Candidly, it’s unbelievable and inexcusable that Republicans are finding more ways to block Congress from keeping guns away from these dangerous individuals–the vast majority of whom are foreign nationals. And it’s even more egregious considering 86 percent of Americans support doing so.
First, some background: There are currently 10 categories of individuals blocked from buying guns through the National Instant Criminal Background Check System.
Those categories include felons, those under felony indictment, fugitives from justice, drug users or addicts, those committed to mental institutions or adjudicated as mentally defective, foreign nationals here unlawfully or on non-immigrant visas, those dishonorably discharged from the military and those under a domestic violence restraining order.
One category that cannot be blocked from buying guns is known or suspected terrorists.
Law enforcement investigates and monitors these individuals using the FBI’s Terrorist Screening Database, commonly referred to as the terrorist watch list. The watch list is comprised of fewer than 5,000 Americans and more than 900,000 foreign nationals.
According to FBI data compiled by Government Accountability Office, known or suspected terrorists on the watch list who undergo background checks to buy guns pass their checks 91 percent of the time. This means they did not fall into one of the 10 prohibited purchaser categories.
Between February 2004 and December 2015, these individuals passed 2,265 of 2,477 initiated background checks. That means of all known of suspected terrorists who went through a background check to buy a gun, 91 percent of them passed the check and were approved to buy a gun.
These numbers should sound the alarm. Known and suspected terrorists who threaten public safety are able to easily–and legally–buy guns.
For example, Khalil Abu-Rayyan was under FBI investigation earlier this year for making “increasingly violent threats” to others about “committing acts of terror and martyrdom.”
While under investigation, he purchased a .22 caliber revolver at a sporting goods store in Dearborn Heights, Mich. Later, Abu-Rayyan stated that he plotted an attack against a church.
Fortunately, police confiscated the weapon during a traffic stop. Abu-Rayyan was in possession of drugs and charged for possessing a gun while using a controlled substance.
This case shows the potentially dangerous situations we’re talking about.
Under the NRA-backed bill, the gun sale would proceed after 72 hours unless the government wins a court hearing establishing probable cause that the suspected terrorist has committed or intents to commit an act of terrorism.
Before the hearing could occur, the government would need to file an emergency petition, notify the suspected terrorist, allow the suspected terrorist to secure a lawyer and schedule the hearing at a time all parties could be present.
Any lawyer or judge would tell you that it would be impossible to meet this 72-hour deadline.
The unworkable time constraint is not the only serious flaw in this bill.
First, if there is enough evidence to establish probable cause in a judicial hearing, there is enough evidence to arrest an individual, search his/her home and car, seize his/her property and indict the individual.
The Justice Department would not need to pursue a hearing to block a gun a sale if the suspected terrorist could be arrested on terrorism-related charges.
Second, the Justice Department would not risk revealing a covert investigation to suspected terrorists and their lawyers, particularly if classified information would be presented in open court.
The bottom line is this process is designed to fail, preserving the dangerous status quo that allows known or suspected terrorists to easily get their hands on guns.
Republicans claim that this unworkable process is needed to protect due process rights under the Second Amendment, but that is simply not true.
Courts have routinely upheld laws that “keep guns out of the hands of presumptively risky people,” even without a conviction or a court hearing before the denial of the gun transfer.
Known or suspected terrorists certainly fall into this category.
House Democrats are calling for a vote on an alternative bill, which was introduced by Republican Congressman Peter King.
It would give the attorney general the authority to block a gun sale to known or suspected terrorists, while protecting due process rights.
It allows an individual who believes they were mistakenly denied a gun to learn the reason for the denial and appeal that decision–both administratively with the Justice Department and judicially.
The administrative appeals process is the same process currently in place for anyone who believes they are wrongly denied a gun through the background check system. Gun buyers have used this procedure and suspected terrorists should be no different.
The bottom line is that to reduce the risk of terrorist attacks in this country we need to make it harder for known or suspected terrorists to get their hands on weapons.
Allowing the attorney general to block gun sales to these individuals is a commonsense step that would help protect the public and is consistent with the rule of law.