In the United States, a person the government suspects might be a terrorist can, in most cases, still walk into a gun store and come out with a deadly assault weapon. It’s exactly what Omar Mateen did, before he used that gun to murder 49 people at an Orlando nightclub Sunday morning.
Democrats are now arguing, loudly and relentlessly, that legislation currently stalled in Congress might have stopped that transaction, hoping that in the wake of the deadliest mass shooting in US history, they may finally have the political momentum to push through a measure that would prevent people on terrorist watchlists from purchasing firearms. And in the Senate on Wednesday, they mounted an old-school, talking filibuster to make that case.
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“I’m at my wit’s end,” declared Connecticut Democrat Chris Murphy, who led the charge, promising to “remain on this floor until we get some signal, some sign that we can… get a path forward on addressing this epidemic in a meaningful, bipartisan way.”
After years of losing ground to the GOP and the NRA, it appears that Democrats may have finally found a gun control fight they can win. “If the FBI is watching you for suspected terrorist links, you shouldn’t be able to just go buy a gun,” Hillary Clinton, the likely Democratic presidential nominee, told an audience in Cleveland Monday. Later, in an interview with NPR, she suggested that those watchlist databases should even be broadened in effort to prevent future lone-wolf attacks.
President Barack Obama also piled on, reiterating his call for legislation that would stop people on terrorist watchlists from buying guns. “The fact that we make it this challenging for law enforcement even to get alerted that somebody who they are watching has purchased a gun—and if they do get alerted sometimes it’s hard to stop them from getting a gun—is crazy,” he told reporters in the Oval Office on Monday.
But the real battle is in the Senate, where Democrats see an opportunity to force Republicans to either buck the gun lobby, or vote to let would-be terrorists buy guns. The attack ads basically write themselves. Already, gun control advocates are taking to the airwaves to trash the GOP for opposing the new gun control measure, and accuse the party of shilling for the National Rifle Association.
“Shame on them,” New York Police Commissioner Bill Bratton said Tuesday. “Shame on them that they are totally beholden—they prostitute themselves in front of the NRA. They put the interest of their own political careers and that of the NRA ahead of the American people.”
In Congress, the legislation in question is based off of last year’s provocatively named Denying Firearms and Explosives to Dangerous Terrorists Act, authored by Democratic Senator Dianne Feinstein in the wake of the mass shooting in San Bernardino, California. The bill, which failed last year on a largely party-line vote, would not automatically ban gun purchases by those on watchlists, but rather flag the purchases for the Justice Department, where the US attorney general would have the power to block the sales.
In a conference call with reporters this week, Feinstein cited a 2015 Government Accountability Office report that found people on terrorist watchlists were able to clear background checks and successfully purchase firearms in 455 out of 486 attempts. In light of the numbers, it’s not surprising that terrorists in the US have increasingly turned to guns rather than harder-to-obtain explosives to carry out attacks: According to analysis by FiveThirtyEight, between 2002 and 2014, 85 percent of people murdered by terrorists in the US were killed with a gun.
“Without doing this, without making the change, we’re just asking people to come into this country and go out and buy a gun,” Feinstein said.
And in an unpredictable election year, where control of the Senate majority at stake, there are signs that some Republicans may be coming around. In remarks to reporters Tuesday, Senate Majority Leader Mitch McConnell said he was “open” to serious suggestions about keeping guns out of the hands of terrorists, as did South Carolina Senator Lindsey Graham.
Meanwhile, Ohio Senator Rob Portman, who faces a tough reelection fight this fall, appears to have flipped his position on the issue. “I hope that the entire Senate votes to say that if you’re on the terrorist watchlist – not just the no-fly list, which is a much more targeted list, but the terrorist watchlist – you should not be able to buy a weapon,” Portman told reporters on a conference call this week.
Unsurprisingly, one Republican who doesn’t seem concerned by the civil liberties questions is Donald Trump. The presumptive GOP presidential nominee tweeted Wednesday morning that he will meet with the NRA to talk about the proposed ban on gun sales to those on the terror watchlist, which he has said he supports.
In a statement, the NRA responded that it was “happy to meet with Donald Trump,” but confirmed that its position has not changed since the last time Democrats picked this fight.
“If an investigation uncovers evidence of terrorist activity or involvement, the government should be allowed to immediately go to court, block the sale, and arrest the terrorist,” said Chris Cox, executive director of the NRA’s Institute for Legislative Action. “At the same time, due process protections should be put in place that allow law-abiding Americans who are wrongly put on a watchlist to be removed.”
Most Republicans continue to take a similar stance. Second Amendment advocates and civil libertarians suspicious of government surveillance argue that the issue isn’t quite as simple as Democratic messaging. According to this argument, allowing people on watchlists to buy weapons is just an unfortunate consequence of living in a democracy that ensures due process rights—and that constitutional guarantee can’t just be revoked at the whim of secret government lists.
“I’m more comfortable with a system where someone on the watchlist creates a red flag when they buy a gun, so the FBI can investigate,” Matt Mayer, a fellow at the right-leaning American Enterprise Institute and a former senior official at the Department of Homeland Security, said in an interview. “I’m not as comfortable saying someone should be automatically barred, because you’re essentially finding someone guilty before proven innocent. If they’re on the list improperly, then you’re interfering with someone’s right to bear arms.”
According to a 2014 investigation by the Intercept, 40 percent of the nearly 700,000 names in the FBI’s Terrorist Screening Database—a consolidated database of watchlists, including the that includes the famous “no-fly list”—were not linked to any specific terrorist group; Feinstein’s bill would apply to the names in that database.
Supporters of the measure note that anyone denied a gun will be able to challenge the Justice Department’s decision, first with an administrative appeal and then in court. Which is great, assuming the alleged terror suspect has the time and resources to sue the federal government.
“Our view is there is no constitutional bar to the reasonable regulation of guns,” Hina Shamsi, director of the ACLU National Security Project, said in an interview with VICE. “Theoretically, the government could use watchlists as one tool, but that would require a major overhaul of watchlist system.
“It doesn’t take much to get yourself on a terrorism watchlist,” Shamsi added. “On the front end, it results in people being wrongly listed, and on the back end, there’s not a fair process to correct government errors.”
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