Sorry Democrats, But There Is No ‘Loophole’ That Allows Terrorists To Legally Buy Guns

Sorry Democrats, But There Is No ‘Loophole’ That Allows Terrorists To Legally Buy Guns

In their zeal to defeat Republican terrorists, Democrats have decided that the constitutional right to due process is a loophole that must be closed
Sean Davis
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Having overwhelmingly lost the public debate about whether the Obama administration’s Syrian refugee screening policy should be enhanced, Democrats have retreated to more comfortable rhetorical ground: demanding more gun control.

Their new secret weapon? A bill that would ban anyone whose name appears on a terror watch list from buying or possessing a firearm. The idea sounds reasonable enough until you dig into the details and realize that the proposed Democratic legislation is a shocking assault on the constitutional right to due process. What makes the proposal even worse is that the Democrats’ assault on due process isn’t necessary to accomplish what they say is their only goal: preventing “dangerous terrorists” from legally purchasing or possessing a firearm.

The new bill, which Democrats have dubbed the Denying Firearms and Explosives to Dangerous Terrorists Act of 2015, gives the U.S. attorney general the authority to “deny the sale, delivery, or transfer of a firearm or the issuance of a firearms or explosives license or permit to dangerous terrorists.”

According to several Democratic sponsors of the bill, the proposed law would allow the attorney general to deny a criminal background check clearance to any individual whose name appears on the national terror watch list. The huge problem with this expansive new power is that there are precisely zero statutory criteria for inclusion on this massive list. In fact, when statutory authority for the centralized government database was first codified into law via the Intelligence Reform and Terrorism Prevention Act of 2004, Congress gave all authority for determining criteria for inclusion in the watch list to unelected, unaccountable government bureaucrats. If some faceless Beltway bureaucrat decides you might be a terrorist, then you’re a terrorist. End of story.

It gets even worse, though. If your name erroneously appears on that watch list, which as of 2013 included nearly 900,000 names, the Democrats’ proposed legislation renders you virtually powerless to find out why your name is on there, let alone to have it removed. And having your name erroneously or fraudulently added to that list isn’t as far-fetched as you might think.

In 2014, for example, Weekly Standard writer and Fox News contributor Stephen F. Hayes was informed that somebody added his name to the Department of Homeland Security’s terrorist watch list. There is zero credible evidence that he has any ties whatsoever to terrorism or to any terrorist organizations. Yet, under the Democrats’ new bill, he and everyone else who is erroneously listed would be banned from ever purchasing or possessing a firearm. Hayes’ apparent crime was traveling overseas for a cruise. Hayes is not alone. Each year, thousands of names end up on the terror watch list for no good reason whatsoever.

Under the Democrats’ proposal, the government doesn’t have to tell you why your name is on the list. The proposed law allows the government to keep that information secret. And if you decide to take the government to court over it, the Democrats’ bill creates a brand new legal standard that tilts the scales of justice against you.

Unlike a standard criminal trial, in which a jury must decide beyond a reasonable doubt whether you have violated a criminal law, under this proposed law the government must only show a preponderance of evidence–evidence which will almost certainly be redacted–in order to strip you of your Second Amendment right to defend yourself and your family from terrorists:

In any case in which the Attorney General has denied the transfer of a firearm to a prospective transferee pursuant to section 922A of this title or has made a determination regarding a firearm permit applicant pursuant to section 922B of this title, an action challenging the determination may be brought against the United States. The petition shall be filed not later than 60 days after the petitioner has received actual notice of the Attorney General’s determination under section 922A or 922B of this title. The court shall sustain the Attorney General’s determination upon a showing by the United States by a preponderance of evidence that the Attorney General’s determination satisfied the requirements of section 922A or 922B, as the case may be. To make this showing, the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security.

Remember, you don’t have to be convicted of any crime whatsoever to end up on the terrorist watch list. You don’t even have to be charged with a crime to lose your constitutional rights under the proposed law. If this proposed legislation were to become law, some DHS bureaucrat–perhaps the type of bureaucrat who wrote earlier this year that “right-wing terrorists” pose the biggest threat to American national security–only needs to snap his fingers and add your name to the blacklist in order to immediately deprive you of your Second Amendment rights and your constitutional right to due process. You don’t even get to review the entirety of the evidence against you.

The blatant unconstitutional deprivation of due process is more than sufficient reason to oppose this piece of legislation, but it’s not the only reason. There may actually be an even bigger reason to reject it: it is completely unnecessary, because the U.S. attorney general already has the power to prevent “dangerous terrorists” from legally buying guns, and that power can be exercised without unconstitutional deprivation of due process.

All the attorney general has to do to prevent “dangerous terrorists” from legally purchasing firearms is to indict them. That’s it. Charge these terrorists with terrorism, and their legal right to purchase firearms goes up in smoke. That’s because existing federal law states that anyone who’s been indicted for any crime that carries a prison sentence of more than one year–and felony indictment for conspiracy to commit terrorism certainly satisfies that standard–automatically becomes ineligible to purchase or possess a firearm:

The Gun Control Act (GCA) makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms. 18 USC 922(g). Transfers of firearms to any such prohibited persons are also unlawful. 18 USC 922(d).

These categories include any person:

Under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year;

convicted of a crime punishable by imprisonment for a term exceeding one year;

who is a fugitive from justice;

who is an unlawful user of or addicted to any controlled substance;

who has been adjudicated as a mental defective or has been committed to any mental institution;

who is an illegal alien;

who has been discharged from the military under dishonorable conditions;

who has renounced his or her United States citizenship;

who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or

who has been convicted of a misdemeanor crime of domestic violence (enacted by the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, effective September 30, 1996). 18 USC 922(g) and (n).

The language in the Democrats’ new gun control bill certainly suggests that these “dangerous terrorists” should be indicted for terrorism. After all, it gives the attorney general authority to deny background check clearance to anyone “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[.]”

Engaging in terrorism is a federal crime. Providing material support for terrorism is a federal crime. Preparing to engage in terrorism is a federal crime. If there is sufficient evidence to show that these individuals are engaged in terrorism, the best way to make America safer is to indict these terrorists and arrest them.

The attorney general absolutely has that power, which raises a very troubling question given the premise of the Democrats’ proposed legislation: why are hundreds of thousands of known, dangerous terrorists walking free in America right now? Why have they not been indicted for their crimes? Why is American law enforcement not working 24/7 to secure indictments for these terrorists, to arrest them, and to convict them for their crimes against America?

The simple answer is that there’s not sufficient evidence to indict, let alone convict, the hundreds of thousands of names included on the terrorist watch list. Once you realize that fact, you realize that the purpose of this bill isn’t to prevent “dangerous terrorists” from possessing guns–the attorney general can already accomplish that with a simple indictment–it’s to prevent evil Republicans from possessing political power. The proposed legislation from Democrats is nothing more than a clumsy attempt at wedge-issue politics: rather than dealing with an actual terror threat from ISIS, just pretend that Republicans and the monstrous National Rifle Association are hell-bent on protecting a “loophole” that allows dangerous terrorists to get guns.

Due process isn’t a “loophole,” though. Due process is a fundamental right enshrined in the Constitution of the United States. It states that the government cannot permanently deprive you of your constitutional rights unless and until a jury of your peers has decided beyond a reasonable doubt that you have committed a criminal act.

The silly gun control proposal from Democrats attempts to turn the principle of due process on its head. Instead of requiring a jury of your peers to determine beyond a reasonable doubt that you have committed a crime, Democrats have decided that power should belong to a handful of Washington, D.C.-based bureaucrats. Instead of allowing you to review and challenge all evidence presented against you, Democrats have decided that evidence should be kept secret. Instead of requiring a legal standard that all reasonable doubt must be eliminated prior to the government-sanctioned revocation of your rights, Democrats have decided that a mere preponderance of evidence should be plenty.

Democrats aren’t doing this because they think it’s the only possible way to prevent terrorists from acquiring weapons. We know this because we’ve established that the attorney general already has all the power she needs to indict, arrest, convict, and sentence known, dangerous terrorists. Democrats are doing this because they think it will benefit them politically. In the wake of a massive terrorist attack on free, innocent people in Paris, Washington Democrats have decided that their real enemy isn’t ISIS. Just like Democratic presidential front-runner Hillary Clinton declared in a recent debate, their real enemies are Republicans.

And they’ll do whatever they can to defeat these dangerous electoral terrorists…even if it requires the wholesale elimination of the constitutional right to due process.

Sean Davis is the co-founder of The Federalist.
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