The Senate, reacting to last week's massacre at an Orlando nightclub, will soon consider three different proposals aimed at preventing suspected terrorists from buying guns. The most constitutionally offensive is an amendment from Sen. Dianne Feinstein (D-Calif.), while the least problematic is a bill sponsored by Sen. John Cornyn (R-Texas), which would require that the Justice Department have enough evidence to support a terrorism charge if it wanted to block a firearm purchase longer than three days. The third proposal, from Sen. Susan Collins (R-Maine), tries to split the difference between the Feinstein and Cornyn bills.
The reliably authoritarian Feinstein took her already egregious Denying Firearms and Explosives to Dangerous Terrorists Act of 2015 and managed to make it even worse, giving the Justice Department broader authority to block gun purchases and granting would-be buyers even less opportunity to get their Second Amendment rights back. Under Feinstein's 2015 bill, the attorney general can stop the transfer of a firearm if he "1) determines that the transferee is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism" and "(2) has a reasonable belief that the prospective transferee may use a firearm in connection with terrorism." The amendment Feinstein introduced last Wednesday, by contrast, lets the attorney general block a sale if he "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 thereof."
In the revised version, there is no additional requirement that the attorney general have reason to believe the weapon the suspect is trying to buy will be used in a terrorist attack. Hence an old lady who cut a check to a Hamas-affiliated charity (thereby "providing material support" to terrorism and arguably threatening public safety) could be stopped from buying a handgun for self-defense even if there was no evidence that she planned any sort of attack with it. Feinstein's amendment also expands the dragnet beyond the FBI's so-called Terrorist Watchlist, which is believed to include more than 1 million people, to cover anyone who was under investigation for "conduct related to a federal crime of terrorism" during the previous five years. The Justice Department would be notified of attempted gun purchases by people who fit that description, giving it a chance to block the sales.
Feinstein's earlier bill notionally allows someone stripped of his Second Amendment rights to challenge the attorney general's decision, but on terms very favorable to the government, which need only show it is more likely than not that the statutory criteria were met. The upshot is that people could permanently lose their constitutional rights based a low probability that they are involved in terrorism—perhaps on the order of 10 or 15 percent, depending on how "appropriately suspected" and "reasonable belief" are defined. Feinstein apparently decided that standard was too demanding, because her amendment says only that someone wrongly prevented from buying a gun can make use of "the remedial procedures set forth in section 103(g) of Public Law 103-1059."
That provision of the Brady Handgun Violence Prevention Act lets a would-be gun buyer ask the Justice Department to correct "erroneous system information" that resulted in a failed background check. If someone is mistaken for an actual terrorist with a similar name, this provision might help. But if he wants to contest the attorney general's determination that he "represents a threat to public safety," he is apparently out of luck. In fact, as with Feinstein's 2015 bill, the Justice Department might not even have to tell him why his gun purchase was blocked, since it can withhold "information that is likely to compromise national security or ongoing law enforcement operations."
Cornyn's proposal, which is supported by the National Rifle Association, evinces considerably more respect for due process and the Second Amendment. It allows the Justice Department to delay the transfer of a gun to someone who is "a known or suspected terrorist" or who has been "the appropriate subject of a terrorism investigation within the last five years." The government then has three days to persuade a judge there is probable cause to believe the suspect is involved in terrorism—the same standard that must be met to arrest someone. In that respect Cornyn's bill resembles the existing ban on gun purchases by people facing felony charges.
Collins is working on a Goldilocks proposal aimed at those who think that Feinstein's amendment gives the Justice Department too much power to disarm people but that Cornyn's bill gives it too little. Although her idea has not been completely fleshed out yet, The Wall Street Journal reports that it would ban gun sales to "terrorism suspects who appear on either the government's 'no-fly list' or on a separate 'selectee list' that requires additional screening at airports," as opposed to the broader Terrorist Watchlist. The Journal says "individuals could appeal the decision blocking the purchase of a firearm," but it's not clear what the government's burden would be. Collins also would require that the Justice Department be notified when someone who was on one of those lists in the previous five years tries to buy a gun.
That last provision, like the similar ones in Feinstein's amendment and Cornyn's bill, was written with someone like Omar Mateen, perpetrator of the Orlando attack, in mind. Mateen was investigated twice for possible terrorist connections and appeared on at least one watch list during those investigations, but his name was removed after the FBI found no evidence to substantiate its suspicions.
"Over the past decade," Feinstein complains, "91 percent of individuals who are known or suspected terrorists passed background checks, showing this is a pervasive problem. My amendment would simply allow the attorney general to block gun sales to these individuals, and closing this loophole is the least we could do to reduce the risk of terrorist attacks in our country." Those "suspected terrorists" passed background checks because there was no legal reason, such as a pending felony charge, a felony conviction, or a history of forcible psychiatric treatment, to prevent them from exercising their Second Amendment rights. That is not a loophole. That is the rule of law, which Feinstein would replace with the attorney general's whims.