In the wake of Orlando, Democrats finally have found a way to begin stripping Americans of their Second Amendment rights. First, they’ll strip them of their Fifth Amendment rights.
On Wednesday, Connecticut senator Chris Murphy conducted a 14-hour filibuster demanding that Congress, among other things, prohibit Americans in the FBI’s Terrorism Screening Database, the formal name for the so-called terror watchlist, from legally purchasing firearms — what he calls the “terror gap.” But just as there is no “gun-show loophole,” there is no “terror gap.” There is, rather, a Fifth Amendment, which declares that no person shall “be deprived of life, liberty, or property, without due process of law.” People on the terror watchlist are allowed to purchase a gun because they have gone through no legal process that justifies their being stripped of the right to do so.
The Terrorism Screening Database is a reasonable part of a necessarily aggressive counterterrorism strategy, but it’s also just a list. It is maintained behind closed doors at the FBI. Names are added by anonymous government officials. No one knows when his name has been added to the list, and there are no legal procedures for having one’s name removed. And being added to the list does not mean that one has committed a crime or even been charged with one. Additionally, on the rationale of better-safe-than-sorry, the database intentionally casts a wide net — which is why the “no-fly list,” which is compiled using database names, has caught up several toddlers, Weekly Standard writer Steve Hayes, and former Massachusetts senator Ted Kennedy. Clearly, the list is less than foolproof. But the Democrats’ proposal is that having your name written down by a bureaucrat in the Department of Justice is sufficient grounds for revoking your Second Amendment rights.
As usual, this push for restricting gun rights has nothing to do with the event upon which it is ostensibly based. Omar Mateen, the Orlando attacker, was not on the terror watchlist when he purchased the weapon used in the shooting. Following multiple inquiries by the FBI, he was removed in 2014. In a saner age, lawmakers might ask what measures are available to ensure that suspicious individuals such as Mateen do not fall through the cracks in the future. Instead, Democrats have simply increased the scope of their proposal. California senator Dianne Feinstein has proposed legislation that would prohibit firearms not only to those currently on the watchlist, but also to those who have been on it at any point in the preceding five years. That is, she wants the government to be able to restrict Americans’ constitutional rights not only if they are suspicious, but also if they were suspicious five years ago.
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Emotions are understandably high after the weekend’s horror, and it seems like common sense to want to keep dubious individuals from obtaining weapons. But American law operates according to the principle of the due process of law. Murphy, Feinstein, and their congressional colleagues seem to have forgotten this. West Virginia senator Joe Manchin even said on Thursday that “due process is what’s killing us right now.”
#share#Events such as Orlando are horrifying. But it’s worth remembering that mass shootings constitute less than 0.5 percent of all gun deaths, and that the homicide rate in the U.S. — despite a proliferation of firearms over the last decade — is at a 50-year low. Unable to reconcile themselves to these facts, Democrats have chosen to ignore them and pretend otherwise. The consequence of this preference for fantasy over reality — which is so powerful that it has managed to transform an Islamic State–loving terrorist who passed a background check into a Baptist NRA member toting a machine gun — is a neglectful approach to balancing constitutional liberties with security.
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There are more-reasonable ways to address this problem. Texas senator John Cornyn, a Republican, has proposed the “Shield Act,” which would give the attorney general the authority to delay by up to three business days the sale of a firearm to anyone who is a known or suspected terrorist, or who has been the subject of a terrorism investigation in the last five years. If the AG believes that there is probable cause that the prospective buyer is involved in terrorism, and a judge agrees, he can block the sale and take the individual into custody. The terror watchlist remains an imperfect tool for assessing someone’s actual involvement in terrorism. But this bill would give law enforcement the time to assess the situation without radically abridging an individual’s rights.
Still, while keeping guns out of the hands of terrorists is a worthwhile endeavor, it’s not a cure-all. Terrorists kill with guns, yes, but also with bombs and knives and jumbo jets and pressure cookers. The plain fact about Orlando — which Democrats have so successfully suppressed — is that it was not a Newtown- or Columbine-style incident. It was a terrorist attack, the worst since September 11, 2001, and it should be treated as such. Our efforts, post-Orlando, should be first and foremost engaging in the aggressive tactics necessary to root out terrorists already in the country, and ending the dominance of the terrorist outfits operating overseas and exporting their ideology to our shores. That can be done without threatening Americans’ constitutional rights.