp (D-N.D.), opposed the measure. Thompson is trying to force a vote on the House bill, which was introduced by Rep. Peter King (R-N.Y.) and has 91 cosponsors, all but two of them Democrats. As in the Senate, they include a bunch of legislators who in other contexts have resisted the erosion of civil liberties by the War on Terror and who have received strong ratings from the ACLU, which describes the Terrorist Watchlist as a "virtually standardless" dragnet that "ensnares innocent people and encourages racial and religious profiling." In addition to Thompson himself, examples of civil libertarians who abandoned due process and the Bill of Rights to show that Democrats can be tough on terrorism include Tennessee's Steve Cohen (ACLU rating: 100 percent), Colorado's Jared Polis (84 percent), New York's Jerrold Nadler (100 percent) and Nita Lowey (84 percent), and California's Sam Farr (100 percent), Barbara Lee (100 percent), Zoe Lofgren (92 percent), and Adam Schiff (84 percent).